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.
A young girl from China is eagerly awaiting test results of genetic testing that could mean that she is entitled to inherit her biological father’s $50 million fortune.
Gang Yuan, whom the child’s mother states is her biological father, was recently murdered in the Vancouver area. The mother of his alleged biological daughter had a short-term romantic relationship with Gang, who was apparently aware that a baby girl had resulted.
Under the BC Wills, Estates and Succession Act, as the only child of Gang, the young girl in China would be the sole beneficiary of Gang’s estate, as he did not leave a valid Last Will and Testament and was unmarried at the time of his death. In Ontario, the Succession Law Reform Act similarly provides that, if a parent dies intestate and is survived by no married spouse and only one child, that child will inherit the parent’s entire estate.
There has been some resistance to the genetic testing by Gang’s other family members, who wanted to have his body cremated. However, just over two weeks ago, the British Columbia Supreme Court ordered DNA testing of Gang’s remains, which were chopped into more than 100 pieces.
Last year, Ian Hull and I co-authored a paper about fertility law from an estates perspective. An interesting point that we considered was whether the same conclusion as may be reached in Vancouver could be drawn when a sperm or egg donor becomes a biological parent of a child with whom he/she either may or may not maintain a relationship, in the instances of intestacy or class gifts. The law remains unclear on this point, but will likely develop with increasing rates of infertility and use of donor genetic materials.
The results of the genetic testing with respect to the beneficiary of Gang Yan’s estate are scheduled to be released within the month.
Have a great long weekend!
Today on Hull on Estates, Paul Trudelle and Moira Visoiu discuss the issue of murder and how that impacts the devolution of estates. Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog page.
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