R v SAB, 2021 ABQB 454

Court of Queen’s Bench of Alberta Citation: R v SAB, 2021 ABQB 454 Date: 20210611 Docket: 190965624Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - S.A.B. Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict. Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Accused or the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Editorial Note: The restriction on publication ended February 7, 2022. _______________________________________________________ Reasons for Decision on the Voir Dire

of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] SAB (“the Accused”) is charged with the offence of sexual assault, alleged to have occurred on July 23, 2019, contrary to

section 271 of the Criminal Code . The complainant is the late RG (“RG”), the Accused’s former common-law spouse. Her trial with a jury was originally scheduled to commence on November 30, 2020, with a jury, but was adjourned on account of the Covid-19 pandemic. A new date for the trial has been set commencing on February 5, 2022. [ 2 ] On September 14, 2020, I was appointed as the case management justice in relation to this matter, pursuant to s 551.1 of the Criminal Code . Commencing on November 30, 2020, I heard a blended voir dire to consider the admissibility of the following evidence:

a) Statements alleged to have been made by RG to hospital staff shortly after the time of the alleged offence at the Rockyview Hospital in Calgary, Alberta. The Crown seeks to admit these statements into evidence at the Accused’s forthcoming trial as res gestae or spontaneous statements, a recognized exception to the hearsay rule;

b) Statements alleged to have been made by RG on July 23, 2019, to Cst. Dylan Both, Calgary Police Service, and Dr. Sharon Szeto, the physician who conducted a sexual assault examination later that same day. The Crown seeks to admit these statements into evidence at the Accused’s forthcoming trial under the principled exception to the hearsay rule. [ 3 ] The evidence on this blended voir-dire was heard on November 30-December 4, 2020. With the consent of the Defence, a number of the witnesses gave evidence during the voir-dire remotely via WebEx. Oral argument took place on December 15, 2020.

Additional written submissions were subsequently submitted by both the Crown and the Defence. These are my reasons for decision on the voir -dire. Facts [ 4 ] An Agreed Statement of Facts (Exhibit VD-1) was filed with the court containing the following points of agreement:

a) RG was diagnosed with stage 4 metastatic bladder cancer.

b) RG was admitted to the Rockyview General Hospital, located at 7007 - 14 St SW, Calgary, Alberta (the “Hospital”) on 27 May 2019.

c) There were no treatment options for RG, and he was placed in palliative care.

d) By July 2019, RG’s physical condition was very poor: i. He was frail and weak; ii. He was emaciated and unable to stand unattended; iii. He experienced significant and ongoing pain; and iv. He was bedridden and required total care.

e) In July, attending physicians predicted RG’s death to be in the range of days to short weeks.

f) RG died in the Hospital 9 September 2019. [ 5 ] Madison Smid RN, Kevin Einarson LPN, Caitlin McVicar RN, and Nhu Phan RN, were all working the night shift at the Hospital on July 22-23, 2019. Their shift started at 11:00 pm on July 22, 2019, and ended at 7:15 a.m. on July 23, 2019. They were assigned to Unit 93, an Internal Medicine and Pulmonary unit at the hospital. McVicar was the in-charge nurse during the shift. [ 6 ] RG occupied room 9309, a single room in this unit.

Phan was the nurse assigned to care for RG during this night shift. [ 7 ] RG’s common-law spouse, the Accused, was a regular visitor at the hospital. She spent many nights sleeping at the hospital in a portable bed next to RG’s hospital bed. [ 8 ] The door to room 9309 was closed when the four nurses commenced their shift. This was not uncommon as the Accused did not want RG disturbed during the night. The blinds in between the double pane glass window next to the door to the room were closed when the nurses arrived at the room.

These blinds could be opened and shut from either side. [ 9 ] Shortly after 3:00 a.m. on July 23, 2019, McVicar and Phan were at the nursing station located approximately 20 meters

from the door leading to room 9309. Smid and Einarson were attending other patients at the time. McVicar and Phan both heard a male voice yelling in the otherwise quiet unit. They were not immediately able to identify what was being said or where the noise was coming from. They left the nursing station to investigate and quickly determined that the noise was coming from room 9309. [ 10 ] According to McVicar, the yelling sounded like sexual pleasure, and consisted of a male voice moaning and included “oh yeah”, and “you’re fucking amazing”.

The noise was continuous once it started and lasted for approximately three minutes until Einarson knocked on the door. McVicar never heard a female voice. She described the noise as loud and aggressive. She never heard the word “help” or “stop” being used. McVicar asked Einarson to go into room 9309 to tell the people to stop the noise. In cross-examination, she agreed that if she had believed that a sexual assault was taking place at the time, she would have entered the room immediately. [ 11 ] At around this time, Einarson emerged into the hall from another patient’s room.

He also heard yelling and was also uncertain where the noise was coming from. McVicar and Phan asked him if he could hear the noises. He also thought that one of the other two nurses said they may have heard words that were “sexually charged”, and “perhaps it was something like ‘ride me’ ” coming from the same direction. Einarson described the noise as muffled, but loud and repeated. The sounds were intermittent, not continuous. According to Einarson, it sounded like RG’s voice yelling out in distress, but he could not hear the words.

McVicar and Phan reported to him that they thought that the noise was people having sex. [ 12 ] According to Phan, it was not until she reached Room 93-09 that she heard the specific words being yelled. She stated that she heard RG yelling “you fucking cunt”. Before and after she heard these words, she heard loud moaning and grunting sounds. [ 13 ] Once the three nurses reached Room 93-09, McVicar and Phan asked Einarson to make further inquiries. Einarson could not see any light coming from the room, including when he opened the blinds between the two window panes.

By that point in time, the noises from the room had ceased. The room was black and he could not see anything. He then knocked once or twice on the door. After waiting for no more than ten seconds, and receiving no response, he opened the door, turned on the light, and asked whether everything was alright inside the room.

He observed RG lying on his hospital bed, but did not see anyone else in the room. [ 14 ] According to Einarson, RG immediately shouted “She’s raping me, she’s raping me” He later testified that the words used by RG were “I’ve been raped.” McVicar recalled that RG shouted “She’s raping me, don’t believe anything she’s saying, she’s raping me”. Phan, who was also standing right outside the door to the room, testified that RG repeatedly shouted “She fucking raped me. Don’t believe what she tells you.” According to Phan, RG then told the nursing staff to call the police and that she had keys to his house.

Phan described RG as “very distraught and frazzled”. [ 15 ] Einarson and Phan immediately entered the room while McVicar remained outside in the hallway. Einarson described RG as “quite agitated” and much more upset than usual. [ 16 ] According to Phan, RG was “scared and yelling”. He repeated several times the statement “she fucking raped me, don’t believe what she tells you”. When she entered the room, Phan observed that RG was lying on his back on the bed and covered in a sheet.

When she approached him, she found him to be very shaken up, physically shaking, with a very frightened expression on his face. [ 17 ] Once McVicar heard the allegation made by RG, followed by a direction from Einarson that the Accused was not to leave the unit, McVicar returned to the nursing station and called hospital security for assistance. When she got to the nursing station, McVicar told Smid what she had just witnessed. [ 18 ] Phan did not immediately see the Accused when she entered the room, but saw her emerge from the private bathroom very quickly after the nurses entered the room.

The Accused was fully dressed at the time and was seen to go in and out of the bathroom. Einarson heard RG repeat the accusation, at which point the Accused said ”He’s confused, just ignore him”. According to Phan, she heard the Accused state “Don’t listen to him. He’s confused.” She described the Accused as speaking hastily and that she was “very frazzled” as she moved rapidly towards the hospital bed.

Einarson described the Accused as “unsettled, almost surprised”, and that she was definitely different than her normal friendly self. [ 19 ] RG became more agitated as the Accused approached his bed and began to stroke his shoulder, appearing to try and comfort him. Both Einarson and Phan reported that RG yelled for the police to be called and for the Accused to leave the room immediately. RG also stated that the Accused was not to be allowed in his house, a house that he shared with the Accused.

