R. v Bottomley, 2023 BCSC 696
[10] In Powers, Justice Griffin (as she then was) helpfully canvassed the law on the admissibility of 911 calls. Griffin J. explained that there are several grounds for admitting a 911 call made either during or close in time to the unfolding of an event (at para. 5):
1. First, it is admissible as a spontaneous, contemporaneous statement under the traditional res gestae exception to the inadmissibility of hearsay: see R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (O.N. C.A.) at p. 207, aff’d on other grounds 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; and R. v. Rahmanzadeh, [2005] O.J. No. 925 (O.N. S.C.) at para.10.
2. Second, to the extent the accused’s position in the case suggested immediately after the incident or at trial a complainant fabricated her version of events, the 911 statement is admissible to rebut this allegation: see R. v. Stapleton, 2003 BCCA 444.
3. Third, it is admissible under the principled approach to the admissibility of hearsay statements on the basis that it meets the twin tests of necessity and reliability: see R. v. Khelawon, 2006 SCC 57 at para. 2.
4. Fourth, it is admissible for the purposes of providing narrative context to assist the trier of fact in the assessment of truthfulness or credibility: see R. v. Dinardo, 2008 SCC 24 at para. 37.
[11] If a 911 call is admitted as part of the narrative, the trier of fact is not entitled to infer a witness’ credibility or corroborate their evidence from the repetition of the prior statement. Instead, they may rely on the circumstances surrounding the making of the prior statement, including the sequence and timing of events or the emotional state of the declarant at the time of the utterance, to draw inferences about the credibility of the witness’ in-court testimony. See R. v. Himpfen, 2018 BCSC 2584 at paras. 351–352, citing R. v. Khan, 2017 ONCA 114 at para. 44 and R. v. Gill, 2018 BCCA 275 at para. 85.
[12] For instance, in Powers the accused was charged, inter alia, with breaking and entering into the home of his ex-spouse and her current partner. The accused’s former spouse called 911 while the alleged crime was happening. The main issue at trial was whether the accused entered the house with a gun.
[13] The defence in Powers relied on Hamilton to argue that, as in Hamilton, the prejudicial effect of the 911 call outweighed its probative value. Griffin J. disagreed, in part finding that the call’s probative value lay in its contribution to the narrative context of the case. As stated in Powers:
[8] The fact that Ms. Cunningham will be a witness does not mean that the evidence is irrelevant. The court cannot expect to receive evidence of the same quality as the 911 call simply by having Ms. Cunningham testify. The 911 recording is the best evidence of Ms. Cunningham’s emotional state at the very time of the incident. The chance of concoction is reduced by the contemporaneous nature of the call plus the fact that it was made to a public authority for which there could be serious consequences if it was made falsely. …
[9] I find that the recording of the 911 call is relevant to show Ms. Cunningham’s demeanour and emotional state and the narrative context of events as they unfolded. I disagree with the defence that these things are not relevant.
Aucun commentaire:
Publier un commentaire