R v Pelletier, 2024 SKCA 12

Court of Appeal for Saskatchewan Docket: CACR3574 Citation: R v Pelletier , 2024 SKCA 12 Date: 2024-02-12 Between: Nicholas Sean Pelletier Appellant And His Majesty the King Respondent Before: Richards C.J.S., Schwann and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On appeal from: Provincial Court, Regina Appeal heard: June 9, 2023 Counsel: Andrew Hitchcock for the Appellant Roger DeCorby, K.C. for the Respondent Barrington-Foote J.A. I.

INTRODUCTION [ 1 ] The appellant, Nicholas Pelletier, was tried by a judge of the Provincial Court on an aggravated assault charge and several firearms charges. The alleged victim of the assault, Kyle Sparvier, did not testify and, as a result, the key to the Crown’s case was two out- of-court statements made by Mr. Sparvier. One was made to a civilian bystander wherein Mr. Sparvier had asked the bystander to call the police for assistance. The other was made to a police officer. In it, Mr. Sparvier identified Mr. Pelletier as the perpetrator of the assault.

The trial judge admitted both statements under the spontaneous utterances exception to the hearsay rule. Mr. Pelletier was convicted of aggravated assault. He was also convicted of two firearms offences. [ 2 ] Mr. Pelletier appeals and argues that the conviction for aggravated assault should be set aside because the out-of-court statements were not properly admitted into evidence.

He also submits that the weapons convictions should be overturned because the trial judge mishandled the assessment of the relevant circumstantial evidence. [ 3 ] I am persuaded that the trial judge erred by admitting the statements and that, absent those statements, there is insufficient evidence to support a conviction. As a result, Mr. Pelletier’s appeal must be allowed, his convictions quashed and acquittals entered in relation to the charges of which he was convicted. My reasons for these conclusions follow. II.

THE EVIDENCE [ 4 ] The trial judge conducted a voir dire to determine whether the two statements in issue should be allowed into evidence. After admitting them, he proceeded with the trial proper. In order to explain the issues at stake in this appeal, it is necessary to recount the relevant parts of the evidence that was adduced at both the voir dire and the trial. [ 5 ] Jasmine Ates testified at the voir dire . She lived in a row house at 1922 Garnet Street, oriented at a right angle to the alley that runs between the backyards of the houses on Athol Street and those on Garnet Street.

At 3:45 p.m. on August 25, 2019, Ms. Ates walked out of her back door with her dog. She saw a man, later established to be Mr. Sparvier, “walk from [her] backyard area”, which is effectively common with those of the other row houses in the development, including 1918 Garnet Street. Mr. Sparvier was “covered in blood” and said to her “can you please call the cops, they just beat me up?”. Ms. Ates did not have a phone, so she directed Mr. Sparvier to some friends across the alley and carried on her way. Mr. Sparvier walked toward the friends. Ms. Ates was not asked about Mr. Sparvier’s demeanour. [ 6 ] Ms.

Ates returned to her home after having taken her dog for a walk. While in her kitchen, she heard a woman laugh and then speak. She believed the woman to be at 1918 Garnet Street. Ms. Ates said that she then saw a man walk out of 1918 Garnet Street (later she described the man as having came from the direction of 1918 Garnet Street). She heard the man say something like “if I see that fucker, he’s dead” or “I’m going to shoot him”. She watched the man walk across the alley and into the backyard of the house at 1915 Athol Street. Ms.

Ates testified that the man was “First Nations”, that she assumed he was “twenties-ish” in age, and that he was wearing a red and black sweater and pants that could have been red or black, and that he may have been wearing a hat. It was her evidence that she saw this second person approximately half an hour after she had first seen Mr. Sparvier. Ms. Ates was unable to identify Mr. Pelletier as being the second person, saying that “it could have been him” but that she was “not 100 percent sure”. [ 7 ] Ms.

Ates testified that although she was also not “100 percent sure” of the time, she had left her home in her car about 30 minutes after she had seen the second person. She saw several police cars speeding past and wanted to see where they were going. As she drove by a gas station two blocks away from her house, she saw the police cars and observed Mr. Sparvier sitting outside on a windowsill. She stated that this was also about 30 minutes after she had first encountered him. She stopped and told the police what she had witnessed earlier.

[ 8 ] Constable Tyler Gruber of the Regina Police Service also testified at the voir dire . He was on patrol on the afternoon of August 25, 2019, and was dispatched to a gas station on Saskatchewan Drive at 4:01 p.m. There, he encountered Mr. Sparvier, whom he described as having been bleeding profusely, with his shirt “drenched in blood”. When asked what he meant by “bleeding profusely”, Cst. Gruber said that Mr. Sparvier did not have “large slashes or anything” but did have several “bumps with cuts to them” that looked like blunt trauma-type head injuries.

He stated that he had observed a consistent flow of blood from some of these cuts that had saturated Mr. Sparvier’s shirt, and that in his experience, “a saturated shirt is a fairly substantial amount of blood”. However, he later acknowledged in cross-examination that Mr. Sparvier was not wearing a shirt at the time. Constable Gruber also estimated that Mr. Sparvier’s injuries had occurred only a couple of minutes before he saw them. [ 9 ] Constable Gruber asked Mr. Sparvier what had happened, and he replied that Mr. Pelletier had struck him numerous times with a Beretta handgun. He testified that Mr.

