Court File and Parties
Ontario Court of Justice
Date: February 1, 2018
Court File No.: Halton 16-3250
Between:
Her Majesty the Queen
— and —
Joao Nunes
Before: Justice D.A. Harris
Heard on: October 10 and 11, 2017
Reasons for Ruling released on: February 1, 2018
Counsel
Christina Lynch — counsel for the Crown
Mark Miller — counsel for the defendant Joao Nunes
Ruling Re Admissibility of 911 Call
Background
[1] Joao Nunes is charged with one count of breaking and entering a dwelling house, two counts of assault and one count of threatening bodily harm, all of which are alleged to have happened on October 31, 2016 in the Town of Oakville.
[2] The break and enter offence is an indictable offence. Crown counsel elected to proceed by indictment with respect to the other charges. Mr. Nunes elected to be tried in the Ontario Court of Justice. He pled not guilty and we began the trial.
[3] So far, Renee Hamilton, Matthew Turner and Halton Regional Police Constable, Deborah Paul have testified for the Crown.
[4] During his evidence in-chief, Mr. Turner stated that he did not recall the events of October 31, 2016. More particularly, he did not recall being assaulted. He did not know who Joao Nunes was.
[5] Crown counsel then attempted to refresh his memory by asking him to read a statement he had purportedly given to the police and to listen to a recording of the 911 call which had purportedly been made by Mr. Turner. He read the statement and listened to the recording of the 911 call and told the court that neither of these refreshed his memory. He was not even certain that he was the person speaking on the 911 call, although it was quite possibly him.
[6] Crown counsel then brought an application to adduce into evidence an audio copy and a transcript of the complainant's 911 call to police.
[7] She argued that the evidence is admissible as res gestae, a spontaneous statement which is a recognized exception to hearsay. In the alternative, the Crown submits if it is not so admissible, it is admissible pursuant to a principled approach to hearsay.
[8] Counsel for Mr. Nunes argued that the Crown has failed to establish admissibility on either basis.
[9] This is my ruling on that issue, together with my reasons for the ruling.
[10] I will start by thanking Schwarzl J. whose judgment in R. v. Khan was helpful in addressing these issues.
Legal Framework
[11] A party who seeks to adduce an out-of-court statement bears the burden of proving admissibility on a balance of probabilities. Should it be admitted, it forms part of the evidentiary record to be considered by the trier of fact in ultimately assessing whether the Crown has proven guilt beyond a reasonable doubt.
[12] Even where the party has otherwise proven admissibility, the court has the discretion to exclude the evidence where its probative value is outweighed by its prejudicial effect.
[13] Crown counsel argued that the evidence is admissible in either of two ways being:
(1) as res gestae, a spontaneous statement which is a recognized exception to the hearsay rule, or
(2) pursuant to a principled approach to hearsay.
Analysis: Res Gestae Exception
[14] Crown counsel argued first that I should admit the 911 call as being part of the res gestae of this case.
[15] A 911 call may properly be described as hearsay evidence and is presumptively inadmissible unless the moving party establishes that the evidence falls within a recognized exception to hearsay such as res gestae.
[16] The res gestae exception is summarized as follows in Paciocco and Stuesser, The Law of Evidence:
"Res gestae," literally defined, means the "facts surrounding or accompanying a transaction." Unfortunately, in the words of Wigmore, the phrase is "not" only entirely useless, but even positively harmful." It is harmful because it invites tying admissibility to a "transaction," which creates an unprincipled limitation. It is useless because actually there is no specific res gestae exception; rather, the term embraces a number of distinct hearsay exceptions. These exceptions include statements of present physical condition, statements of present mental state, excited utterances, and statements of present sense impression.
The better phrase to use to encompass these exceptions is that of "spontaneous statements": The common principle underlying each of these exceptions is that reliability is founded on the spontaneous making of the statement before there is time for concoction. Necessity is based on expediency, "in the sense that there is no other equally satisfactory source of evidence either from the same person or elsewhere." Accordingly, unavailability of the declarant is not a prerequisite; the declarant may testify, and the spontaneous statement may also be admitted into evidence.
[17] The res gestae principle includes out-of-court statements made (a) very soon after an underlying event and (b) while the person making these statements is still in an obvious state of upset and trauma resulting from those events. The reliability of such statements may be satisfied when the statement was made without time to fabricate, collude, and under the ongoing stress of very recent traumatic events.
Identification of the Caller
[18] I find that Mr. Turner made the call to the police. My reasons for this are as follows.