The Accused then began to collect some things in the room and appeared as though she was about to leave. [ 20 ] At one point, RG told Einarson that he had pulled some of the Accused’s hair during the struggle and that she had scratched his forehead. Einarson observed superficial lacerations on RG’s forehead that were also noted by Dr. Szeto while conducting a sexual assault examination later that day. Einarson did not observe any scratches or marks on the Accused and never observed any strands of hair in RG’s hospital room.

Other than the three scratches noted on RG’s forehead, RG never complained of any other injuries. [ 21 ] The Accused began to search for her missing phone. At one point, she climbed on the bed on top of RG, removing the sheets covering RG in the process. RG was screaming at the Accused to “Get out. You raped me.” At that point, Phan saw that RG’s disposable diaper had been unattached on both sides, with the front pulled all the way down and exposing his genitals. Phan covered him back up and quickly moved the Accused away from RG.

According to Einarson, he heard the Accused say, almost pleadingly, “Baby Morris needs to be born.” The Accused continued to speak to RG, but Einarson does not recall the precise content of this conversation. [ 22 ] Einarson then told the Accused she had to leave and escorted her out of the room. Phan’s recollection was that she observed the Accused trying to leave the room, but was stopped by Einarson. At that point, Phan left the room, returning to the nursing station to report to McVicar and Smid what she had observed.

McVicar called security after receiving Phan’s report. [ 23 ] Einarson did not touch or restrain the Accused, but placed his body in front of her and told her she could not leave the unit. He remained with her until hospital security arrived a couple of minutes later. [ 24 ] Shortly thereafter, two security guards, Grant Wercholuk and George Mellor attended the nursing station and spoke to

McVicar and Phan. The Accused left Room 93-09 at this point and attempted to leave the unit. Einarson was, however, able to persuade her to remain and she sat down on a chair in the hallway until the hospital security guards arrived. The Accused became extremely agitated and started kicking the security guards. Two hospital peace officers, Chad Wegener and Theresa Chermishnuk, also attended shortly thereafter. Einarson took Wegener to room 9309 and introduced him to RG.

Thermishnuk attended upon the Accused. [ 25 ] Wercholuk and Mellor were both Protective Service Officers for Alberta Health Services and, as such, were responsible for the safety and general security of the hospital. They were also designated as peace officers with limited authorities under certain provincial statutes, but no authority to conduct criminal investigations. They arrived in the unit at approximately 3:30 a.m. When they arrived, Wegener saw the Accused down the hallway waving her arms and yelling. [ 26 ] Wegener spoke to RG in Room 9309.

Referring to his notes made shortly after the incident, Wegener testified that RG stated: “I woke up and she was on top of me. I was telling her to get off and screaming for help. Trying to get me to penetrate her.” Based on RG’s tone of voice, Wegener believed he was very scared, though did not find him to be confused. Wegener did not notice any injuries on RG. [ 27 ] When Wegener left RG’s room, he told the Accused that she was being arrested. She was taken to the ground, handcuffed and then escorted out of the unit. The Accused could be heard screaming and yelling as she was being escorted off the unit.

At one point, she was heard to say “you can’t arrest me. I’m calling my lawyer.” [ 28 ] Phan heard the Accused yelling and screaming while seated in the hallway prior to the arrival of the two peace officers. The yelling and screaming continued as the Accused was taken to the ground, handcuffed, and then removed from the unit. [ 29 ] According to Smid, she entered RG’s room to check on him when she saw the Accused seated in the hall near Room 9309 in the presence of the security guards. When she walked in the room, RG was lying on the bed and called out “she fucking raped me, she fucking raped me”.

He repeated this statement over and over again. When Smid then asked him what had happened, he told her “I woke from a nap and she was on top of me”. He then related that the Accused told him “It’s not too late. We need to make a baby. We will name him Morris.” RG then told Smid that he obviously could not get hard, but that the Accused had tried to put him in her. He went on to say that he did not want to be left alone in the room and repeatedly asked Smid not to leave him. He then asked whether the Accused would be allowed to come back to his hospital room and be permitted to go to his house.

He then stated: “How could the love of my life do this to me? How will I ever be able to get over this?” [ 30 ] While speaking to RG, Smid took hold of his hand and noticed that he was shaking uncontrollably. Smid had previously provided care to RG and had never seen him in such a distraught state. Smid tried to calm him down to a level where she could communicate with him. After RG told Smid what had happened, he became tearful and more withdrawn, though continued to express concern that the Accused would return.

Smid, who remained in his room for 15-20 minutes, obtained additional blankets for RG to try and address what she described as his shock-like state. [ 31 ] According to Smid, RG appeared to understand what others were saying to him, though he continued to appear terrified. She recalled that Einarson entered the room at one point while she was there. She also reported that she was present when a hospital security guard entered the room and asked RG what had happened.

The following day, RG was moved to a different room in the hospital. [ 32 ] In cross-examination, Smid reported that she did not hear the call button from RG’s room prior to the alleged incident. Every patient has a call bell on the television remote control device or a soft touch disc within easy reach. Einarson reported that RG was not able to activate the call button effectively on a consistent basis, or use the controls to adjust his hospital bed. McVicar was not certain which type of call button was available in RG’s room, or whether it was working at the time of the alleged incident.

However, she was certain that the call button in the room was in working order prior to the date of the alleged incident. [ 33 ] The Accused spent a great deal of time at the hospital, frequently staying overnight in RG’s hospital room. She was intimately involved in RG’s care over an extended period of time and provided extensive instructions to the staff that they assumed came from RG. In particular, the Accused requested that RG not be disturbed during the night.

The hospital staff found her to be annoying and challenging at times as she consistently advocated for holistic, natural remedies for RG, at times telling hospital staff that her treatment plan was more effective than conventional medicine. [ 34 ] Einarson returned to RG’s room after the Accused was turned over to the security officers. He told RG that the Accused had been arrested and would not be allowed to come back. RG appeared to be relieved when provided with this information.

At some point during their various interactions, RG showed Einarson three scratches on his forehead. [ 35 ] After the Accused was escorted off the unit, Phan contacted RG’s parents and the on-call physician to let them know what had taken place. At some point, she returned to RG’s room to try and settle him and let him know that he was safe. [ 36 ] According to Einarson, he received information from Sonja Flores, one of the nursing staff going off shift when Einarson arrived on July 22, 2019. Einarson indicated that Flores had heard that the Accused was talking that day about having a baby with RG.

This was something that had been mentioned a few times in the past. As he started his shift, Einarson was concerned by what he had been told. While Einarson understood that Flores’ information had been passed on to McVicar by the nurse in charge from the earlier shift, McVicar denied that any concerns had been passed on to her by Flores directly. [ 37 ] Cst. Dylan Both, a member of the Calgary Police Service (“CPS”) attended the Rocky View Hospital on July 23, 2019. He arrived at RG’s room at 4:20 a.m. to speak to him about a possible sexual assault, after having briefly spoken to Chad Wegener. Cst.

Both was equipped with a body-worn video camera that he used to record his interactions with RG. He activated the camera very shortly after he entered the room. A transcript of his conversation was subsequently prepared, Exhibit V-D #7. A CD containing a copy of the 29-minute recorded interview was also entered into evidence, Exhibit V-D #6. In addition, Cst. Both obtained a written statement from RG, Exhibit V-D #8, that Cst. Both recorded in his own handwriting. [ 38 ] During the course of the statement, RG advised Cst. Both that the nurse call button near his hospital bed did not work. Cst.

Both observed RG activating the button multiple times, but no one ever responded. He also told Cst. Both that he scratched the Accused and pulled her hair during the alleged assault. Cst. Both did not observe any clumps of hair in the room or any patches of missing hair or any scratches on the Accused. He also did not recall seeing any injuries on RG. [ 39 ] Cst. Both found RG to be calm, though noted that he was shaking when he raised his arms at one point during the interaction. Cst. Both had no concerns regarding RG’s cognitive functions and no concerns regarding his consumption of drugs or alcohol.