Sparvier was “extremely angry”, chanted Mr. Pelletier’s name several times and said that Mr. Pelletier had “done it” and was not his friend. Constable Gruber also said Mr. Sparvier told him that the incident had happened in a duplex a couple of blocks away. Constable Gruber described Mr. Sparvier as “frantic”, but “coherent enough to be yelling words and -- and describing what had taken place”. He did not make a note of Mr. Sparvier being intoxicated. [ 10 ] Mr. Sparvier was taken to the hospital soon after by EMS, which Cst. Gruber said he had called to attend “quicker than normal” because Mr.

Sparvier was “obviously injured”. Mr. Sparvier had lacerations on his scalp and left earlobe which were treated with staples and sutures. The police did not take a statement from Mr. Sparvier before he was released from hospital after he had received this treatment. When he was located by police a couple of days later, he gave a written statement saying that he had been very intoxicated at the time of the assault and that he did not know who had attacked him. [ 11 ] Constable Amber Hawker was also at the scene on August 25.

When she arrived, she was told that a suspect was believed to be in the house at 1915 Athol Street. She proceeded to that address and parked across the street. Shortly thereafter, she observed Mr. Pelletier in the narrow walkway that separated 1915 Athol Street and 1909 Athol Street. He was tucked against 1909 Athol Street and moving slowly, looking around as if he was trying not to be seen. He eventually came out from between the two houses and was placed into custody. [ 12 ] A .22 calibre handgun was found in the walkway between 1915 Athol Street and 1909 Athol Street – where Mr. Pelletier had been observed.

It was covered by some dry leaves and foliage. A magazine with two live rounds of ammunition was beside the handgun. Testing taken from various parts of the handgun revealed the presence of the DNA of three people on the grip, none of whom were identified. There was what appeared to be blood near the sight of the gun. Testing showed that it matched the DNA of two individuals, one of whom was Mr.

Sparvier. [ 13 ] The police also found what Constable Jarrod Creaser described as a red sweater in that walkway, toward the front of 1915 Athol Street, as well as a pile of clothing in a shed located in the backyard of that house. The sweater had what appeared to be blood on it. Neither it nor any of the other items of clothing were sent for DNA testing. [ 14 ] Mr. Pelletier appeared to have blood on his clothing and blood spatter on his nose, forehead and under his right eye. A swab was taken from his nose, but no samples were taken from his clothes.

DNA testing revealed that the blood on his nose was of mixed origin, consistent with having originated from two individuals, one of which matched a sample taken from Mr. Sparvier. The officer who took the samples also testified that he thought there was “possibly some blood around his cuticles and on [Mr. Pelletier’s] hands”. A swab was taken from Mr. Pelletier’s hand but was not sent for DNA testing. [ 15 ] The police also attended at 1918 Garnet Street. The police knocked for twenty minutes, but the occupant would not come to the door. They accordingly breached the back door with a door ram and called out.

The woman who immediately came to the door was reluctant to allow them to enter. She appeared to be intoxicated. Her three children were also in the home. The police were ultimately permitted to enter. [ 16 ] Constable Melissa Carey testified that there was “blood basically everywhere in that house”. Blood was found near the back door, on a wall in the hallway leading from that door, and on the back of the front door. There was also blood on the ceiling, on walls and the floor in the living room, and in the basement. A swab was taken from the floor near the back door but was not sent for DNA testing.

A trail of blood led from 1918 Garnet Street to the gas station. III. THE DECISION UNDER APPEAL [ 17 ] Mr. Sparvier could not be located to testify at the trial. As a result, the Crown sought the admission of the statements that Mr. Sparvier had made to Ms. Ates and Cst. Gruber. It relied on both the excited utterances exception to the hearsay rule and on the principled exception to that rule. [ 18 ] Following the voir dire , the trial judge admitted both statements on the basis of the spontaneous utterances exception.

However, he declined to admit the statements on the basis of the principled exception to the hearsay rule.

He explained his thinking on this front as follows: While unnecessary to my decision with respect to the principled exception to the hearsay rule, while the Crown had established that the admission of the two statements was necessary, after carefully considering the circumstances of the two statements here, and the circumstances and principles as set out by the Supreme Court of Canada in [ R v Bradshaw , 2017 SCC 35 , [2017] 1 SCR 865], and the Saskatchewan Court of Appeal in [ R v Johnson , 2018 SKCA 28 , 360 CCC (3d) 512], I have come to the conclusion that the requirement of procedural reliability has not been met here.

As such, I do not admit the two statements on that basis. Neither Mr. Pelletier nor the Crown took issue with that determination. [ 19 ] The trial judge found that Mr. Pelletier had assaulted Mr. Sparvier with the gun at 1918 Garnet Street and had thereby committed an aggravated assault. He also convicted Mr. Pelletier of possessing a prohibited firearm with readily accessible ammunition

without being the holder of an authorization or the registration certificate, contrary to s. 95(1) of the Criminal Code , and of being in possession of a firearm while being prohibited from doing so contrary to s. 117.01(1) of the Criminal Code . [ 20 ] Mr. Pelletier contends that the trial judge erred in admitting into evidence the statements made by Mr. Sparvier to Ms. Ates and Cst. Gruber for the purpose of proving the truth of their contents. He says that, without these statements, the evidence cannot sustain his convictions for the aggravated assault. Mr.