[19] He testified that he was not sure that it was his voice on the recording but he admitted that it could be.
[20] There was evidence from both Ms. Hamilton and Constable Paul that Mr. Turner was at the scene. He had injuries consistent with those described by the caller. The caller identified himself as Matthew Turner. He provided personal information identical to personal information provided by Mr. Turner while testifying in court.
[21] Ms. Hamilton testified that Mr. Turner called 911 that night.
[22] I am also satisfied that he made the call within a very short time after the events described to the 911 operator. His call was made in the immediate aftermath of events and while emotions were running high. I find that in the circumstances, which include extreme concern about the safety of his ex-wife and their children, which can be readily heard on the 911 call, Mr. Turner was under ongoing emotional stress and had no opportunity to fabricate.
Admissibility Under Res Gestae
[23] I am satisfied on a balance of probabilities that the 911 call and its transcript are admissible under the res gestae exception to hearsay. I am satisfied that the probative value of the 911 call outweighs any prejudicial effect.
[24] In that regard, I am mindful that it is necessary to evaluate both moral prejudice and reasoning prejudice. However, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice.
[25] It is significant here that Mr. Turner was, and is available to be cross-examined and the evidence he has already given in will be taken into account in assessing the weight to be given to the 911 call at the conclusion of the trial.
Response to Defence Arguments
[26] Counsel for Mr. Turner argued that I should reject the evidence on the basis that much if not most of what was said by the caller was hearsay based on statements made by others in the vicinity of the caller.
[27] I disagree. Very few facts appear to come from other sources and these refer to peripheral facts only. In any event, counsel will still be able to argue about what weight, if any, I should give to these portions of the call.
[28] I am satisfied that the 911 call is admissible here as res gestae.
Analysis: Principled Approach to Hearsay
[29] Crown counsel argued alternatively that I should admit the 911 call pursuant to the principled approach to hearsay.
[30] There was a time when assaults that were not observed by at least one other witness could not be proven, if the complainant would not testify to the assault in court or at least adopt an earlier statement. There would be no evidence before the court and any charges would be dismissed.
[31] In R. v. Khan, the Supreme Court of Canada established a principled case-by-case exception to the hearsay rule based on necessity and reliability, allowing for out-of-court statements to be introduced for the purpose of proving the truth of their content in certain circumstances.
[32] This principled approach has been reviewed several times by the Supreme Court of Canada since then. The following extracts are taken from the reasons given by Justice Charron in R. v. Khelawon:
As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rational underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability ... the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. ...a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.
...In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible ... In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.
Necessity
[33] In this case, necessity has not been established, except with respect to the threatening charge. Ms. Hamilton was available to give evidence with respect to the other charges. On the other hand, there is no question that necessity has been established with respect to the threatening charge. Mr. Turner has insisted repeatedly that he has no memory of the events underlying the charges against Mr. Nunes. Ms. Hamilton has impaired hearing and could not hear what was said by Mr. Turner. The police have been unable to locate the one other potential witness.
[34] That does not resolve the issue however. There is still the question of reliability.
Reliability
[35] In that regard, I must keep in mind that I am not determining ultimate reliability or even the truth of the 911 call at this stage, but only threshold reliability. In this case, threshold reliability is satisfied by the following:
[36] The statement was made contemporaneously, if not simultaneously, with the events described. Mr. Turner did not have time to fabricate a story.
[37] There was no reason for Mr. Turner to fabricate. He testified in court that he did not even know Mr. Nunes.
[38] The 911 call was recorded. Accordingly, there is an accurate record of what was said and an oral record of the caller's emotional state while he was saying those things.
[39] There is some confirmatory evidence in the form of the injury to Mr. Turner seen in the photographs.
[40] There is other confirmatory evidence in the testimony of Ms. Hamilton.
[41] Mr. Turner is available to be cross-examined.
[42] Based on a principled approach to hearsay as defined by the Supreme Court, I find that with respect to the threatening charge only, the 911 call is both necessary and reliable. I also find that its probative value outweighs any prejudicial effect. With respect to the issue of prejudice, see my comments above.
Conclusion
[43] I find that the 911 call made by the complainant meets the criteria of admissibility under the res gestae exception to hearsay. If I am incorrect in this conclusion, the call is nevertheless admissible with respect to the threatening charge under a principled approach to hearsay.
[44] Therefore, the 911 recording will be made an exhibit at trial. The transcript will continue to be a lettered exhibit as an aid to the court only.
Released: February 1, 2018
Signed: Justice D.A. Harris