RG appeared to understand the questions and provided answers that Cst. Both considered to be appropriate. [ 40 ] At the end of the formal part of the interview, Cst. Both located a phone underneath RG’s hospital bed. Cst. Both noted that the light on the phone was activated. RG identified the phone as belonging to the Accused. [ 41 ] With the agreement of the Defence, Dr. Sharon Szeto was qualified as an expert in general medicine, as well as the forensic examination, assessment and treatment of sexual assault victims. Dr.

Szeto gave evidence with respect to a physical examination that she conducted of RG between 5:00 p.m. and 7:25 p.m. on July 23, 2019, some 14 hours after the alleged incident. Dr. Szeto, currently practising medicine in Vancouver, was formerly a member of the Calgary Sexual Assault Response Team. She has previously given expert evidence in the Provincial Court of Alberta. Her written report documenting the examination can be found in Exhibit V-D #2, Tab 2. RG was unable to sign a consent form due to his physical weakness. [ 42 ] Dr.

Szeto testified that RG reported that the alleged sexual assault had taken place approximately 14 hours prior to the medical examination. According to Dr. Szeto, it is preferable to conduct such examinations as soon as practicable following the alleged incident due to the fact that injuries can heal and possible evidence can disappear if the subject cleans or washes themselves prior to the examination. [ 43 ] Dr. Szeto obtained RG’s consent prior to conducting the examination. She also obtained the consent of RG’s father.

RG appeared to understand the implications of agreeing to the examination and said that he wanted it to go ahead. Dr. Szeto had no concerns with RG’s cognitive capacity at any point during her interactions with him. She noted that he was in quite a lot of pain and required assistance to move his body during the course of the examination. She observed that RG had very little movement of his arms and legs. Before conducting the examination, she reviewed the medications that RG had received both prior and subsequent to the alleged incident.

She had no concerns as to the possible impact of any of these medications on RG’s cognitive functions. She testified that he was alert and oriented during the time they were together. Dr. Szeto noted that RG was emotional and quiet when relating the events giving rise to the examination. [ 44 ] Dr. Szeto observed and made note of three red-coloured abrasions in a triangular pattern on RG’s forehead. These abrasions were moist and Dr. Szeto described them as “recent”. She described abrasions as involving force to and area of the body combined with movement of that force.

She indicated that the injuries could be consistent with a fingernail and scratch movement or something like that. Given RG’s pain level at the time of the examination, she was unable to do a complete penile examination. Specifically, she was not able to retract RG’s foreskin to examine the entire glans of his penis, and was not able to do an anal examination.

However, she did not notice any injuries to the genital area or external anal area. [ 45 ] During the course of the examination, she obtained swabs for the purposes of DNA testing from the visible portion of the glans of RG’s penis; the shaft of his penis; his scrotum, his thighs; and a yellow discharge noted on the left side of his pubic hair.

She also used an ultraviolent light source to search for the possible presence of bodily fluids on RG’s body, specifically, saliva, mucus, plasma, sweat, as well as genital fluids, including semen, sperm, and vaginal discharge. [ 46 ] RG was interviewed again the following day, by Detective Steven Ashby of the CPS (“Det. Ashby”). Commencing at 10:10 a.m. on July 24, 2019, Det. Ashby obtained a further statement from RG that was both audio and video recorded. A copy of the recording, Exhibit V-D #9, and a transcript subsequently prepared, Exhibit V-D #10, were both entered into evidence during the voir dire . Det.

Ashby testified that RG seemed to be in pain at various points in time during the interview, and that he seemed to have difficulty maintaining his train of thought when responding to questions. At one point, RG told Det. Ashby that the Accused had never visited him in the hospital. Det. Ashby did not notice any scratches on RG’s forehead. [ 47 ] Jason Solinski, a forensic scientist with the Biology

Section of the RCMP National Forensic Laboratory in Edmonton, was called as a Defence witness and qualified as an expert in forensic DNA analysis, including the

interpretation of bodily fluid, identification of test results, the principles of DNA transfer, and the analysis,

interpretation and comparison of DNA profiles. [ 48 ] Mr. Solinski issued two reports, one dated October 30, 2019, Exhibit V-D #13, and a second report dated January 1, 2020, Exhibit V-D #15, relating to three swabs he received from the Calgary Police Service, as well as a known or reference DNA sample obtained from RG. In the first report, Mr. Solinski indicated that he examined a swab taken from the shaft of RG’s penis and determined that the DNA typing profile obtained from this swab matched the known sample obtained from RG. In the second report, Mr.

Solinski indicated that he examined a body stain swab obtained from RG, as well as a swab taken from the glans of RG’s penis. He found that the DNA typing profile obtained from both of these swabs matched the known sample obtained from RG. [ 49 ] Dr. Michele Burns was qualified as an expert witness and permitted to give opinion evidence as a medical doctor in the area of general internal medicine, including the prescription, effects and side-effects of medication. She had previously given expert evidence in court proceedings on two occasions. [ 50 ] Dr.

Burns was RG’s attending physician during the week of July 12, 2019. In conjunction with her care of RG, as well as in preparation for these court proceedings, Dr. Burns reviewed RG’s medical records relating to his hospitalization from May 27, 2019, until the date of his death on September 9, 2019. RG had been in the hospital for a period of seven weeks prior to Dr. Burns’ involvement and was already in palliative care. By the time Dr. Burns became involved, she believed that he had only days or weeks to live. At that point, neither surgery nor chemotherapy were medical options. [ 51 ] Dr.

Burns testified that RG’s diagnosis included metastatic bladder cancer that had spread to his lungs, and widespread venous thrombosis, or blood clots in all four limbs. The blood clots caused swelling, rendering it painful for RG to move. It is very common to

have blood clots in malignancy. She indicated that while RG denied pain, he could not sit, stand or move his limbs due to blood clots. In addition, RG had an inherited condition that caused him to have spastic paralysis of the lower extremities. He was also developing bed sores on his rump at the time. According to Dr. Burns, he was unable to care for himself in any way. [ 52 ] Dr. Burns described RG as medically frail, weak and in pain. She indicated that he was a stoic person who did not complain, but that he was in denial about his underlying cancer diagnosis.

She testified that in her opinion, RG had no ability to defend himself given his medical condition. As such, she described him as being “extraordinarily weak” and stated that “he couldn’t have pushed a kitten off his belly”. [ 53 ] Dr. Burns indicated that RG was always appropriate in their dealings, though he could be evasive at times. Dr. Burns was involved with Dr. Tang-Wai, the psychiatrist who conducted the Capacity Assessment Review (“CAR”) of RG on July 17, 2019. During the assessment, Dr. Burns noted that RG was awake and alert, but avoidant and in denial.

At one point, he reported that he was going to get better and be around for years. Overall, Dr. Burns reported that RG had some good days and some bad days and that his cognitive functioning fluctuated such that he was sometimes appropriate and sometimes not. [ 54 ] The CAR prepared by Dr. Tang-Wai, Exhibit V-D 5, Tab 4, contains the following information regarding RG’s mental state:

a) Ongoing concerns around cognition. Mr. RG has been observed to be confused and/or lacking understanding of his conditions while in hospital. Now requires decision maker for ongoing decisions (medical, financial, accommodation): page 2;

b) Mr. RG was aware the conversations were for capacity assessment around medical, housing and financial decisions. He understood the reasons for the assessment and agreed to proceed with the assessment. He did not require a person to assist during the capacity assessment: page 3;

c) Mr. RG was able to voice his own opinions and participate in the assessment. There was no evidence of undue anxiety affecting his ability to participate: page 3;

d) Mr. RG does not show insight into his medical issues at present. He understood he has blood clots as a reason for his hospitalization but did not understand that these were due to his untreated bladder cancer. He believed they were a result of “stress”. He also showed a lack of understanding around the natural progression of his untreated bladder cancer and prognosis (He believes he can “fight it off” and believes his prognosis will be measured over years which is not what the internal medicine team is indicating).