Pelletier also argues that the firearms convictions cannot stand because the trial judge failed to employ the proper approach for dealing with a prosecution based on circumstantial evidence. By way of a bottom line, Mr. Pelletier submits that the Court should direct acquittals on all three charges. IV. ANALYSIS A. The law: spontaneous utterances [ 21 ] While out-of-court statements are presumptively inadmissible for the truth of their contents, the law continues to recognize an exception to this rule for what have come to be called spontaneous or excited utterances. The Honourable S. Casey Hill, David M.

Tanovich & Louis P. Strezos, McWilliams ’ Canadian Criminal Evidence , loose-leaf (Rel 4, October 2023) 5th ed (Toronto: Thomson Reuters, 2023) (WL) at §7 :59 [ McWilliams ], suggests that “now … the test can be stated rather simply – a statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded”.

They describe two key criteria that must be met; that is, “(1) that the statement be made contemporaneous to an unusual, overwhelming event that (2) left the declarant (at the time of the declaration) under pressure or emotional intensity which would give the guarantee of reliability”.

The reason that these conditions are believed to guarantee reliability was more fully explained by Thorburn J.A. in R v MacKinnon , 2022 ONCA 811 , 164 OR (3d) 535 [ MacKinnon ], as follows: [40] One of the traditional exceptions to the general rule that hearsay evidence is inadmissible is the exception for spontaneous declarations.

The requirement that the statement be made spontaneously under the pressure of a dramatic event is specifically geared to minimize the danger of fabrication or distortion because the declarant’s faculty is so overcome by the harrowing event that there is no opportunity for reflection, speculation or concoction. “Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested”: R. v. Nguyen , 2015 ONCA 278 , at para. 145 , leave to appeal refused, [2015] S.C.C.A. No. 365; R. v.

Khan , [1990] 2 S.C.R. 521, at p. 540 ; and S. Casey Hill, David M. Tanovich and Louis P. Strezos, 5th ed., McWilliams’ Canadian Criminal Evidence (Aurora: Canada Law Book, 2022), at § 7:59. [41] Spontaneity and contemporaneity of the utterance are the guarantors of reliability: R. v. Andrews , [1987] A.C. 281, [1987] 1 All E.R. 513 (H.L.), at pp. 300- 1 ; R. v. Alexander , 2012 ONSC 5873 , at paras. 26-27 ; R. v. Camara , 2021 ONCA 79 , 400 C.C.C. (3d) 490, at paras. 78 , 83-85; and David M.

Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence , 8th ed., (Toronto: Irwin Law Inc., 2020), at p. 231. [ 22 ] In this case, the central issue relates to the requirement for contemporaneity. There was a time when this aspect of what was once called the res gestae exception to the hearsay rule required that a statement had to be effectively part of an unusual, dramatic or overwhelming event to be admissible. In this regard, David M.

Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence , 8th ed (Toronto: Irwin Law, 2020) at 229, refers by way of illustration to the case of R v Bedingfield (1879), 14 Cox CC 341. The accused, known as “Harry”, went into a house. Very shortly thereafter, the deceased ran out of the house with her throat slashed and said, “See what Harry has done!” The statement was not admitted because it had not been made until after the attack was over. [ 23 ] This requirement for strict contemporaneity has been long abandoned. However, as I have explained, the requirement for contemporaneity remains.

The fact that there has been an unusual, dramatic or traumatic event that emotionally overpowered the declarant is not enough. The declarant must, at the time of the declaration , continue to be under the pressure or emotional intensity that obviates the risk of concoction or distortion; it is this that provides the guarantee of reliability which underpins the exception. For this reason, contemporaneity remains an essential aspect of the functional analysis that must be undertaken by a trial judge.

As the Court of Appeal for Ontario explained in R v Hartling , 2020 ONCA 243 at para 59 , 388 CCC (3d) 305, “since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made”. [ 24 ] This analytical framework was explained with admirable clarity by the House of Lords in R v Andrews , [1987] AC 281 at 300– 301 (which is reproduced in both McWilliams at §7:59 and The Law of Evidence at 230), as follows: 1.

The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded? 2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.

In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. 3. In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event.

Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. 4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. … [ 25 ] The following statement by Watt J.A. in R v Camara , 2021 ONCA 79 , 400 CCC (3d) 490, is also instructive, emphasizing as it does that the declarant cannot have time for reasoned reflection:

[85] The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event.

In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews , [1987] A.C. 281 (H.L.), at pp. 300-1 . [ 26 ] Because reliability is guaranteed by the related factors of contemporaneity to a dramatic event and spontaneity, there is – except in what have been described as “rare cases” – no separate or free-standing analysis of reliability when considering whether to admit a declaration under this traditional exception to the hearsay rule.

Evidence that meets the test for spontaneous utterances is presumptively admissible. In MacKinnon , Thorburn J.A. explained the “rare case” exception as follows: [44] In some cases, a spontaneous utterance should not be admitted if there are “special features” that could give rise to an error by the declarant: [ R v Badger , 2021 SKCA 118 , 406 CCC (3d) 459] at para. 31; see also, [ R v Andrews , [1987] AC 1 281 (HL)], at p. 301; R. v. Hall , 2018 MBCA 122 , at paras. 41 , 53-55.

