February 28, 2018
Vézina, Savard, Ruel
Appeal from a conviction. Dismissed.
The appellant appeals from a judgment of the Superior Court dismissing his appeal from a judgment of the Court of Quebec that convicted him of impaired driving and hit and run.
The trial judge erred in remarking on the appellant’s failure to call certain witnesses and by drawing a negative inference therefrom. However, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code (R.S.C., c. C-46) applies in this case because no substantial wrong or miscarriage of justice has occurred. Indeed, even if this error had not been made, guilt was the only possible verdict because the prosecution proved all the facts constituting the two offences and the appellant’s arguments were implausible and false.
Moreover, the Superior Court judge did not err in law in finding that the audio recordings of a witness constituted a hearsay exception. Since these recordings were made [translation] “in the heat of the moment”, they constitute res gestae, i.e., acts or statements made during the course of an offence. The conditions of admissibility of this type of statement are relevance, necessity and reliability. Their relevance in this case was not called into question. As for their reliability, since their content corresponds substantially with the appellant’s version, this factor should not be in doubt. Finally, since the objective of the trial is the search for the truth, and the recordings made it possible to bring additional evidence to the record, such as the person’s tone of voice, his silences, the keenness of his responses, etc., they should be considered necessary. It would be absurd to refuse to admit in evidence the exact content of a witness’s remarks when that witness admits to having made them, reports their essential content, and makes himself available for cross-examination.
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