La mise en preuve d'un appel 911

R v Sylvain, 2014 ABCA 153

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Hearsay and Res Gestae

 

[28]           The defence position is that the 911 call would potentially be inadmissible as hearsay, or alternatively because it is a prior consistent statement. The Crown contends that the 911 call was properly admissible as part of the res gestae and that the findings of fact made by the trial judge confirm that the evidence would have been admitted had a voir dire been requested. In particular, the Crown argues that the stress and immediacy of the ongoing sexual assault brings the 911 call within the res gestae exception.

 

[29]           While admitting the 911 call without a voir dire or at least some discussion on its admissibility and the proper use that could be made of it was unfortunate, defence counsel did not object to the admission of the 911 tape, and effectively waived any voir dire on those issues. Defence counsel’s decision not to object to admission, and her subsequent use of the 911 call in cross-examination, are relevant considerations in the disposition of this appeal: R v SGT, 2010 SCC 20 at paras 35-37, [2010] 1 SCR 688.

 

[30]           The starting point is this. As a general principle, res gestae statements are admissible as an exception to the hearsay rule: R v Khan (1988), 1988 CanLII 7106 (ON CA), 42 CCC (3d) 197, 27 OAC 142 at para 21 (Ont CA) [Khan]; R v Ratten, [1972] AC 378 at 389-391 (PC). Res gestae as a category has been criticized as being an unhelpful generality that actually encompasses several discrete exceptions to the hearsay rule: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Toronto: Irwin Law, 2011) [Paciocco and Stuesser] at 173. That said, the particular exception involved here relates to “excited utterances” as explained by Paciocco and Stuesser, supra at 177:

 

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 caused by the event or condition.

 

[31]           The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction: see R v Klippenstein (1981), 1981 ABCA 14 (CanLII), 26 AR 568 at para 17, 57 CCC (2d) 393 (Alta CA); R v Clark (1983), 1983 CanLII 1805 (ON CA), 42 OR (2d) 609 at 623, 7 CCC (3d) 46 (Ont CA); R v Slugoski (1985), 1985 CanLII 631 (BC CA), 17 CCC (3d) 212 at 227, 43 CR (3d) 369 (BCCA). To avoid the prospect of fabrication, the statement should be reasonably contemporaneous with the alleged occurrence. However, exact contemporaneity with the event is not required: Clark, supra at 623; Khan, supra at para 25; R v Dakin (1995), 1995 CanLII 1106 (ON CA), 80 OAC 253 at para 20, 1995 CarswellOnt 4827 (CA).

 

[32]           The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule: R v Mackenzie, 2011 ONSC 6770 at para 10, 2011 CarswellOnt 12578. The reliability of “excited utterances” comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the “excited utterances” exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.  

 

[33]           As for necessity, where, for some reason, the person making the 911 call is unable to testify, then the necessity branch of the test is clearly met: R v Nicholas (2004), 2004 CanLII 13008 (ON CA), 184 OAC 139 at paras 90-92, 70 OR (3d) 1 (CA). Where, as here, the caller did testify, the objection to hearsay statements arising from the absence of an opportunity to cross-examine is negated. More fundamentally though, the “excited utterances” exception to the hearsay rule does not arguably contain a necessity requirement. The policy underlying the necessity requirement is rooted in the “best evidence” proposition. Typically, that will be in-court testimony. But as pointed out by Justice David Paciocco in “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17:2 Can Crim L Rev 181 [Paciocco] at 192-193:

 

... [T]he “necessity” component performs a “best evidence” function. It exists to ensure that if it is possible to present “better evidence” in the form of in-court testimony, parties should not be permitted to resort to hearsay proof...

 

                        ...

 

The res gestae exceptions do not have a necessity requirement ... In-court testimony may not be better evidence than “excited utterances” because in-court testimony is not uttered in the pressure of the moment before an opportunity to concoct has arisen ...

 

[34]           A review of the case law confirms that 911 calls have often been admitted under the res gestae exception to hearsay: R v Villeda, 2011 ABCA 85 at para 22, 502 AR 83; Nicholas, supra at para 89; R v Hamilton, 2011 NSSC 305 at para 22, 284 CCC (3d) 386; R v Khan, 2010 ONCJ 580 at para 22, 2010 CarswellOnt 9254; R v Dessouza, 2012 ONSC 210 at para 30, 2012 CarswellOnt 980; R v Vukaj, 2012 BCSC 1396 at para 100, 2012 CarswellBC 2975; R v Freitas, 2010 ONSC 2031 at para 69, 2010 CarswellOnt 2811; R v Rahmanzadeh, 2005 CarswellOnt 944 at para 10; R v Byrnes, 2012 ONSC 2090 at para 26, 2012 CarswellOnt 4003. In today’s information technology world, a 911 call in the middle of a crime is akin to a cry for help heard by someone nearby. In these circumstances, the someone nearby happens to be the 911 operator.