Courts have also recognized that, in “rare cases”, even traditional exceptions to hearsay – including spontaneous utterances – can be challenged on the basis that, in a particular case, the indicia of necessity and reliability are lacking: [ R v Starr , 2000 SCC 40 , [2000] 2 SCR 144], at para. 214; [ R v Mapara , 2005 SCC 23 , [2005] 1 SCR 358], at para. 15; and [ R v Khelawon , 2006 SCC 57 , [2006] 2 SCR 787], at para. 42; see also, [ R v Nurse , 2019 ONCA 260 , 145 OR (3d) 241], at para. 92.

Given the potential overlap of these inquiries and the fact that they are both directed at ensuring the reliability of a statement, the “special features” of a case are, in my view, best considered together with the analysis of whether the “rare case” exception applies.

Stated otherwise, in rare cases, special features may render a statement considered under the traditional exception for spontaneous utterances unreliable and therefore inadmissible. [45] Such cases are expected to be few and far between, as evidence that satisfies the requirements of a traditional exception is presumptively admissible precisely because these exceptions “traditionally incorporate an inherent reliability component” : Starr , at para. 212 ; Nurse , at paras. 63, 89 . … [47] In the context of the spontaneous utterance exception, “rare cases” may include circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions.

When there is evidence strongly pointing to the presence of such circumstances, trial judges cannot exclude the real possibility of error and inaccuracy, and the hearsay statement will not meet the threshold reliability requirement under the principled approach: see Andrews , at pp. 300-301; R. v. Hall , 2011 ONSC 5628 , at paras. 29 , 58-62; Badger , at paras. 34, 37 and 40-42; [ R v Hall , 2018 MBCA 122 , 368 CCC (3d) 520], at paras. 53-54, 96, 98 and 118-19; and McWilliams , at § 7:59. … [49] ...

The “rare case” exception must extend beyond the reliability concerns inherently captured in the traditional hearsay exception to be unique to the case at hand: Mapara , at para. 36 ; Nurse , at para. 92 . … [51] The onus is on the party wishing to invoke the “rare case” exception to demonstrate that there are special features in a given case such that the presumptively admissible hearsay evidence does not meet the principled requirements of necessity and reliability: Mapara , at paras. 15, 37 ; Nurse , at para. 91 .

There is a high threshold to be met by a party seeking to exclude evidence on this basis: see Starr , at paras. 212, 214 ; R. v. Kler , 2017 ONCA 64 , 345 C.C.C (3d) 467, at para. 79 ; and Nurse , at para. 91 . (Emphasis added) [ 27 ] R v Badger , 2021 SKCA 118 , 406 CCC (3d) 459, affirmed 2022 SCC 20 , 468 DLR (4th) 607 [ Badger ], which was cited by both parties, was one of those rare cases where it was appropriate to consider reliability. There, the admission of the utterance at issue was challenged on the basis that it lacked reliability because of the declarant’s intoxication.

Here, there was some evidence of intoxication. However, Mr. Pelletier has not appealed on the ground that the trial judge erred in finding that evidence to be of no significance. The rare case exception is not engaged. It is, accordingly, not only unnecessary, but would be an error of law to separately assess threshold reliability. B. The out-of-court statements and the aggravated assault charge [ 28 ] Mr. Pelletier takes no issue with the trial judge’s statement of the law relating to spontaneous utterances.

Rather, his principal argument is that the trial judge erred in the application of the relevant principles by focussing on the traumatic event – the assault – that he found to have dominated Mr. Sparvier’s mind and by overlooking the fact that the temporal connection between the assault and the statements at issue was a crucial part of the required analysis. He stresses that findings of contemporaneity must be rooted in the evidence and contends that the trial judge failed to engage with this issue and instead simply declared the bottom-line result. [ 29 ] In my view, Mr. Pelletier is correct.

Having completed a detailed recitation of the voir dire evidence which contained virtually no findings, the trial judge referred with approval to the

summary of the governing legal principles relating to spontaneous utterances by Hinds P.C.J. in R v Badger , 2019 SKPC 43 [ Badger PC ]. He then explained his reasons for finding that both statements were admissible under that exception, as follows: Turning to my brief analysis, given the timeframes and the – the locations involved, I find that what Mr. Sparvier said to Ms. Ates was contemporaneous to an unusual and overwhelming event, in which Mr. Sparvier was badly hurt with injuries to his head. The statement was so closely associated with the assault, which (INDISCERNIBLE) the statement, that the mind of Mr.

Sparvier was still dominated by the assault. I also find that what Mr. Sparvier said to Ms. Ates was under pressure and emotional intensity, which provides the guarantee

of reliability. I further find that there was little evidence that Mr. Sparvier was so drunk or intoxicated, that he would make an error when he said, They just beat me up. As such, I find that what Mr. Sparvier spontaneously and without time for concoction said to Ms. Ates admissible in accordance with the res gestae exception to the rule against hearsay. The weight I will give to it will be determined at the trial. I also find that what Mr. Sparvier said to Constable Gruber is admissible, as well. I find that it was still contextually contemporaneous to a violent incident in which Mr.

Sparvier was badly hurt with injuries to his head. The statement was still so closely associated with the assault, which -- which (INDISCERNIBLE) the statement, that the mind of Mr. Sparvier was still dominated by the assault. I also find that what Mr. Sparvier spontaneously and without time for concoction said to Constable Gruber, which was more detailed than his utterance to Ms. Ates, was still under pressure and emotional intensity, which provides the guarantee of reliability. Further, I find that at that point, Mr. Sparvier was so angry, when he repeatedly named Mr.