His inconsistencies around his insight into his medical issues are documented in previous progress notes from the various internal medicine attending physicians that have been involved in Mr. RG’s care. As per the occupational therapy (OT) note, Mr. RG shows a poor appreciation of his physical deficits and overestimates his ability to function which would place him at risk. There is evidence that he shows poor appreciation around his finances including his inability to access bank accounts, pins/passwords which place him at financial risk and vulnerability: p 5;

e) Mr. RG has shown an inability to consistently retain information relevant to making treatment and housing decisions as well as finances: p 5;

f) He is aware that his decision making has been under assessment and he is aware that he has lacked ability to make treatment decisions throughout this admission. He has not demonstrated serious emotional difficulties when discussing those periods when he lacked capacity: p 6. [ 55 ] Dr. Tang-Wai signed the CAR indicating that RG lacked capacity regarding his health care, accommodation, and financial matters. He also noted that RG was “frequently disoriented, mainly at night”. Medication [ 56 ] RG was prescribed the following medication on July 23, 2019:

a) Hydromorphone – 0.7 mg/hr (via infusion); b) 1 mg hydromorphone, as required for breakthrough pain;

c) Zopiclone – 2.75 mgs. – very mild sleeping pill (prescribed at the lowest possible dose);

d) Tylenol;

e) Nicotine patch;

f) Nortriptyline – 10 mg, a very low dose for nerve related pain;

g) Ondansetron -4 mg as requested for nausea;

h) Maceran (Metoclopramide);

i) Morphine – 7.5 mg;

j) Belladone, 15 mg suppository. [ 57 ] According to his medical records, Exhibit V-D #5, RG declined extra hydromorphone at 5:00 p.m. on July 22, 2019, but did receive a dose of nortryptyline at that time. He received a further 10 mg of nortriptyline at 5 p.m. on July 23, 2019.

[ 58 ] Dr. Burns testified that RG received 3.75 mg of zopiclone at 6:41 a.m. on July 23, 2019. She testified that this is a very mild sleeping medication and that this dose could fairly be described as a homeopathic dose. She explained that the side effects can involve falls, confusion, day-time sleepiness, and difficulty driving. [ 59 ] Nurse Phan did not have any medication to give to RG during her shift on July 22-23, 2019. She did not provide him with any medication after the alleged incident. Phan never had a discussion with RG about reducing his medication. [ 60 ] On June 25, 2019, the Accused met with Dr.

Kathryn Watson and Dr. Black. In RG’s medical records, Exhibit V-D #5, Tab 2, p 2, Dr. Watson recorded the following with respect to her conversation with the Accused on that date: Myself and Dr. Black, palliative, met with (SAB) to update her on his medical issues at present...(SAB) verbalized that she wants RG to be comfortable no matter what. She was very tangential again, off-track, and disorganized at times.

She was, however, able to explain that his present state means that “he will pass soon” but then went on to say that, “with love and caring, he will heal, he always has, and he’s strong.” She also asked about the possibility of “harvesting (RG’

s) sperm once he has passed”, as she has “spoken for years with him about them someday having children.” She requested that this be an option for her and how we could make this happen. Both Dr. Black and myself clearly explained that this was not an option and would not occur. Issues [ 61 ] The following issues are to be addressed on this voir dire :

a) The admissibility of the statements of RG to hospital personnel as spontaneous utterances or under the principled exception to the hearsay rule;

b) The admissibility of the audio-video recorded statements of RG to Cst. Both as spontaneous utterances or under the principled exception to the hearsay rule;

c) The admissibility of statements made by RG to Dr. Szeto during the sexual assault examination on July 23, 2019, under the principled exception to the hearsay rule;

d) If otherwise admissible in law, should some or all of the statements be excluded from evidence on the basis that their prejudicial effect outweighs their probative value. Position of the Parties [ 62 ] According to the Crown, RG’s statements to Einarson, McVicar and Phan after they opening the door to RG’s hospital room were all spontaneous statements falling within the res gestae exception to the hearsay rule. The Crown maintains that these statements were made in close proximity to a shocking event and before the speaker had an opportunity for fabrication.

As such, the Crown says that that these statements meet the requirements of the spontaneous utterances exception to the hearsay rule. Alternatively, the Crown says that these statements should be admitted under the principled exception to the hearsay rule. [ 63 ] The Crown also says that the words and noises heard by the various hospital personnel prior to opening the door to RG’s room are also admissible in evidence as spontaneous utterances, as part of the narrative, or as showing RG’s state of mind at the time.

These words and noises are not, however, sought to be admitted for the truth of their content given the nature of the evidence. [ 64 ] Further, the Crown seeks the admission of RG’s statement to Nurse Smid and Cst. Both as spontaneous utterances. The Crown says that the shocking nature of the event continued to adversely impact RG, a state that continued until the Accused was removed from the hospital floor. Finally, the Crown seeks the admission of RG’s statements to Dr.

Szeto on July 23, 2019, under the principled exception to the hearsay rule. [ 65 ] The Defence concedes the presumptive admissibility of RG’s initial statements to the four nurses as spontaneous utterances. However, the Defence says that this is one of those rare cases recognized by Iacobucci J in R v Starr , 2000 SCC 40 , where evidence otherwise admissible under one of the valid hearsay exceptions fails to meet the necessity and reliability requirements in the particular circumstances of the case.

As more fully set out below, the Accused says that all of the statements purportedly made by RG to hospital personnel and police or security officers are unreliable and should not be admitted in evidence. [ 66 ] The Defence also disputes the admissibility of RG’s statements to Cst Both, Dr. Szeto and Detective Ashby. As such, she maintains that the statement to Cst. Both is not admissible either as a spontaneous utterance or under the principled exception. Likewise, the statements to Dr.

Szeto and Detective Ashby fail to meet the reliability requirement of the principled exception. [ 67 ] Further, the Defence maintains that even if admissible as spontaneous utterance or under the principled exception to the hearsay rule, certain portions of the various statements attributed to RG should be excluded from evidence on the basis that the prejudicial effect of some portions of these statements outweighs its probative value. Analysis [ 68 ] This voir dire is principally concerned with the circumstances in which hearsay evidence may be received in a criminal trial.

[69] The definition of hearsay evidence, as well as the circumstances in which such evidence is admissible in evidence, isdiscussed in some detail in the Supreme Court’s decision in Starr. At para 153, the Court explained: The law of hearsay in Canada and throughout the common law world has long been governed by a strict exclusionary rule relaxed by acomplex array of exceptions. Recently, as noted in Smith, supra, at p. 932, this Court has moved in a new direction by adopting aprincipled approach to hearsay “governed by the principles which underlie the rule and its exceptions alike”.

According to this approach,evidence may be admissible, notwithstanding the inapplicability of the categorical exceptions on the facts of the case, provided thecriteria of necessity and reliability set out in Khan are met. [70] The Court went on to consider various explanations of the hearsay rule before concluding (at para 162): These articulations of the hearsay rule make clear that hearsay evidence is defined not by the nature of the evidence per se, but by the useto which the evidence is sought to be put: namely, to prove that what is asserted is true.

When the out-of-court statement is offered for itstruth, the inability to cross-examine or “test” the source of the evidence in court under oath or solemn affirmation as to the truth of theassertion undermines its reliability...In short, the essential defining feature of hearsay are the purpose for which the evidence is adduced,and the absence of a meaningful opportunity to cross-examine the declarant in court under oath or solemn affirmation as to the truth of itscontents. (emphasis in original) [71] In Starr, the Supreme Court, upholding the majority decision of the Manitoba Court of Appeal, found that the profferedstatements did not meet the requirements of any of the historic exceptions to the hearsay rule and also did not fulfill the requirements ofthe principled approach.

In examining the interaction between the principled approach and recognized exceptions, the Court concludedthat “the principled approach must prevail” in the event of a conflict between the two. As such, it found that “[T]he governing principlesfor hearsay admissibility must be reliability and necessity”: at para 155.

