R. v. D.J.S., 2010 BCSC 1962

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D.J.S., 2010 BCSC 1962 Date: 20101214 Docket: 21387-2 Registry: Smithers Regina v. D.J.S. BAN ON DISCLOSURE PURSUANT TO S. 486.4(1) C.C.C. Before: The Honourable Madam Justice M. Koenigsberg Oral Ruling re: Admissibility Counsel for the Crown: R.S. Dusanjh Counsel for the Accused: W.W. Chapman Place and Date of Trial/Hearing: Smithers, B.C. December 13-14, 2010 Place and Date of Judgment: Smithers, B.C.

December 14, 2010 [ 1 ] The defence objects to the Crown leading evidence from the complainant of her words and actions accusing the accused of sexual assault on October 30, 2008. The defence submits that leading this evidence falls afoul of s. 275 of the Criminal Code which abrogates the right of the Crown to call such evidence. After hearing the evidence in a Voir Dire and the submissions of counsel I rule the following evidence admissible: 1. The evidence of both J.K. and the complainant regarding the complainant's evidence of what she perceived happening to her at the time it was happening.

Then within seconds and minutes following it, J.K. coming to her room and what evidence she gave about what she observed and heard outside her bedroom in the hall; and 2. What J.K. observed and heard. [ 2 ] This evidence forms part of the res gestae in this particular case. From the moment that the complainant was awakened, she began to scream and kick. She did not stop. She was heard by the accused. She was heard by J.K. before J.K. arrived at her bedroom door.

This evidence is corroborated by part of the evidence of the accused. [ 3 ] I note that the accused at one point in his evidence, although he was inconsistent on this point (as well as others), acknowledged that he recalled having a conversation, I will call it an exchange, with J.K. on the landing at the top of the stairs just outside the complainant's bedroom door, along the lines of J.K. asking "What's going on?" and the accused answering, "Nothing, she is screaming, she is hollering, nothing." [ 4 ] That is consistent with the complainant's recollection that she heard an exchange outside her door.

The fact of exactly what she heard is not really determinative of much of anything, except that it is important that she heard it and that it likely occurred, according to the accused as well as J.K. [ 5 ] Then J.K. went into the room and closed the door and described the complainant as hysterical, as yelling and swearing, all related to what she was telling him had occurred.

That is consistent with the complainant saying she was very upset and this all occurred, likely within minutes. [ 6 ] The estimates of time given by any of the witnesses, is completely unreliable, as is the evidence of most witnesses in such circumstances. What likely takes seconds, they often testify took minutes. [ 7 ] In my view, the yelling and the complaint being told to J.K. are all part of the same transaction. [ 8 ] It is a fair description of a spontaneous declaration or a startled response. [ 9 ] I adopt a useful list in R. v. Cavanagh , [2001] O.J. No. 5485, at para. 14 .

These are the factors to be considered and I add the evidence of what I find was said and done each of the factors: 1. What questions are put to the declarant prior to or during the statement.

"What happened?" 2. The amount of time that elapses. I would say if it was more than seconds, it was within a few minutes. 3. The lack or presence of malice between the declarant and the accused. On all of the evidence of all three witnesses, the accused was a friend and a person who was welcome in their home and welcome to drink with them. He had been helped by them and he had helped them. 4. Impairment of the declarant. I do not find that whatever impairment she may have had, and I doubt that it was very much at the time, that it could have been sufficient to affect her credibility. 5.

Emotional level of the declarant. I think hysterical would probably describe it. 6. Severity of the injury. For this witness, on all of the evidence, it was extreme. 7. General atmosphere in which the statement was made. It was one of hysteria, anger, upset, shock. [ 10 ] So all seven factors are in favour of finding that this formed part of the res gestae and that it is admissible. [ 11 ] Further submissions may be made as to the weight this evidence should be given, however because this evidence forms part of the res gestae , in my view there is little to consider regarding weight.

In this situation, we are not talking about exactly what happened, exactly who did what, about the kinds of things that very often do affect the weight. [ 12 ] In my view, it is a piece of evidence which should be admitted for the truth of it, and it is just one factor that the court considers. “Koenigsberg J.”