Pelletier as the person who was responsible for hurting him and how he did it, without any prompting from Constable Gruber, that he did not think about the consequences of doing so. Again, I see little evidence of drunkenness or intoxication on the part of Mr. Sparvier. The weight I will give this evidence will be determined at the trial. [ 30 ] Clearly, this reasoning does not relate the particulars of the evidence before the trial judge to the issue of contemporaneity. It is made up of conclusory statements, cast in the language of the legal test for spontaneous utterances.

With respect, although the trial judge correctly identified the analytical framework, he committed an error of law by failing to apply it to the evidence. [ 31 ] Importantly, the trial judge did not find when the assault had occurred, despite that the timeline was at issue in this case. Indeed, his assessment of this key issue is brief and incomplete not only in this respect, but in general. He referred to Ms. Ates’s evidence that she first encountered Mr.

Sparvier at 3:45 p.m., as well as to her evidence that her encounters with the two men “happened around 3:30 to 4 p.m.” Although he did find that this first encounter occurred at 3:45 p.m. – a finding of fact that must be accepted as it was not challenged by Mr. Pelletier – he did not reconcile this conclusion with Ms. Ates’s evidence that she saw the second man 30 minutes after she saw Mr. Sparvier, and that she subsequently saw Mr. Sparvier at a gas station a mere two blocks away some 30 minutes after that.

Rather, having summarized the evidence and referred to an overview by Hinds P.C.J. in Badger PC of the law relating to spontaneous utterances, the trial judge simply found that the statement to Ms. Ates was contemporaneous, and that the statement to Cst. Gruber was “contextually contemporaneous”. [ 32 ] The Crown submits that these findings – that the first statement was “contemporaneous” and that the second was “contextually contemporaneous” – do not constitute palpable errors and that they are sufficient to ground the trial judge’s decision to admit the statements. With respect, I do not agree.

I read these statements not as findings of fact, but as conclusory statements that the facts met this aspect of the legal test; that is, that the declarations at issue were made close enough in time to the assault to be considered contemporaneous within the meaning of the law. They are part and parcel of the trial judge’s failure to attend to the evidence relevant to the timeline. [ 33 ] It is also significant that there was no evidence that Mr. Sparvier was in a state of panic because he was being pursued and believed that he was in imminent danger. That is consistent with Ms.

Ates’s testimony that she did not see the second person for about 30 minutes. Indeed, Ms. Ates did not describe Mr. Sparvier’s demeanour or state of mind at all. She was not asked to do so. She described only a polite request from Mr. Sparvier that she call the police and stated that he then “wandered off” toward her friends. More specifically, she recalled that he asked: “can you please call the cops, they just beat me up?”, and that she responded as follows: … I told him I didn’t have my phone on me.

And I’d noticed a couple of friends in the yard across the alley, so I looked at them to talk to them and the guy wandered off towards them and I continued down the alley with my dog. [ 34 ] Having failed to deal with the evidence relating to the timeline and to determine when Mr. Sparvier was assaulted, the trial judge also failed to address the evidence as to whether he was emotionally overpowered when he spoke to Ms. Ates. Rather, having concluded that the traumatic event was contemporaneous with that encounter, he assumed that Mr.

Sparvier’s mind had been dominated by that event and that what he had said was uttered under emotional intensity. [ 35 ] In the result, I conclude that the trial judge, when considering the admission of Mr. Sparvier’s statement to Ms. Ates, failed to apply the legal test relating to the contemporaneity requirement. Indeed, as I have explained, he did not determine when the assault occurred. He also erred by failing to consider the evidence bearing on the question of whether Mr. Sparvier was emotionally overpowered. [ 36 ] The fact that the trial judge erred in this way in relation to the statement to Ms.

Ates also means that he erred in admitting the statement to Cst. Gruber for a hearsay purpose. That is so because the failure to determine a timeline was equally significant when assessing whether the second statement was contemporaneous and whether Mr. Sparvier was still emotionally overpowered when he made it. There was no evidence of what Mr. Sparvier had done during the time that had passed between his encounter with Ms. Ates and his arrival at the gas station. The only evidence of the timeline other than that of Ms. Ates is that of Cst. Gruber. He testified that Mr. Sparvier was bleeding profusely.

That observation – which was based in significant part on his erroneous belief that Mr. Sparvier was wearing a shirt that was soaked in blood – was central to his unfounded conclusion that the assault had happened a couple of minutes before. Ms. Ates’s evidence confirmed that the event that resulted in the injuries to Mr. Sparvier had taken place more than 30 minutes before he was approached by Cst. Gruber. [ 37 ] In addition, and as in relation to Mr. Sparvier’s statement to Ms. Ates, the trial judge erred by failing to consider the evidence as to whether the traumatic event that led to Mr.

Sparvier’s injuries continued to dominate his thoughts such that his utterance to Cst. Gruber was an instinctive reaction to that event. The trial judge’s reasons on that point demonstrate that he equated the fact that Mr. Sparvier was angry because he had been beaten with being emotionally overborne within the meaning of the legal test. That, too, reflects an error of law. [ 38 ] For these reasons, I conclude that the trial judge erred in law in admitting the statements made by Mr. Sparvier to Ms. Ates and

Cst. Gruber. Those statements were important evidence in relation to all of the offences at issue, being direct evidence that Mr. Pelletierstruck Mr. Sparvier with the handgun. That is what the trial judge found had occurred. I would accordingly allow Mr. Pelletier’sconviction appeal in relation to all of the offences. C. Standard of review: the admissibility of spontaneous utterances [39] Before turning to the question of remedy, I will briefly flag the question of the standard of review that applies in relation to theadmissibility of evidence pursuant to the spontaneous utterances exception.

