Court Information
Ontario Court of Justice
Date: May 27, 2019
Court File No.: Central West 18-14987
Parties
Between:
Her Majesty the Queen
— And —
Martelle Francis
Judicial Officer and Counsel
Before: Justice D.F. McLeod
Heard on: March 28, 29, 2019
Reasons for Judgment released on: May 27, 2019
Counsel:
- M. Morris — counsel for the Crown
- A. Abbey — counsel for the defendant M. Francis
Judgment
D.F. McLeod J.:
Introduction
[1] Criminal allegations of domestic violence generally have an emotional and violent undercurrent in that in many instances the parties involved are in toxic relationships which can cause one party or the other to escalate a normal issue to proportions that evoke fear and bodily injury.
[2] It is also common in the criminal context to have to manage the court process with respect to reluctant witnesses/complainants. The judicial process continues to wrestle with ensuring domestic matters follow the prescribed judicial process, yet still ensuring that trial fairness as a notion is not eroded.
[3] Mr. Martelle Francis is charged with an assault perpetrated on his girlfriend. The Crown contends that although the complainant is not present in court to testify during the trial proper there is sufficient alternate and reliable evidence for this court to find beyond a reasonable doubt that Mr. Francis committed the offence.
[4] The defence submits that to include the evidence of a complainant who is not present during the trial process leaves the defence at a significant disadvantage which in turn impacts on the defendant's ability to make reasonable answer and defence to the allegations before the court. This belief is further complicated by the lack of evidence that deals with the legal concept of necessity, which is essential to the analysis of the potential admissibility of any hearsay statement.
I. Relevant Evidence
Evidence of Claudio Rezzi
[5] PC Rezzi was the investigating officer who attended the scene of the alleged domestic incident. Upon arrival at the building complex PC Rezzi made his way to apartment 1712 and began to speak with the complainant as well as the female resident.
[6] PC Rezzi was advised upon arrival from the homeowner that the female complainant presented at the front of her apartment, arriving with her two children while crying and distraught.
[7] PC Rezzi was led to a bedroom in the home to be introduced to the complainant Santasha Wright. When the officer arrived in the bedroom Ms. Wright was on the phone and was noticeably shaken.
[8] Ms. Wright advised the officer that she was pushed to the ground and punched in the nose. She indicated to the officer that there was soreness to her nose. Ms. Wright went on further to say that after the incident she left with her children.
[9] Ms. Wright stated to the officer that she did not have access to a phone so after the incident she left her apartment for fear that Mr. Francis would return. She then made her way to the home of Penny Heron, a woman that she did not know prior and was able to use the phone at that time.
[10] PC Rezzi was also able to attain a phone number associated to Mr. Francis and when the number was called, the individual who answered the phone confirmed he was Mr. Francis and denied any involvement with respect to an assault on Ms. Wright.
[11] When asked about the level of investigation that was done with respect to the incident PC Rezzi indicated the following:
- (i) He had never met or spoken to the complainant prior to this incident;
- (ii) No forensics were done with respect to the home of the alleged incident;
- (iii) No inquiry was made to determine if there was any surveillance footage from the apartment acquired by the police service;
- (iv) No follow up was done with respect to the complainant;
- (v) The complainant's clothing was not disheveled or soiled in any way;
- (vi) No notation was made with respect to if the complainant was wearing any footwear when Mr. Francis arrived at the home;
- (vii) Police notes made of the statement from the complainant were not written verbatim;
- (viii) No police investigation was done to confirm if the complainant had a cell phone on her person.
Evidence of Penny Heron
[12] Ms. Heron was home when she heard a knock at her apartment door. When she answered she was greeted by an emotional woman who was standing outside with two children. Ms. Heron did not know this woman but felt compelled to invite her into her home. Ms. Heron then directed Ms. Wright to a bedroom in the apartment and from there she was able to make a phone call to 911.
[13] Ms. Heron testified that she did not hear the call in its entirety but was able to hear portions of the conversation with the 911 operator.
