R v Sylvain, 2014 ABCA 153
[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.
[35] It is evident from the fact findings made by the trial judge that the 911 call properly constitutes an “excited utterance”. The defence position is that the trial judge could not reasonably find that the call was made as an excited utterance because, so the defence argument goes, it could have been made after Sylvain left. In other words, the defence submission depends on the premise that unless there is independent confirmation of the complainant’s testimony that the 911 call was made in the course of the sexual assault, her evidence on that point could not be accepted. We do not agree.
[36] It cannot be said that the trial judge erred in inferring from the content of the call and the complainant’s tone of voice that the call was made before Sylvain had subjected the complainant to anal intercourse. The trial judge listened to the 911 call. So did we. Based on what she heard and what the complainant said and her tone of voice, the trial judge was able to draw her own conclusions about the circumstances in which it was made. She specifically found that the detail of the complainant’s testimony concerning the circumstances in which the call was made was “very compelling”: AR F12/6. She implicitly found that the 911 call took place prior to the anal intercourse. In this regard, the content of the call speaks for itself. It contains no reference to the injuries that the complainant received during the anal intercourse, but rather claims only that Sylvain is about to assault the complainant.
[37] Further, the 911 call must also be viewed in its larger context. Evidence existing independent of the declaration can assist in establishing the existence of the shocking event and therefore the spontaneity of the statement: Khan, supra at para 31. Here, that independent evidence includes the following. Emergency services phoned the complainant back several times after the initial 911 call and were unable to reach her. Police picked her up on the street shortly after the assault before she was able to return home. This indicates a close temporal connection between the call that spoke of an impending attack and the anal intercourse. In addition, the complainant had been very concerned about the injuries to her anus when the police caught up with her. The police prevailed on her to come with them and she did. Expert medical evidence confirmed the complainant’s injuries were consistent with sexual assault. Finally, the complainant was found without the money that Sylvain allegedly paid her.
[39] For these reasons, we are satisfied that the 911 call would have been admitted in any event as an “excited utterance” as part of the res gestae had a voir dire been held. Thus, the failure to hold a voir dire caused no prejudice to the defence.
Use of Res Gestae Statements
[40] When considering the particular issues underlying this appeal, the ultimate issue is not whether the 911 call is admissible under the res gestae exception to the hearsay rule, as we have found, but rather the use to which it can be put once admitted. Res gestae statements are admitted for the truth of their contents: Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed (Markham: LexisNexis, 2009) at 396, 411; S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed, looseleaf (Toronto: Canada Law Book, 2013) at 11:40.50; Paciocco and Stuesser, supra at 496. Certainly, a 911 call qualifying as res gestae may be relevant to the time and place of the events, or the emotional state of those involved: Ratten, supra. To this we would add that a 911 call may also be relevant to the physical state of the person making the call. In this case, the only issue was consent, and the emotional state of the complainant, as revealed in the 911 call, was evidence on that point: Dessouza, supra at para 35. The 911 call was also evidence of the sequence of events and the physical state of the complainant at the time of the call.
[41] Whether there is a difference between “corroborative” and “confirmatory” evidence and how that affects the use to which 911 “res gestae” statements may be put are issues we need not decide. Nor need we decide whether the complainant’s 911 call, admissible for the truth of its contents under the res gestae exception to the hearsay rule, is properly characterized as an exception to the rule against prior consistent statements and if so, what, if anything, turns on that. We have not received full argument on these issues on this appeal and we decline to consider them.
[42] Even accepting for the sake of argument only that a res gestae statement is subject to the limitations that apply to exceptions to the rule against prior consistent statements, the 911 call could still be used to add weight to the complainant’s in-court testimony. That very point was made by Paciocco, supra at 194 when speaking about a witness making the same claim by way of an excited utterance as in court:
... 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. (emphasis added)
[43] In this case, at a minimum, the 911 call had probative value beyond mere repetition. It was evidence of the sequence and timing of events and both the emotional state, and physical state, of the complainant at the time of the call. The trial judge did not indicate in her reasons that she was using the 911 call as “corroborative” of the complainant’s evidence. The record reveals that the trial judge was concerned not so much with the complainant’s credibility as with her reliability and the reasons for the concern had to do with the amount of alcohol the complainant had consumed. It is important to understand how the trial judge used the evidence about the 911 call. As the trial judge said about that call: “That [the complainant] is not slurring or ... mumbling is consistent with the reliability of her testimony of the circumstances leading to the call.” It was in this limited sense therefore that the trial judge treated the 911 call as adding weight to the complainant’s in-court testimony. This she was entitled to do given what the 911 call revealed about the complainant’s emotional and physical state at the time of the 911 call. Therefore, the trial judge properly placed it on the scale in assessing the reliability of the complainant’s in-court testimony as to the circumstances leading to the call.