The Crown submits that the standard of review as to a decisionof whether to admit evidence is not correctness but rather that such a decision should not be overturned unless it is unreasonable orunsupported by the evidence. It relies on R v Bradshaw, 2017 SCC 35 at para 60, [2017] 1 SCR 865, and R v Blackman, 2008 SCC 37 atparas 36 and 46, [2008] 2 SCR 298, for that proposition.

Both of those cases were concerned with the admissibility of evidence pursuantto the principled exception to the hearsay rule and not pursuant to any of the traditional exceptions that continue to apply. [40] I note, by way of comparison, R v Schneider, 2022 SCC 34, 418 CCC (3d) 137, which related to the admissibility of evidencepursuant to the hearsay exception for party admissions.

As Rowe J. there noted, R v Mapara, 2005 SCC 23 at para 12, [2005] 1 SCR 358,confirmed that the “circumstance-specific” exceptions to the hearsay rule remain presumptively operative despite the development of theprincipled exception (at para 50). The exceptions for party admissions and spontaneous utterances are two such exceptions.

Justice Rowe,having referred to both the party admissions and certain other traditional exceptions, found as follows: [58] A trial judge’s determination that evidence is hearsay but falls within an exception from the general exclusionary rule is a questionof law, reviewable on a standard of correctness. [41] This reasoning in Schneider demonstrates that there is no general rule that appellate courts must defer to decisions by trialjudges to admit evidence.

In R v Youvarajah, 2013 SCC 41, [2013] 2 SCR 720, Karakatsanis J. explained why a deferential standard isapplied where the appeal relates to the admission of evidence under the principled exception. As she said, a trial judge is “well placed toassess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them. Thus, absent an errorin principle, the trial judge's determination of threshold reliability is entitled to deference” (at para 31, citing R v Couture, 2007 SCC 28 atpara 81, [2007] 2 SCR 517.

See, also on this point, R v Lachance, 2023 SKCA 48 at paras 43–45, 426 CCC (3d) 37). [42] The question that remains is whether deference should be accorded where, as here, the issue relates to the spontaneousutterances exception and threshold reliability is not subject to a separate analysis. In my view, this question has not been decided by thisCourt. In Badger, Tholl J.A. – noting that the admissibility of hearsay evidence is a question of law – held that “a trial judge’sdetermination of threshold reliability is entitled to deference” (at para 33, citing Youvarajah at para 31).

However, as is noted above,Badger was one of the rare cases where it was appropriate for the trial judge to have considered threshold reliability when determiningwhether to admit the evidence at issue. [43] It is not necessary for purposes of this appeal to decide this outstanding question. It is an error of law to fail to correctly identifythe legal test that governs the admissibility of spontaneous utterances or to fail to apply those principles. Alleged errors of law arereviewable on the correctness standard. The trial judge committed errors of this kind.

The question of whether the correctness standardapplies for all purposes – other than in relation to underlying findings of fact and where threshold reliability is at issue – is best left foranother day, when it can be considered with the benefit of full submissions by the parties. D. Remedy [44] The question that remains is whether, as contended by Mr. Pelletier, the appropriate remedy is to enter acquittals or to order anew trial.

The Crown made no submissions as to the order that should be made if the conviction appeals were allowed. [45] The issue of when an acquittal should be entered was discussed in R v Owston, 2023 SKCA 101, [2023] 11 WWR 576, wherethis Court affirmed that the test is the same as that which arises when an appellant alleges that their conviction was unreasonable: [57] When a verdict is set aside because it cannot be supported by the evidence, an appellate court must quash the conviction and maydirect an acquittal or order a new trial: Criminal Code s. 686(1)(a)(

i) and s. 686(2). A verdict of acquittal should be directed, rather than anew trial ordered, when there is no legally admissible evidence upon which a properly instructed trier of fact could reasonably haveconvicted. See: R v S.(P.L.), (SCC), [1991] 1 SCR 909; R v Karuranga, 2021 SKCA 90 at para 37, 488 CRR (2d) 317; Rv Keepness, 2007 SKCA 42 at paras 9–10, 293 Sask R 77; R v MacNeil, 2009 NSCA 46 at paras 16–​17, 244 CCC (3d) 88 [MacNeil]. [58] In MacNeil, the Nova Scotia Court of Appeal discussed when an acquittal should be entered, rather than ordering a new trial.

Thecourt affirmed that when there was no admissible evidence at trial that could have reasonably proven an essential element of the offence, itis fundamentally unjust to order a new trial rather than entering an acquittal because, after having failed to prove the accused’s guilt, theCrown should not have another opportunity to convict. The court noted: [16] This court has adopted the general test relied on by the Crown in several cases. In R. v. D.C.S. (2000), 184 N.S.R. (2d) 299, 2000NSCA 61, this court states: [46] In their text, The Conduct of an Appeal, Butterworths 1993, the late Justice John Sopinka and Mr.

