La res gestae et le traitement de l'appel 911

R. v. Mullin, 2019 ONCA 890

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[40]         If used for the truth of the declarant’s (Ms. Brent’s) statements made during the call, the 911 recording was hearsay. It was an out of court statement being admitted for the purpose of establishing that the appellant had said, among other things, that he had “knocked [Ms. Martin] out”.

[41]         The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a “statement relating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition”: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a statement to be admissible, “[t]he stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent”: R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff’d 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Nurse, 2019 ONCA 260, at paras. 77-82; Ratten v. The Queen, [1972] A.C. 378 (P.C.).

[42]         Here, the threshold for admissibility as res gestae was met as the 911 call was made soon after Ms. Brent’s conversation with the appellant, while the stress of the event was ongoing: see e.g., R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 182 C.C.C. (3d) 393 (Ont. C.A.), at paras. 89-92, leave to appeal refused, [2004] S.C.C.A. No. 225. This was evident in the declarant’s voice and conduct on the call, in which she was highly excited and anxious to get medical assistance for her friend. These circumstances enhanced the reliability of the evidence. The hearsay dangers were also significantly reduced because the declarant was in the witness box, the recorded call was being played to her, and she could be cross-examined concerning what she had said.