Dr. John Deck

The Crown applied to admit hearsay statements from the deceased victim and the post-mortem report of an unavailable pathologist in a manslaughter trial.

The court admitted the victim's statements, finding they met the criteria for spontaneous utterances and the principled exception to the hearsay rule, with sufficient markers of threshold reliability.

However, the court excluded the pathologist's report, concluding that the inability to cross-examine the expert on his baldly stated opinion regarding the cause of death would cause significant prejudice to the accused, outweighing its probative value.

The appellant was convicted of first degree murder after the victim was found sexually assaulted and beaten to death.

On appeal, the appellant argued the trial judge erred by failing to instruct the jury that a first degree murder conviction under s. 231(5) of the Criminal Code requires the sexual assault to precede the murder.

The Court of Appeal dismissed the appeal, applying the 'single transaction' principle from Paré, holding that the exact sequence of the murder and sexual assault is immaterial provided they form a continuous sequence of events involving illegal domination.

The court also dismissed grounds of appeal relating to the trial judge's instructions on the appellant's statements, after-the-fact conduct, and identification evidence.