Mark A. Gelowitz, indicate atp. 116, that the discretion given the court of appeal pursuant to s. 686(2) should be exercised as follows: “... In circumstances in which the admissible evidence was such that a properly instructed trier of fact could reasonably have convicted theaccused, it is appropriate to order a new trial. Where, however, the court of appeal concludes that there was no evidence upon which aproperly instructed trier of fact could have convicted, the appropriate course is to direct a verdict of acquittal.” [17] This general test has been adopted in many cases, see for example: R. v.

Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, ¶14; R. v.Schneider (2004), 228 N.S.R. (2d) 344, 2004 NSCA 151; R. v. Reid & Stratton, 2003 NSCA 104, at ¶94; R. v. Schoenthal, [2007] S.J. No.

387, 2007 SKCA 80, ¶’s 25 to 28; R. v. Keepness (2007), 293 Sask. R. 77, 2007 SKCA 42; R. v. Morin (1997), (QCCA), 5 C.R. (5th) 331; Thorne v. R. (2004), 279 N.B.R. (2d) 92, 2004 NBCA 102; R. v. Wood, [2006] A.J. No. 1457, 2006 ABCA 343, ¶’s40 and 41; R. v. Sobus, [2005] B.C.J. No. 774, 2005 BCSC 526,¶’s 4 and 5. [46] I have concluded that the trial judge erred in admitting the statements made by Mr. Sparvier to Ms. Ates and Cst. Gruber asspontaneous utterances. Further, it is my opinion that if the trial judge had applied the law, he could not have found that they wereadmissible on that basis. Ms.

Ates’s evidence as to Mr. Sparvier’s demeanour did not support a finding that he was under pressure oremotional intensity so as to provide a guarantee of reliability. To the contrary, she reported a polite request for assistance. The fact that Ms.Ates said that Mr. Sparvier was covered in blood did not demonstrate that he had been very recently injured, particularly given that he wasstill bleeding from several cuts more than 30 minutes later. There was nothing in his demeanour to suggest he had just fled and was beingactively pursued.

The evidence of this interaction was sufficient to enable a finder of fact to infer that the incident occurred relativelyrecently, but nothing more. [47] All of this being so, the statement to Ms. Ates was not admissible as a spontaneous utterance. The uncertainty as to when Mr.Sparvier was injured meant that it was it was equally uncertain as to how much time had passed between the events that resulted in hisinjuries and his conversation with Cst. Gruber. The fact that Mr. Sparvier was still bleeding when he spoke to Cst. Gruber had littleprobative value, as he was bleeding more than 30 minutes earlier.

There was no evidence as to how long scalp wounds of the kind sufferedby Mr. Sparvier might ooze blood. The fact Mr. Sparvier had a polite interaction with Ms. Ates was also relevant when considering thespontaneity requirement in relation to the conversation with Cst. Gruber, as was the fact that Ms. Ates described him as having“wandered” off toward her neighbours. So too is the fact that Mr. Sparvier’s angry outburst was in response to a question fromCst. Gruber.

For these reasons, the evidence was also insufficient to demonstrate either the contemporaneity or the spontaneity necessaryto admit the statement to Cst. Gruber as a spontaneous utterance. [48] Without those statements, this case turned entirely on circumstantial evidence.

Where a verdict that depends on circumstantialevidence is challenged as being unreasonable, “the question becomes whether the trier of fact, acting judicially, could reasonably besatisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence” (R v Villaroman, 2016 SCC33 at para 55, [2016] 1 SCR 1000). In R v Nguyen, 2023 ONCA 531, 429 CCC (3d) 192, Paciocco J.A. summarized this principle asfollows: [29] … It is a legal error for a trial judge to render a decision based on an erroneous statement or understanding of the Villaromanprinciples.

However, even if a trial judge has not done so, a trial judge will have rendered an unreasonable verdict, contrary to s. 686(1)(a)(

i) of the Criminal Code, by inferring guilt in circumstances were a reasonable jury, properly instructed and acting judicially could nothave concluded on the evidence as a whole that no inferences consistent with innocence remain open. Put simply, a conviction secured inviolation of the Villaroman principle is an unreasonable verdict, satisfying the test for unreasonable verdicts identified in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at pp. 185-87, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

See also R v Power, 2022 SKCA 24 at para 75, [2022] 10 WWR 263; R v Groshok, 2019 SKCA 39 at para 40; and R v Murillo, 2023SKCA 78 at paras 25–26, 89 CR (7th) 129. [49] The reason that a verdict reached in violation of the Villaroman principle is an unreasonable verdict is, of course, that the“reasonable alternatives” question posed by Villaroman embodies the requirement that the Crown must prove all elements of an offencebeyond a reasonable doubt. The answer to that question turns on both the evidence and absence of evidence.

Justice Cromwell explainedthis in Villaroman, as follows: [35] … Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and iscontrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect tocircumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt,the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in [R v Lifchus, (SCC), [1997] 3 SCR 320], areasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”:para. 30 (emphasis added).

A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonablegiven the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt […] “Other plausible theories” or “other reasonable possibilities” must be based on logicand experience applied to the evidence or the absence of evidence, not on speculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. (Emphasis in original) [50] Accordingly, the question in this case is whether the trial judge could reasonably have been satisfied that the only reasonableinference that could have been drawn based on the evidence and the absence of evidence is that Mr. Pelletier was guilty of aggravatedassault or of the weapons offences. There is certainly evidence that connected Mr.

