R v Nurse – 2019 ONCA 260 (Trotter):

[54] The first order of business is to determine whether Mr. Kumar’s gestures are capable of being characterized as a statement or utterance. While statements and utterances are usually verbal, consisting of the spoken word,
conduct may also convey meaning. As David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) observe at p. 119: “The nod of the head or the pointing of a finger speak loudly and are intended to communicate a message.” Such conduct is described as “assertive conduct”, to be contrasted with “non- assertive conduct” which asks the trier of fact to infer a statement based on the declarant’s belief: R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at paras. 80-81.

[55] In R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, leave to appeal refused, [2014] S.C.C.A. No. 254,
Strathy J.A. (now C.J.O.) discussed assertions by conduct. He provided the following helpful illustrations, at para.
107: Assertive conduct refers to non-verbal conduct that is intended as an assertion. Some examples include:
nodding the head (indicating “yes” — Chandrasekera v. The King, [1937] A.C. 220 (P.C.)); pointing to
someone (“he’s the one who did it” — R. v. Underwood, 2002 ABCA 310, 130 C.C.C. (3d) 500); pointing at
something (“that’s it” — R. v. Perciballi (2001), 54 O.R. (3d) 346 (C.A.)); shrugging the shoulders (“I don’t
know”); or showing something to someone, without accompanying words (R. v. MacKinnon, 2002 BCCA
249, 165 C.C.C. (3d) 73). In these cases, the conduct is tendered in evidence to prove the truth of an
assertion. The trier of fact must determine the meaning of words the “declarant” intended to convey by the
conduct. [Emphasis in the original.]
See also H.B., at para. 80; and R. v. Tran, 2014 BCCA 343, 316 C.C.C. (3d) 270, at para. 90.

[56] Similar to R. v. Underwood, 2002 ABCA 310, 170 C.C.C. (3d) 500, and R. v. Perciballi (2001), 54 O.R. (3d) 346 R. v. Nurse, [2019] O.J. No. 1636(C.A.), aff’d 2002 SCC 51, [2002] 2 S.C.R. 761 (both referred to in para. 107 of Badgerow quoted above), the question is whether Mr. Kumar’s pointing gestures could be considered to be assertive conduct. I accept that Mr. Kumar’s intended meaning may not have been as straightforward as those two cases. However, it was open to the trial judge to conclude that Mr. Kumar’s gestures were capable of conveying the strong incriminatory assertions that “Nurse did this” or “Nurse was involved”.

[57] Moreover, the trial judge appreciated that the entire context in which the gestures were made would be before the jury, including the evidence that tied Nurse to Mr. Kumar, and the reason for Mr. Kumar’s attendance at the house on that day. The jury would also be apprised of how events transpired at the side of the road, beginning with P.C. Mitchell’s inquiry to Mr. Kumar (“who did this?”), followed by Nurse inserting himself into the situation in direct view of Mr. Kumar, and culminating in Mr. Kumar’s manifest intention to reveal something to the police and actively shaking off P.C. Mitchell’s attempts to restrain his hands in order to do so. It was an assertion by conduct. And like any assertion, verbal or otherwise, it would be up to the jury to determine its meaning. But this assertion by conduct was also hearsay. As Iacobucci J. stated at para. 162 of Starr, hearsay evidence is not defined by the nature of the evidence but rather by the use to which the evidence is sought to be put. In this case, the Crown sought to use the assertions to implicate Nurse in the murder of Mr. Kumar.
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[59] Since adopting the principled approach to hearsay, the Supreme Court has confirmed the continuing relevance of the traditional exceptions to the hearsay rule: see Starr, at paras. 202-207, per Iacobucci J.; Mapara, at para. 15; and Khelawon, at paras. 42, 60. In Khelawon, at para. 60, Charron J. held that, if a trial judge determines that evidence falls within one of the common law exceptions, this finding is “conclusive”, and the evidence is admissible.
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[61] The Supreme Court has also recognized that, in “rare cases”, evidence that would otherwise fall within a valid
hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case. In Starr, Iacobucci J. wrote, at para. 214: “However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible.” See also Mapara, at para. 15.
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[76] There can be no doubt that the trial judge correctly identified and applied the test for admissibility under this
exception. Apart from this case involving an assertion by conduct, the attending circumstances were paradigmatic of a dying declaration at common law. Mr. Kumar’s gestures were admissible under this exception.
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[77] The gestures were equally admissible under the spontaneous utterance exception to the hearsay rule, although this exception seemed to play a lessor role in the trial judge’s analysis.

[78] Like the dying declaration exception, the spontaneous utterance exception has long been recognized in
Canada. It is sometimes referred to alongside dying declarations, probably because they share certain functional
features. The trial judge noted, at para. 22 of the second ruling, that a dying declaration is an example of a spontaneous utterance. While this may not always be the case, the two exceptions sometimes overlap, as they did
in this case.
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[79] The rationale for the spontaneous utterance exception was explained in the well-known case of R. v. Khan
(1988), 42 C.C.C. (3d) 197 (Ont. C.A.), aff’d [1990] 2 S.C.R. 531, in which a medical doctor was accused of sexually assaulting a child in his care. In acquitting the accused, the trial judge excluded a statement made by the child to her mother, shortly after the alleged incident. The trial judge found that the statement lacked sufficient contemporaneity to be admitted as a spontaneous utterance.

[80] This court allowed an appeal from acquittal, partly on the basis that the trial judge had construed the spontaneous utterance exception too narrowly. Relying on Ratten v. The Queen, [1972] A.C. 378 (P.C.), Robins J.A. described the exception in the following way, at p. 207:
…a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added.]