Abby Avery

The accused was charged with attempted murder, arson causing bodily harm, aggravated assault, failing to stop for police, and arson of a dwelling after dousing individuals with gasoline during a violent altercation.

The court rejected the accused’s testimony under the R. v. W. (D.) credibility framework and accepted the eyewitness evidence that the accused intentionally poured gasoline on the complainant and another individual.

However, the court held the Crown had not proven beyond a reasonable doubt that the accused intentionally ignited the complainant, noting multiple possible ignition sources and uncertainty about how the fire began.

The accused was acquitted of attempted murder but convicted of arson causing bodily harm, aggravated assault, failing to stop for police, and arson of a dwelling, as well as the included offence of simple assault relating to the second complainant.

During a criminal trial involving allegations of attempted murder, arson causing bodily harm, aggravated assault, and flight from police, the Crown sought to admit a statement made by the complainant identifying the accused shortly after being burned in a house fire.

The statement was relayed through a neighbour and tendered under the res gestae or spontaneous utterance exception to the hearsay rule.

The defence challenged admissibility based on the complainant’s intoxication, inconsistencies in witness recollection, and the Crown’s failure to comply with procedural rules governing pre-trial applications.

The court held the statement was sufficiently reliable and contemporaneous with the traumatic event to meet the res gestae exception, and that the procedural non-compliance caused no prejudice to the defence.

Leave was granted to hear the late application and the hearsay statement was admitted, though the court cautioned that its weight might be reduced due to the complainant’s intoxication.