The traditional hearsay exceptions are to be interpreted in afashion that is consistent with the principled exception requirements of necessity and reliability: at para 213. [72] At the same time, the Court acknowledged that “the existing exceptions are a long-standing and important aspect of our law ofevidence”, and that courts should be cautious in reforming these exceptions: at para 211. In this regard, the Court noted that “in the clearmajority of cases, the presence or absence of a traditional exception will be determinative of admissibility”: at para 211.

Spontaneous Utterances (Res Gestae) [73] Evidence that falls within one of the traditional hearsay exceptions is presumptively admissible as importing an inherentreliability component, or as affording circumstantial guarantees of reliability: Starr, at para 212. A party that seeks to challenge theadmissibility of hearsay evidence that is otherwise presumptively admissible bears the onus of establishing that the evidence should beexcluded on the basis of issues pertaining to either necessity or reliability.

The exclusion of otherwise admissible hearsay evidence onthis basis will be rare: at para 214. [74] The Alberta Court of Appeal in R v Sylvain, 2014 ABCA 153, and R v D. (D.L.), 2014 ABCA 218, explained the spontaneousutterance (res gestae) exception to the hearsay rule.

In Sylvain, the Court noted (at para 30) that “[A] statement relating to a startlingevent or condition may be admitted to provide the truth of its contents if it is made while the declarant is under the stress o[r] excitementcaused by the event o[r] condition.” In D. (D.L.), the Court held that res gestae statements include excited utterances, statements ofpresent physical condition, statements of present mental state and statements of present sense impression: at para 15. [75] In D. (D.L.), a sexual assault case involving text messages sent by a complainant to a friend, the Court of Appeal adopted (atpara 16) the criteria set out by the Ontario Court of Appeal in R v Nicholas (2004), (ON CA), 182 CCC (3d) 393(Ont CA), at para 88, quoting from their earlier decision in R v Khan, (ON CA), 42 CCC (3d) 197, at p 207: [A] spontaneous utterance made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion maybe admissible as an exception to the hearsay rule.

The stress or pressure of the act or event must be such that the possibility of concoctionof deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress orpressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility ofsuch statements is dependent on the possibility of concoction or fabrication.

Where the spontaneity of the statement is clear and thedanger of fabrication is remote, the evidence should be received. [76] The timing and spontaneity of statements claimed to fall within the spontaneous utterance exception to the hearsay rule arecentral issues to be determined in this case. As such, the court may consider the tone of voice, as well as the declarant’s emotional state,what she/he actually said, and the circumstances in which the statements were made, in determining whether the statements werespontaneous in nature.

Consideration may also be given to the overall context in which the statements were made. In Sylvain, the Courtnoted that “[E]vidence existing independent of the declaration can assist in establishing the existence of the shocking event and thereforethe spontaneity of the statement”: at para 14.

The Court of Appeal also found that “[A]ll of these facts and circumstances go on the scalein assessing the existence of the shocking event and spontaneity of the 911 call”: at para 38. [77] A number of the cases relied upon by the Crown deal with the contemporaneity requirement of the spontaneous utteranceexception, including R v Dakin, [1955] O.J. No. 944 (Ont.

CA); R v MacKenzie, 2011 ONSC 6770, Sylvain, supra, and R v Brown,2015 ONSC 4121. [78] In Dakin, the Ontario Court of Appeal upheld the trial judge’s ruling that found five statements made by the deceased overthe course of an hour were admissible as spontaneous utterances. In that instance, Dakin poured a jar of gasoline on his ex-girlfriend andher daughter while there were asleep in the ex-girlfriend’s bed. He then set the gasoline on fire. The ex-girlfriend and her daughtersuffered severe burns and both ultimately died in hospital.

The last of the five statements of the ex-girlfriend was critical to the Crown’scase and was made to a nurse in the hospital emergency room an hour after the fire. The trial judge held that there was “little todistinguish the existing circumstances in the hospital emergency room from the circumstances that existed throughout the hour since thehorrible event, other than time”: at para 18.

[ 79 ] The Court of Appeal upheld the trial judge’s reasoning in this regard, noting (at para 21): ...in the present case, the trial judge specifically adverted to the time interval between the fire and the hospital utterances and concluded that the intervening events did not “change the severity of the pain nor the circumstances that existed since the traumatic event, [a]nd that created the unlikelihood of time for reflection to the extent of being able to form or create a fabrication of the event or its cause”.

He reviewed the terrible burns suffered by Julie and her physical and emotional conditions during the one-hour period that followed the fire and the consistent thread in all of the statements that “follow[ed] Julie from the fire scene, to downstairs, to the ambulance, to the emergency room...” During that period, he noted, “there were no changes in circumstances other than the elimination of the fire on her clothes and skin and the application of sterile water to relieve the pain. She remained severely burned and without clothes”.

He found the requisite standard of trustworthiness in Julie’s statements in the emergency room and ruled them admissible in evidence. [ 80 ] In Mackenzie , the accused was charged with aggravated assault, unlawful confinement and uttering death threats. In that instance, the complainant managed to escape the accused’s apartment without her clothes and other belongings following a period of confinement. She ran to her own apartment a short distance way and told her 15-year-old daughter that she had been strangled by the accused, could not breathe, and had been unable to escape for some period of time.

The trial judge found the testimony of the complainant’s daughter as to what her mother had told her upon returning to their apartment to be admissible for the truth of its content, finding (at para 11): In the case at bar, the statement explains the relevant acts that are alleged, namely, the assault and confinement and the fact that Ms. Ethier is wearing no clothes outside her apartment and that it is a spontaneous exclamation made within minutes of Ms. Ethier’s departure from Mr. Mackenzie’s apartment.

The statement is reliable because it was a spontaneous utterance made under “the immediate and uncontrolled domination of the senses”, as Laskin JA described in R v P (M) , supra .

As Madam Justice Charron stated in the first appeal in R v Edgar , supra: “The passage of time, or for that matter, the fact that there may have been a rational explanation for the statements, were simply matters going to the weight of the evidence, not its admissibility” (see paragraph 17 of Sharpe JA’s decision on the second appeal). [ 81 ] In Brown , Fairburn J (as she then was) found that a 911 call following a robbery was evidence falling within the res gestae exception to the hearsay rule. At para 38, she held: First, I find that Mr.

Singh’s voice, captured on the 911 tape, that I have had the opportunity to listen to, is clearly one of a man who is still suffering from the shock of what just happened to him. While he was able to communicate, he was clearly concerned and anxious on the phone. In short, his tone of voice sounds like someone who has just been robbed.... [ 82 ] Counsel have also referred to the decision of the Ontario Court of Appeal in R v Nurse , 2019 ONCA 260 , a case involving the admission of a pointing gesture by the victim of a very serious assault.

The declarant, who could not speak, and was having difficulty breathing, was asked by an attending police officer “who did this?” The victim pointed first to his abdominal injury and then to Nurse. Nurse had previously told police that he knew the victim and had just seem him being dumped out of a vehicle. After the victim pointed to him, Nurse then told the attending police officers that he had seen a black man with dreadlocks stab the victim. One of the police witnesses testified that Nurse changed stories as to what had happened only after the victim pointed at him.

The other police officer recalled that Nurse had provided both of his comments to the police before the victim pointed to his injury and then directly at Nurse. The victim died as a result of his injuries very shortly after this exchange with the police officer. [ 83 ] The victim’s pointing gestures were admitted at trial on the basis that they were both a dying declaration and a res gestae statement.

The trial judge rejected the defence contention that the situation involved one of those rare cases where evidence that was admissible under a recognized exception should nonetheless be declared inadmissible as failing to meet the requirements of necessity and/or reliability. In dismissing the appeal, Trotter JA determined that the victim’s pointing actions amounted to non-verbal assertive conduct. He went on to find that the conduct of the declarant “fell squarely within this [hearsay] exception”: at para 83.

a) Were RG’s statements to hospital personnel spontaneous utterances admissible in evidence as res gestae, a traditional exception to the hearsay rule? [ 84 ] The Crown seeks admission of statements made by RG to hospital staff, including the four nurses on duty at the time – Kevin Einarson; Nhu Phan, Caitlin McVicar, and Madison Smid. The Crown also seeks the admission of RG’s statement to Officer Wegener and Cst. Both as spontaneous utterances.

