[15] The complainant testified that on the night in question she called 911 and reported that there was someone in her apartment who would not leave and who had threatened her: reasons at para. 14. The police responded to this complaint. The trial judge dealt with this evidence as follows:
55 D.L. testified that she phoned the police from the lobby. She testified that she told the police in that call that there was somebody in her place who would not leave, and who had threatened her (page 25, ll. 13-28). Cst. Schell testified that he was dispatched to a trouble with person call where "a female invited a male to her place and he wouldn't leave." This evidence confirms that D.L. made such a phone call - as she testified (page 64, ll. 22-25). (Emphasis added).
As can be seen, the trial judge carefully noted that this was only confirming evidence that the “call was made”, not that the complaint to the police was true: R. v Matchett, 2018 BCCA 117 at para. 39. Further, the contents of the call did not include any recitation of the facts underlying the ultimate convictions for sexual assault and unlawful confinement.
[16] That, however, does not end the analysis. After she made the 911 call the complainant returned to her apartment to get her cat, and testified that the appellant subsequently refused to let her leave. In a panic, she jumped out of the fourth story window, suffering serious injuries as a result. It is not disputed that the complainant did jump out of the fourth story window, which is strongly confirmatory of something happening to her in the apartment. While the appellant did not testify, his counsel put it to the complainant that the earlier 911 call was contrived:
56 D.L. testified that she jumped because she was terrified, and that she just wanted to get out. Prior to jumping she had a knife held to her throat, and her couch and wall were damaged with that same knife. After landing and breaking her heel and her leg, she is attended to by Mr. Mansour. He testified that D.L. said that she jumped because someone was trying to stab her. He noted her to be scared and tearful. It is the Defence counsel's submission that D.L. made the call to police because she was afraid that her use of cocaine with Mr. Demedeiros might be discovered, and that consequently her job as a corrections officer was in jeopardy. Defence counsel put it to D.L. that she made the 911 call first so as to appear the "victim." (Emphasis added)
57 With respect, this makes no sense. First, it is not clear that there was any cocaine consumption in the apartment - D.L.'s evidence on this point is far from certain. Secondly, although there is ample evidence in the photographs of copious alcohol consumption, there is none of cocaine use. The state of the apartment - a mess - renders laughable the suggestion that they cleaned up or been discrete about any evidence of cocaine use. Furthermore, how her use of cocaine at the Evergreen Trailer Park might be revealed to her employer, or the authorities, such that it would justify a call to the police or her flight out the window is incomprehensible to me.
The defence suggestion, therefore, was that the complainant left the apartment to make a contrived 911 call, then returned to the apartment, after which she jumped out of a fourth story window. The conclusion of the trial judge that this was a completely unbelievable scenario is entirely reasonable.
[17] When defence counsel made the suggestion that the 911 call was contrived, that injected an allegation of “fabrication” into the hearsay analysis. While this was not a traditional allegation of “recent fabrication” that can render prior consistent statements admissible, it engaged similar issues. If nothing else, it justified the trial judge discussing the 911 call and the complaint to the neighbour at greater length than might otherwise have been warranted. The analysis of the trial judge was directly responsive to a defence argument, not to the confirmatory weight of this evidence: R. v Cain, 2018 SCC 20 at para. 2, affirming R. v Cain, 2017 NSCA 96 at paras. 34-42.
[18] In Sylvain the complainant made a 911 call alleging sexual assault. The appellant in that case testified that he had agreed to pay the complainant for sex, and that she threatened to report a sexual assault if he did not pay her more. Sylvain confirmed the general rule that an admissible res gestae statement cannot be used as corroboration, but quoted D. M. Paciocco, "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013) 17:2 Can Crim L Rev 181 at p. 194:
. . . Similarly, the fact that the witness made the same claim by way of an excited utterance in the heat of the moment and before any opportunity to concoct could reasonably have arisen provides additional reasons for rationally choosing to believe the witness's in-court testimony containing the same utterance.
. . . While there is no weight in the simple fact of repetition and no independent corroboration in repetition, the circumstances in which the hearsay statement was made - its indicia of reliability - can and should add weight to the correlative in-court testimony.
Once the allegation was made that the 911 call was contrived, Sylvain held that it had probative value as a res gestae statement, even if it was not directly capable of being confirmatory evidence:
89 The 911 call is admissible as a res gestae statement for the truth of its contents (even though it is hearsay and a prior consistent statement) for some purposes, but not generally as corroboration (because as a prior consistent statement the evidence is not made more reliable by repetition). The 911 call was circumstantial evidence of the events surrounding the assault itself, and it was also evidence of the state of mind and the demeanour of the complainant, admissible under the res gestae exception. While the use of this prior consistent statement as corroboration of the complainant's evidence was unfortunate, at least without reflection on the weight it deserved for that purpose, the circumstances in which the 911 call was made discount any opportunity for concoction. As Paciocco notes, in the circumstances the 911 call does have probative value beyond mere repetition. Further, the suggestion that the 911 call might also serve as corroboration was not an essential part of the trial judge's reasoning. In all the circumstances just summarized, any shortcomings in handling this evidence do not disclose any reviewable error.
Given the similar defence position in this prosecution that the complainant’s 911 call was contrived, the trial judge’s limited use of it does not disclose any reviewable error.
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