Pelletier to both the assault and the weapons offences.After she encountered Mr. Sparvier, Ms. Ates saw the person she described as a “First Nations man … wearing a red and black bunnyhug”– a Saskatchewan term for a hooded sweatshirt or “hoodie” – who she said came out of or from the direction of 1918 Garnet Street andwho made threatening comments. That is the garment referred to as a sweater in the trial decision. However, as noted above, she wasunable to identify that man as Mr. Pelletier, and indeed, said she did not want to guess his age, but thought he was in his twenties. [51] Mr.

Pelletier is Indigenous and was 29 years of age on the date of the alleged offences. He was found 30 minutes after the 911

call in the alley between Garnet Street and Athol Street, in a walkway between 1909 and 1915 Athol Street. He was acting as if he did not want to be seen. 1915 Athol Street is across the alley from 1918 Garnet Street. There appeared to be blood on his nose, forehead, under his right eye, and on his clothes and shoes. The handgun and ammunition were hidden in the walkway where Mr. Pelletier was found. There was blood on the handgun. A red and black sweater, which appeared to be bloodstained, was found near the front of 1915 Athol Street. Ms.

Ates identified a photograph of that sweater as the sweater worn by the young man who came from the direction of 1918 Garnet Street. When the police later entered 1918 Garnet Street, they saw blood on the floors, walls, doors and ceiling. There was also a trail of blood spatter from 1918 Garnet Street to the gas station. [ 52 ] All of this evidence could support an inference that Mr. Pelletier had committed both the aggravated assault and the weapons offences. However, the question is not whether a finder of fact could reasonably reach that conclusion.

The question that this Court must answer is whether, based on the evidence and the absence of evidence, the trial judge could reasonably conclude that there were no other reasonable possibilities that were inconsistent with guilt. [ 53 ] The evidence relating to the presence of blood was crucial to the Crown’s case. It is equally important when considering alternative explanations. Constable Carey testified that the DNA test of the swab taken of blood on Mr. Pelletier’s face revealed that it was “of mixed origin consistent with having originated from two individuals”.

The swab of the sight of the gun was “consistent with having originated from two individuals”, one of whom was Mr. Sparvier. There was no evidence that Mr. Pelletier was bleeding, and the source of that blood was otherwise unknown. A swab of the trigger of the gun was not submitted for testing. The sweater and hat were not sent for testing, nor were any samples of the blood found at 1918 Garnet Street.

There was no evidence from a blood spatter expert, a point that was noted by the trial judge. [ 54 ] Further, while the swab of the grip of the handgun did not confirm the presence of blood, the DNA found to be present was “consistent with having originated from at least three individuals, at least one of whom [was] male”. No meaningful comparison could be made between that swab and any sample. [ 55 ] In my opinion, the evidence as a whole, and the absence of evidence, demonstrate that there is at least one other reasonable explanation other than that Mr. Pelletier was guilty of assaulting Mr. Sparvier.

It would be reasonable to conclude that the only reasonable inference is that Mr. Sparvier was injured at 1918 Garnet Street, and that Mr. Pelletier was present when at least some of his injuries occurred. [ 56 ] However, that does not mean that it would be reasonable to conclude that the only plausible theory is that Mr. Pelletier caused Mr. Sparvier’s injuries or, that he was a party to an assault offence that caused them.

The evidence relating to the blood at 1918 Garnet Street, together with the evidence that there was blood from at least two people, meant that it would also be reasonable to conclude that there had been a fight involving Mr. Sparvier and at least one person other than Mr. Pelletier, resulting in injuries to more than one person that caused heavy bleeding and produced very widespread blood spatter. There was no DNA evidence from 1918 Garnet Street that would tend to exclude that reasonable inference. There were no fingerprints on the gun, and Mr. Pelletier’s garments, shoes and hat were not tested for DNA.

Nor was the sweater that was worn by the young man seen by Ms. Ates. That Mr. Pelletier was acting in a fashion that suggested he did not wish to be seen can be plausibly explained, as there were outstanding warrants for his arrest. The blood spatter on Mr. Pelletier’s face consisted of only a few spots, while the blood spatter in the house was widespread. Similarly, the possible bloodstains on his clothing – assuming they were blood – were neither obvious nor widely distributed. [ 57 ] Based on this evidence, and the absence of evidence, it is plausible that Mr.

Pelletier could have been a bystander who observed a fight involving Mr. Sparvier and that he was splattered with blood, or that he could have intervened to help Mr. Sparvier or another participant. While I recognize that “it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation” ( Villaroman at para 71 ), these are plausible theories or possibilities that are inconsistent with guilt that could not be reasonably excluded by a trier of fact, acting judicially. [ 58 ] The same is true in relation to the firearms offences.

Absent the direct evidence from Mr. Sparvier that he was assaulted by Mr. Pelletier, a reasonable explanation exists other than that Mr. Pelletier was in possession of the handgun and ammunition and could not be reasonably excluded by a trier of fact. Another person may have used the gun to assault Mr. Sparvier. That person or a third person may have hidden it in the walkway. [ 59 ] For these reasons, I conclude that an acquittal must be entered in relation to all of the charges. V. CONCLUSION [ 60 ] In the result, I find that Mr.

Pelletier’s conviction appeals must be allowed and that acquittals be entered in relation to all of the offences of which he was convicted. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.