[14] The Crown, Mr. Morris, elicited the following information from Ms. Heron as it relates to the call between Ms. Wright and the 911 operator:
- (i) Ms. Wright advised the operator that she was not in her home but another apartment in the building;
- (ii) Ms. Wright indicated where she lived;
- (iii) She advised the operator that her boyfriend was still in the building and that her son was also possibly with him;
- (iv) She was able to describe what clothing her 5 year old son was wearing;
- (v) She advised the 911 operator that Mr. Francis smoked marijuana, that she is pretty sure he does not own a gun and was able to provide them with his date of birth and name;
- (vi) Ms. Wright also advised them that Mr. Francis was charged prior with an assault, however she did not attend the trial on that occasion as she was afraid for her life;
- (vii) She was also able to advise the 911 operator that both she and Mr. Francis had children in common.
[15] Ms. Heron testified that at no time did Ms. Wright indicate that her boyfriend punched her and threw her down, nor does she recall seeing any injuries on Ms. Wright.
II. 911 Tape
[16] The 911 tape was played during these proceedings and was entered as an exhibit.
[17] The contents of the 911 tape are fairly graphic and informed this court of the following:
- (i) The complainant left the home she was staying at as a result of the alleged assault and brought two of her children with her. She left their 5 year old child behind in the apartment;
- (ii) The complainant indicated that she knocked on the door of a complete stranger and called 911 from the apartment she entered;
- (iii) The complainant stated that she was afraid for her life;
- (iv) The complainant also indicated that she was punched in her face, threatened, and choked at the hands of Mr. Francis; and
- (v) The complainant's emotional state.
III. The Law
Argument as to Res Gestae
[18] The first question to be considered is whether the phone call to the 911 operator fell within the traditional exception to the hearsay rule as res gestae. In R. v. G.F., [1999] O.J. No. 143 (C.A.), the Court quoted with approval its prior judgment in R. v. Clark (1983), 7 C.C.C. (3d) 46. Res gestae was defined as a "spontaneous exclamation". The Court adopted Professor Wigmore's explanation for the hearsay exception of res gestae:
This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts [R. v. Harbin, [2008] O.J. No. 2158 p. 13] [emphasis added]
[19] In R. v. Khan (1988), 27 O.A.C. 142 (C.A.), the Court of Appeal provided a helpful definition of a res gestae statement:
[A] The Court of Appeal provided further context to the notion of res gestae and suggested the 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. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [emphasis added]
[20] For a statement to be classified as res gestae three criteria must be met: R. v. Hall, 2011 ONSC 5628, [2011] O.J. No. 5109 – p.17:
- The statement was made under the ongoing stress or pressure of a dramatic or startling act or event;
- The statement relates to the occasion that caused the stress or pressure; and
- There is little if no possibility of concoction or fabrication.
[21] The proximity to the event need not be strictly contemporaneous to the event that caused the statement to be made in order to be classified as a res gestae statement. This point was first adopted into Ontario law in R. v. Clark (1983), 42 O.R. (2d) 609 (C.A.). In that case, the Court of Appeal accepted the reasoning of Lord Wilberforce in Ratten v. R., [1972] A.C. 378 (P.C.) at pp. 806-807, where he stated:
[T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.
[22] Excited utterances is an exception under the common law and is to be considered 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. R. v. Sylvain, 2014 ABCA 153, [2014] A.J. No. 444 p.32 [emphasis added].
Was this an utterance made in circumstances of spontaneity where there is little if no possibility of concoction or fabrication?
I. Was the statement made under the ongoing stress or pressure of a dramatic or startling act or event?
[23] When this court analyzes the 911 call it would appear that the call was made as a result of an incident that would have taken place in the apartment some time earlier. This court would even go as far as to state on a balance of probabilities that the fact that the complainant left her 5 year old son and found herself in the apartment of a complete stranger adds to the credibility of the notion that the alleged incident happened a brief period prior to the call to 911.
II. Did the statement relate to the occasion that caused the stress or pressure?
[24] It is clear from the content of the 911 call that the incident being complained about is an alleged assault perpetrated by the complainant's boyfriend on her. The call to 911 does not appear to deviate from the constant narrative that the complainant was assaulted by the defendant.
