In the Ontario Court of Appeal decision of R. v. Nurse, 2019 ONCA 260, the gestures of a dying man were relied upon to support a murder conviction.

In that case, N owed rent money to his landlord, K. Rather than pay, N lured K to his home, where K was repeatedly and viciously stabbed.

N denied that he was involved in the stabbing, and claimed that another unknown person had stabbed K.

While K was being treated by police on the scene, N approached K and the police. K, who was in obvious and extreme distress, pointed to his stomach stab wounds, and then pointed to N.

The trial judge found that the gesture fell within the “dying declaration” exception to the hearsay rule. The Court of Appeal agreed. They also agreed that evidence of the gesture was admissible under the principled approach to hearsay.

A dying declaration is usually a verbal statement or utterance. However, a gesture can also convey meaning, and may be considered to be a statement or utterance to which the dying declaration exception to the hearsay rule applies.

With respect to the dying declaration exception to the hearsay rule, the Court of Appeal said that the exception could be traced back to the 1789 decision of The King v. Woodcock. There, the court stated:

Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.

The trial judge was therefore correct in instructing the jury to consider the evidence of whether K was pointing to N, and if he was, what he meant by this.

Another ground of appeal was with respect to incriminating messages retrieved from N’s cell phone. When N was first arrested, his phone was seized. An analysis of the data on the phone revealed only limited interaction between N and his co-accused. However, about a year later, the analysis software was updated, and a further analysis of the phone revealed the plan to kill K. N argued that the second analysis was a fresh search that was not authorized by the first search warrant. This argument was rejected.

Have a great weekend.

Paul Trudelle