According to the Crown, relying on the Court of Appeal’s decision in Sylvain , all of these statements are admissible as res gestae in that they were spontaneous utterances relating to a startling event and made at a time when the complainant was under the excitement or stress caused by the precipitating event. [ 85 ] Einarson, McVicar and Phan all heard the same statements, though they have slightly different recollections as to what was actually said. According to the Crown, these statements were made in close proximity to a shocking event and before the speaker had an opportunity for fabrication.

As such, the Crown says that all of these statements meet the requirements to be admitted under the res gestae exception to the hearsay rule. The Crown says that the shocking nature of the event continued to adversely impact RG, a state that continued until the Accused was removed from the hospital floor.

The Crown maintains that RG’s high state of agitation was based on his expressed fear that the Accused would return to his hospital room. [ 86 ] The Defence advances a number of different arguments challenging the admissibility of all of the various statements made by the complainant. [ 87 ] First, the Defence says that the statements heard by the nurses prior to opening the door to room 9309 are admissible in evidence as part of the factual narrative leading up to RG’s allegation of sexual assault, but not admissible for the truth of their content as spontaneous utterances. [ 88 ] Second, the Defence concedes that the initial statements made by RG after the nurses entered the room meet the established criteria as spontaneous utterances, though, as outlined above, maintains that the statements should be excluded on account of their

unreliability. [ 89 ] Third, the Defence says that RG’s statement requesting that the police be called; that the Accused not be allowed to go in his home; and that she had keys to the house, were not spontaneous utterances in that these statements had nothing to do with an allegation of sexual assault. Rather, the Defence urges that the latter two statements are related to a motive to make a false allegation against the Accused.

Further, the Defence points to the fact that these statements, as well as those that followed, were not made in the presence of the Accused. [ 90 ] Fourth, the Defence says that the statements subsequently made by RG to Nurse Smid and Officer Wegener were not spontaneous utterances, but rather the repetition of statements already made to others and, as such, inadmissible as prior consistent statements.

To the extent that the statements made to Nurse Smid included new detail, the Defence says that this is classic hearsay elicited through questions posed to the declarant and, moreover, they are lacking in procedural reliability. [ 91 ] Finally, the Defence takes the position that the statement “it’s not too late, we need to make a baby and we will name him Morris”, or words to that effect, should be found to be inadmissible. First, the Defence says that this statement attributed to the Accused was related by RG to Nurse Smid after the Accused had left the room. As such, the evidence is pure hearsay.

The Defence also urges the Court to exclude this statement on the basis that it does not form part of the narrative, is capable of creating a false impression, and is prejudicial to the Accused’s fair trial interests. [ 92 ] Given the number of statements that are to be assessed for admissibility as spontaneous utterances, or under the principled exception, I propose to discuss each of these statements in chronological order. (

i) Noises and Words Heard by Hospital Personnel Coming from Room 9309 [ 93 ] This category includes the various sounds or noises, as well as the discernable words, heard by the various hospital personnel emanating from RG’s hospital room. In this category is the male voice moaning and grunting, the words “oh yeah” and “you are fucking amazing”, as well as the sound of RG’s voice yelling out in distress.

It also includes the words “you fucking cunt”. [ 94 ] I agree with the Defence that these noises, sounds and statements heard by the various medical personnel while they were outside of Room 9309, are admissible in evidence as part of the narrative. While the Crown seeks their admission into evidence, I do not interpret the Crown’s request in this regard as extending to a finding that these statements were somehow spontaneous utterances to be admitted for the truth of their content.

What is significant about these noises and statements is the fact that they were uttered and that they may assist the trier of fact in determining the declarant’s state of mind at the time. They may also provide context for what transpired after the hospital personnel opened the door and entered RG’s hospital room. (ii) “She Raped Me”; “She fucking raped me”; “Don’t believe anything she says” [ 95 ] The witnesses Einarson, McVicar and Phan all gave slightly different versions of the words uttered by RG after they opening the door and entering the hospital room.

I am satisfied that these statements made by RG, and as heard by the various medical personnel once the door to room 9309 was opened, meet the essential requirements of the spontaneous utterance exception to the hearsay rule.

The Defence concedes the presumptive admissibility of these statements, but goes on to suggest that the Defence may displace this presumption by establishing on a balance of probabilities the unreliability of the evidence. (iii) “Call the Police”; “Don’t let her in my home”; “She’s got keys to my house” [ 96 ] After RG stated repeatedly that “she raped me” or “she fucking raped me”, both Einarson and Phan heard him tell them to call the police and that “she’s got keys to my house”.

Later, after the Accused entered the room from the adjoining bathroom, RG again yelled out his request for the police to be called and that the Accused was not to be allowed in his house. [ 97 ] The Accused disputes the admissibility of these particular statements as constituting part of a spontaneous utterance. Rather, the Accused suggests that RG’s reference to the Accused having keys to his house, and his assertions that she should not be allowed in his house, had nothing to do with his complaint of sexual assault.

The Accused contends that the statements relate to RG’s motive to make a false allegation against her. [ 98 ] In my view, there is no merit to the Defence assertions in this regard. According to the witnesses, these statements followed immediately upon RG’s repeated accusations that he had been raped by the Accused. As such, there was no break in time between the two sets of statements. Throughout, RG remained in a highly distraught and agitated state.

Further, RG’s urgings that the police be called, a statement repeated on several occasions, is directly related to his earlier exclamations complaining of sexual assault. I am satisfied that all of these statements were clearly spontaneous and uttered at a time very shortly after the alleged traumatic event before the declarant had any opportunity for reflection so as to allow for fabrication. [ 99 ] The meaning to be attributed to these statements, as well as the weight to be accorded them, either individually or collectively, are properly matters for the determination of the trier of fact.

Under the circumstances, I am not prepared to accede to the Defence request that I, in essence, edit the content of statements that otherwise satisfy the requirements as spontaneous utterances. As previously indicated, this is a matter going to the weight to be attributed to this evidence, not its admissibility. (iv) “He’s confused, Don’t Listen to him”; “Baby Morris needs to be born”. You need to live on. This is the way you can live on after you die [ 100 ] Einarson and Phan testified that the Accused emerged from an adjoining bathroom very shortly after they entered RG’s room.

They both related that the Accused responded to RG’s repetition of his accusation when she emerged from the bathroom with the words “Don’t listen to him, he’s confused”. Einarson also heard the Accused tell RG “Baby Morris needs to be born”. While he does not recall

the exact words that followed, Einarson testified that the Accused suggested to RG that this was the way that he could live on. Shortlythereafter, Einarson escorted the Accused out of the room. [101] I am satisfied that the two statements – “He’s confused. Don’t Listen to him”; and “Baby Morris needs to be born” – were bothmade by the Accused after she entered the main hospital room from the private bathroom. I am also satisfied that she told RG at thesame time that this was the way that he could live on.

The first statement was made to the attending nurses, and was heard by bothEinarson and Phan, while the second statement was made directly to RG, but in the presence of, and overheard by, Einarson. TheDefence concedes that these were not statements made to a person in authority and, as such, are not subject to the voluntarinessrequirement.

In my view, both statements are admissible in evidence under the traditional exception to the hearsay rule relating toadmissions made by an opposing party litigant: R v S.G.T., 2010 SCC 20 , [2010] 1 SCR 688, at para 20. (v) “I woke up from a nap and she was on top of me...” [102] Nurse Smid entered RG’s hospital room after the Accused had been escorted out of the room. On the evidence before me, I amsatisfied that she was initially alone in the room, but was subsequently joined by Officer Wegener.

According to Wegener, he enteredRG’s hospital room shortly after arriving on the hospital unit at 3:30 a.m., less than thirty minutes after the hospital personnel reportedhearing noises coming from Room 9309. [103] According to Smid, RG called out “she fucking raped me, she fucking raped me” as Smid entered the room. He repeated thisstatement over and over again. After Smid asked him what had happened, RG reported “I woke up from a nap and she was on top of me”.He then told Smid that the Accused had told him “It’s not too late. We need to make a baby. We will name him Morris”.