III. Was there little if no possibility of concoction or fabrication?
[25] This arm of the inquiry is where the evidence as presented is found wanting.
[26] The prosecution submits that the 911 tape as well as the unannounced drop in to the home of a stranger in the building should allow this court to glean not only the extreme emotional circumstances but also capture for the court her level of angst and fear.
[27] The above notion is not completely offside however it leaves substantial room for error and places the court in an unenviable position. Gaps in the evidence would be filled by inference garnered by a 911 tape that clearly provides one portion of a story, from an individual whose recounting of the incident has not been challenged, and her credibility has not been weighed.
[28] Ms. Heron, the independent woman whose home the complainant sought refuge, testified that amongst other things she does not recall seeing any injuries on the complainant. This is significant because the information provided to 911 by Ms. Wright suggested that she had been punched in the head and choked. What she describes is a violent incident which was the impetus for her flight from the home.
[29] When the evidence of Ms. Heron is analyzed in conjunction with the testimony of PC Rezzi, the initial officer on the scene who interacted with Ms. Wright, it possesses some challenges for this court to answer this portion of the R v. Hall test in the affirmative.
[30] Ms. Heron also testified that at no time was she told by Mr. Wright that her boyfriend punched her and threw her down.
[31] In this matter, unlike those relied upon by the Crown, the complainant never gave evidence, nor was there any explanation proffered to explain her absence. This absence left a significant evidentiary gap necessary when undergoing the res gestae analysis.
[32] I am unable to find that this was a situation of spontaneity due in large measure to the incompleteness of the record before me. In many of the cases argued by Crown counsel the court was able to assess the context based on the testimony of complainant or any other witness. Further, this court did not hear any viva voce testimony from the complainant in this matter.
[33] The courts have taken a more functional approach to the test for res gestae. I have considered the context of when the statement was made and whether there were significant intervening events relevant to the analysis. Clearly the call is emotion filled and it would appear that the complainant's reaction appears genuine. However, this court is unable to state with the requisite degree of certainty that there was no possibility of concoction or fabrication. As such, I cannot find that the call was made as a part of the res gestae.
[34] In light of the above finding I am unable to determine that the expressions heard on the 911 recording capture the true tenor of Ms. Wright's beliefs and therefore cannot receive the information as testimony to those facts.
Necessity
[35] A broad interpretation of the necessity criterion has consistently been applied in cases where the witness, though not dead, permanently ill, or disabled, was simply unable to participate in the trial process. For example, in R. v. Nicholas (2004), 182 C.C.C. (3d) 393, the necessity criterion was met as the witness was unable to testify due to the post-traumatic stress disorder she was experiencing. In R. v. Manuel, 2013 ONSC 2494, the necessity criterion was met as the witnesses, though physically available, were no longer cooperating with the police investigation and were now offside: R. v. Keir, [2013] O.J. No. 3244 – p. 10
[36] Most recently, the majority of the Supreme Court of Canada in R. v. Baldree, 2013 SCC 35, endorsed what appears to be a strict application of the necessity criterion in a 'drug buy' case, where there was no evidence that the police attempted to locate the mystery purchaser who had called in his order for drugs to the defendant's phone. In determining that the necessity criterion had not been met in that case, the Court focussed its analysis on whether the party seeking admission of the evidence made all reasonable efforts to secure the evidence. R. v. Keir, [2013] O.J. No. 3244 – p. 12 [emphasis added].
[37] 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), 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 ...
[38] In the matter currently before me no evidence had been proffered as to the whereabouts of the complainant, her physical, mental, or emotional condition to date or any steps that were undertaken by law enforcement to secure her attendance to court.
[39] The Court focussed its analysis on whether the party seeking admission of the evidence made all reasonable efforts to secure the evidence and in this scenario the Crown provided no evidence respecting unsuccessful efforts as to why Ms. Wright was not present at trial.
[40] The necessity criteria has not been met in this matter. Mr. Francis is entitled to the best evidence and should not have to resort to hearsay as proof, in light of the record as it has been presented in this matter.
Released: May 27, 2019
Signed: Justice D.F. McLeod