RG went on totell Smid that he obviously could not get hard, but that the Accused had tried to put him in her. RG then told Smid that he did not want tobe left alone in the room and repeatedly asked Smid not to leave. She noted that he was shaking uncontrollably and that she had neverseen him in such a distraught state. He became tearful and more withdrawn after telling Smid what had happened, but continued toexpress concern that the Accused might be permitted to come back to his room. [104] RG then asked Smid if the Accused would be allowed back in his hospital room or permitted to go to his house.

He also statedto Smid: “how could the love of my life do this to me? How will I ever be able to get over this?” [105] The Defence challenges the admissibility of RG’s statements to Smid as spontaneous utterances on a number of grounds. First,it is suggested that RG is merely repeating his allegation of sexual assault made previously in the presence of the Accused and othermedical personnel.

Second, the Accused challenges as inadmissible hearsay RG’s repetition to Smid of the statements previously madeby the Accused regarding Baby Morris. [106] I accept the Defence contention that RG’s statements to Smid do repeat his previous core allegation that he had been sexuallyassaulted by the Accused. However, I am satisfied that the statements made to Smid included significant additional detail as regards thecircumstances of the alleged sexual assault that were not present in the earlier statements to other nurses.

In my view, this is not a casewhere the Crown seeks to introduce a number of different spontaneous utterances that contain the same information. [107] This situation was addressed by the Ontario Court of Appeal in R v Mohamad, 2018 ONCA 966. In that instance, the Courtconsidered an application by the Crown to admit a KGB statement, as well as the preliminary inquiry testimony, of a recanting Crownwitness.

At trial, the trial judge found that the Crown had satisfied the necessity and reliability conditions of the principled exception andadmitted both the statement and the preliminary inquiry evidence. [108] On appeal, Watt JA considered a number of issues, including the fact that the KGB statement and the witnesses’ preliminaryinquiry evidence were largely duplicative. At para 77, he held: The appellant says that, for all practical purposes, the B.(K.G.) statement and the preliminary inquiry evidence were duplicates.

Thatthey were so is relevant to the necessity requirement of the principled exception to the hearsay rule. Prior decisions of this Court haveheld that such cumulative hearsay should not be received. There is no necessity for further statements that simply repeat the substance ofa prior statement. In this case, both versions were lengthy, detailed, and as a result prejudicial to the appellant.

This prejudice wasenhanced by Crown counsel’s reference to the substance of the hearsay evidence in his closing address. [109] However, the Court went on to find no error on the part of the trial judge in admitting both pieces of evidence, noting (at para123) that “when the various precedents are tolled, it is difficult to tease out any bright line rule that enjoins all cumulative hearsay.” [110] I am satisfied that RG’s statements to Smid do not “simply repeat the substance of a prior statement”.

While there is, aspreviously noted, repetition of the core allegation, the statements to Smid contain important details related by RG for the first time.Given the close proximity in time between the alleged assault and the statements to Smid, as well as RG’s continued high level of anxietyand distress as a result of the event, I find that these statements are properly characterized as spontaneous utterances. [111] Such a conclusion is, in my view, consistent with the decision of the Ontario Court of Appeal in R v Dakin, (ON CA), [1995] O.J.

No. 944 (Ont CA), a case in which various statements made to numerous individuals were all admitted as resgestae. In that instance, somewhat similar to the within matter, the declarant made a series of statements to residents of the home whereshe resided, as well as to a firefighter, a peace officer, an ambulance attendant and, finally, in the presence of a hospital emergency roomnurse, after sustaining burns caused by the accused dousing her with gasoline and then setting the gasoline on fire. The declarant died ofinjuries sustained in the process a short time after the event.

The various res gestae statements admitted into evidence by the trial judgespanned a period of approximately one hour. As in the within matter, the declarant did not give evidence at trial. [112] In upholding the trial judge’s decision to admit all of these various statements as res gestae, the Court held that all of thestatements, and the surrounding circumstances in which they were made, “attained the requisite standard of trustworthiness as, a fortiori,did the utterances that preceded them”: at para 22.

The Court of Appeal noted the trial judge’s conclusion that there was “little todistinguish the existing circumstances in the hospital emergency room from the circumstances that existed throughout the hour since the

horrible event, other than time”: at para 18. The trial judge also noted that “the trustworthiness of Julie’s statement was a great as that ofthe statements that preceded them…”: at para 22. [113] In my view, the reasoning in Dakin is equally applicable in this instance. In both cases the statements were made over arelatively brief period of time. In the within matter, the declarant remained in his hospital bed throughout while he was attended to byvarious hospital personnel. I am satisfied that RG’s emotional state remained in the same highly agitated state throughout this period oftime.

Indeed, the evidence strongly suggests that it was only possible to calm him down once he was assured that the Accused had beenremoved from the hospital floor where his room was located. [114] Second, the Defence challenges the hearsay nature of RG’s repetition of the Accused’s statement regarding Baby Morris. I note,however, that Einarson also gave evidence regarding this statement made by the Accused. As previously discussed, this evidence isadmissible through Einarson as an exception to the hearsay rule relating to admissions made by an opposing party litigant.

In The Law of Evidence, 8th Ed., Paciocco JA notes at p 192, that Wigmore was of the view that admissions did not constitute hearsay, though theauthors go on to state that the Supreme Court in R v Evans, (SCC), [1993] 3 SCR 653, and R v Couture, 2007 SCC 28, [2007] 2 SCR 517, recognized that an admission is an exception to the hearsay rule. [115] The Accused cites no authority for the proposition that a spontaneous utterance cannot contain a declarant’s inclusion of wordsspoken by others, notably the alleged perpetrator.

In this instance, I am satisfied that RG’s reference to the words spoken by the Accusedform an integral part of his spontaneous utterance to Smid. As such, I find that the Accused’s statement is admissible as an exception tothe hearsay rule. In this particular case, there is the added benefit that the same statement was also heard by Einarson, a witness availablefor full cross-examination on the circumstances in which the Accused’s admission was made.

As more fully set out below, I also findthat RG’s seemingly accurate recollection of the words of the Accused – an account confirmed by Einarson - is evidence that will assistthe trier of fact in assessing the ultimate reliability of RG’s statements, generally. [116] Third, the Accused challenges the statements made to Smid (and also Wegener) on the basis that the statements were precededby a question posed by each individual.

In R v Andrews, [1987] A.C. 281 (H.L.), the House of Lords held (at p. 301) that “[T]he fact thatthe statement was made in answer to a question is but one factor to consider under this heading.” [117] In this instance, the questions posed by both Smid and Wegener were limited to a single inquiry of RG as to what had happened.On the record before me, Smid and Wegener posed a single, open-ended question that in no way suggested a specific answer by RG. Inother words, I am satisfied that neither Smid nor Wagener posed leading questions that may have had the unintended effect of steeringRG to a particular answer.

In my view, this scenario is comparable to the one under consideration in Nurse, where an attending policeofficer asked the victim, “who did this?” Under the circumstances, I am satisfied that the fact that RG’s statements to both Smid andWegener were preceded by a question does not undermine the spontaneous nature of RG’s utterances that followed. [118] Finally, the Defence appears to challenge the admissibility of some of the otherwise admissible spontaneous utterances on thebasis that they were not made in the presence of the Accused.

The Defence offers no authority for the suggestion that spontaneousutterances are only admissible if made in the presence of the accused. In my view, the fact that some or all of these statements made byRG were made in the absence of the Accused in no way affects their admissibility if the statements otherwise meet the requirements ofthis hearsay exception. (vi) “I was telling her to get off and screaming for help. Trying to get me to penetrate her”. [119] According to Wegener, RG related “I was telling her to get off and screaming for help.

Trying to get me to penetrate her”, whenhe entered RG’s room less than 30 minutes after the incident took place. [120] The Accused challenges the repetitive nature of this statement on the basis that it simply repeats what RG had previouslyreported to the four nurses, particularly Nurse Smid. In this regard, the Defence points to the decision of the Ontario Court of Appeal inMohamad. The Crown concedes that the statements reported by Smid and Wegener overlap given that they are both reporting onutterances of RG apparently made at more or less the same time.

As such, the Crown does not oppose the exclusion of the utterancesreported by Wegener. In light of the Crown’s position, it is unnecessary for me to determine whether the statement to Wegener was aspontaneous utterance or admissible in evidence by virtue of the principled exception. [121] For the foregoing reasons, I am satisfied that RG’s statements to nurses Einarson, McVicar, Phan and Smid, as well as hisstatement to Cst. Both, were all spontaneous utterances presumptively admissible as res gestae exceptions to the hearsay rule.

Thestatements made to the nursing staff, initially Einarson, McVicar and Phan, but shortly thereafter to Smid, had a temporal connection tothe alleged sexual assault. The statements to Einarson, McVicar and Phan were made immediately following the termination of theincident. The statements to Smid followed within a few minutes thereafter. I am satisfied that all of the statements were made close intime to the alleged incident and before RG had an opportunity to fabricate. [122] Throughout, RG was immobile and, as described by Dr. Burns, “helpless”.

There was no change in his physical circumstancesthat removed him from the very location where the alleged the assault had taken place. As such, the constant physical circumstances hadthe effect of sustaining his focus on what had taken place earlier in the exact same location.

Furthermore, all of the hospital personnelmade similar observations relative to his great agitation and a highly emotional state that persisted until he received assurances fromOfficer Wegener that the Accused had been removed from the floor. [123] As in Dakin, which involved a period of one hour, here we are dealing with a period of approximately 45 minutes from the timethe nurses first entered the room until Cst. Both concluded his statement. There were no intervening events after the Accused’s departurefrom the room and the periodic arrival of other hospital personnel.

He was never left alone so as to afford him any time to ruminate onwhat had transpired, or to allow him an opportunity to create a fabrication. There was a constant thread in all of the statements, thoughsome additional details were added in his later dealings with Nurse Smid and Cst. Both. I also note that none of the questions posed byhospital personnel were leading in nature.

[124] For all of the foregoing reasons, as well as the evidence before me regarding RG’s tone of voice, his manner of speaking, andthe content of the statements made, I find that all of the statements are admissible as spontaneous utterances, a traditional exception tothe hearsay rule. [125] I propose to now consider the Crown’s contention that the statement to Cst. Both and Dr. Szeto are admissible under theprincipled exception to the hearsay rule.

In considering the burden resting on the Crown to prove the necessity and reliabilityrequirements of the principled exception, I will also consider whether or not the Defence has established on a balance of probabilities thatRG’s earlier statements ought to be excluded from evidence on the basis that they are unreliable.

b) Do RG’s statements to Cst. Both and Dr. Szeto meet the threshold requirements of necessity andreliability to warrant admission under the principled exception to the hearsay rule? [126] The Crown seeks the admission of RG’s statement to Cst. Both as well as his subsequent statement to Dr. Szebo, on the basisthat they meet the necessity and reliability requirements of the principled exception. The Crown concedes that the statements to Cst.Both and Det.

Ashby were not spontaneous utterances and, as such, do not meet the criteria for res gestae. [127] In this instance, the Defence concedes that the necessity requirement of the principled exception is met by virtue of the fact thatRG passed away on September 9, 2019, and is, accordingly, unavailable to give evidence directly. As such, the Accused’s challenge tothis evidence falls to be determined on the basis of the reliability requirement. I note that the Accused does not challenge the spontaneousutterance exception on a categorical basis.

Rather, he maintains that this is one of those rare cases where presumptively admissiblespontaneous utterances fail to meet the reliability requirement associated with the principled exception. [128] I am satisfied that the Accused may challenge the reliability of this otherwise admissible evidence if she is able to establish thatthis is one of those rare cases where the evidence should not be admitted. Otherwise, as in the case of Starr, a hearsay exception may bechallenged, and modified if appropriate, to ensure that it is supported by the marks of both necessity and reliability.

In this instance, theAccused does not seek to set aside or change the spontaneous utterances exception. As such, the Accused is not opting for one of theremedies pursued in R v Mapara, 2005 SCC 23 , [2005] 1 SCR 358. [129] The Crown concedes that if the Court determines that RG’s statement to Cst. Both meets the requirements of the principledexception, then that statement to Dr. Szeto would no longer meet the necessity criteria and would, as such, be inadmissible.

I agree. [130] I am not persuaded that the Accused has established that this is one of those “rare cases” where this otherwise admissibleevidence fails to meet the reliability requirement. For the reasons that follow, I also find that the Crown has established that RG’sstatements to both Cst. Both and Dr. Szeto are properly admitted in evidence under the principled exception to the hearsay rule. I amsatisfied that any issues with the reliability of RG’s utterances are matters best left to be determined by the trier of fact in theirdetermination of the ultimate reliability of this evidence.

I am not convinced that any of the suggested deficiencies in this evidence, eitheralone or taken together, are sufficient to justify a decision to withhold this evidence from the jury. The Principled Exception to the Hearsay Rule [131] In R v Youvarajah, 2013 SCC 41, Karakatsanis J traced the history of the law’s treatment of out-of-court statements and theiradmissibility for the truth of their content.

At para 20-21, she described the evolution of the principled exception to the hearsay rule inthe following terms: Over time, however, the law recognized that in certain circumstances, it may be safe to rely on out-of-court statements for the truth oftheir contents. Exceptions to the hearsay rule developed for statements carrying certain guarantees of inherent trustworthiness, oftenbecause of the circumstances in which they were made (for example, dying declarations and declaration that are adverse in interest.

In addition to the traditional exceptions, this Court developed a principled approach that permits trial judges to admit hearsay evidence ifit meets the twin threshold requirements of necessity and reliability. This is a flexible, case-by-case examination. See especially R. v.Khan, (SCC), [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 2013 SCC 41 (CanlLII) 915; K.G.B.; R. v. U. (F.J.), (SCC), [1995] 3 S.C.R. 764; and R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 38.

With the increasedflexibility provided by the principled approach, however, the gatekeeper function of the trial judge becomes more complex and nuanced. [132] The concept of “necessity” was discussed in R v Smith, (SCC), [1992] 2 SCR 915. Relying on Wigmore, theCourt underscored the fact that the categories of necessity are not closed. However, it emphasized “a flexible definition, capable ofencompassing diverse situations.

What the situations will have in common is that the relevant direct evidence is not, for a variety ofreasons, available”: at para 37. [133] In Smith, the Court also discussed the concept and criterion of “reliability” in the context of the principled exception. At para34, the Court held: The criterion of “reliability” – or, in Wigmore’s terminology, the circumstantial guarantee of trustworthiness – is a function of thecircumstances under which the statement in question was made.

If the statement sought to be adduced by way of hearsay evidence ismade under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidencemay be said to be “reliable”, i.e. a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant inKhan was found to be reliable on this basis. [134] At this stage of the trial when considering the admissibility of evidence to go to the jury, the concern is with thresholdreliability only.

The Crown bears the onus of proof and, as such, must establish threshold reliability on a balance of probabilities:McMorris, at para 23. Threshold reliability is not concerned with whether a statement is true or untrue. Rather, threshold reliabilityfocuses on whether the circumstances surrounding the statement provide a circumstantial guarantee of trustworthiness: Starr, at para

215 . [ 135 ] In Khelawon , the Supreme Court provided clarification on the distinction between threshold and ultimate reliability. At the same time, it clarified its earlier decision in Starr . At para. 93, the Court held: As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context. Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed. Relevant factors should not be categorized in terms of threshold and ultimate reliability.

Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and, on those attributes, or circumstances relied upon by the proponent to overcome those dangers. In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility — it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire. [ 136 ] In The Law of Evidence , 8 th ed, Irwin Law, Paciocco JA, Prof. P.

Paciocco, and Pro

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