Court File and Parties

Date: August 24, 2021 Information No.: 20-2191

Ontario Court of Justice

Between:

Her Majesty The Queen

— And —

Lowell Arnold Campbell

Before: Justice R. Marion

Counsel: Iain Skelton, for the Crown Laura Joy, for the Accused

Matter heard: June 10, 2021

MARION J.:

RULING ON A VOIR DIRE TO ADMIT UTTERANCES ON A 911 CALL

[1] Lowell Campbell is charged with being unlawfully in a dwelling with intent to commit an indictable offence contrary to s. 349(1) of the Criminal Code.

[2] The offence relates to Mr. Campbell’s presence in Unit 1 at 47 Church Street, in the City of Windsor, on November 11th, 2020.

[3] The Crown relies on the evidence of a 911 call made by the complainant, Pierre Lefebvre, who died subsequent to the alleged offence and prior to trial by causes unrelated to the matter before the Court.

[4] A voir dire was held to determine the admissibility of the utterances made by Mr. Lefebvre during the 911 call made immediately prior to police arrival. The Crown submits that the utterances are admissible pursuant to the common law exception to the hearsay rule of res gestae.

[5] It was agreed that the voir dire would proceed in a blended fashion with the trial evidence called by the Crown.

[6] The evidence heard from the co-owner of the property, Mr. Mayuresan Thavarajah, as well as lease agreements reflect that Mr. Lefebvre was a tenant of Room 2 in Unit 1. He also confirmed that Mr. Campbell was a squatter and had no legal right to occupy the property.

[7] The multiple unit building at 47 Church Street has 4 residential units. Mr. Lefebvre was residing at Unit 1 which was comprised of a private room and a common area, kitchen and washroom shared with the occupant of Room 1, Catherine Mahon. Mr. Campbell was a squatter in the building, however, it is uncertain which unit he was habitually occupying. Nor is there any evidence as to when Mr. Campbell entered Unit 1, by what means he did so or if he was invited to enter the unit.

[8] The Defence called no evidence on the voir dire. The Crown advised that it was calling no further evidence at trial. The Defence has reserved the right to call evidence following my ruling on the voir dire.

[9] The Crown is requesting that the 911 recording in its entirety be admitted for the truth of its contents, with the exception of any utterances made which constitute evidence of bad character, which the Crown seeks to have admitted as part of the narrative and as evidence of the state of mind of the complainant.

[10] There was no written Application filed detailing the evidence that the Crown was asking to have admitted as an exception to the hearsay rule. There was also no transcript provided of the 911 call. On the basis of Defence counsel’s objection, I advised that I would be prepared to adjourn the matter but counsel for Mr. Campbell elected to proceed. I heard the entirety of the recording and it was filed as a lettered exhibit subject to my ruling.

[11] Some segments of the 911 call are indiscernible. The Crown asserts that there is some dispute between the parties with respect to what exactly was said during the 911 call and that it will be for the Court to decide exactly what is said during the disputed portions.

[12] The voice of the caller is that of a male who has a French accent. He identifies himself as “Pierre,” an occupant of Unit 1, Room 2. I am satisfied that the caller was the deceased, Pierre Lefebvre. Mr. Lefebvre is relating to the 911 operator information he is perceiving while in his room behind a locked closed door. He was located by police in Room 2 of Unit 1.

[13] The significant parts of the 911 call which I could discern are as follows:

• Mr. Lefebvre states: “There is squatter where I live. Someone wants to get in my room. He doesn’t like me. He wants to kill me whatever that is.”
• Ms. Tone asks if he knows this person. The male caller identifies the person as “Lowell.” Ms. Tone asks the caller to describe Lowell, and is told by the caller that he is a “black guy, well built, he’s dangerous, he’s full of tattoos.”
• The operator asks: “Can’t you see him?” He answers: “He bugged me all last night knocking on my door.”
• Ms. Tone asks the caller if Lowell thinks there’s something in the caller’s room that he needs to have, to which the caller states “no harm me too yeah.”
• A person can be heard yelling in the background, and Ms. Tone asks the caller what the person is saying. The caller states “Ah, Pierre come here. You’re dead. I know it’s words, but you never know with him….”
• Ms. Tone asks the caller if he’s seen any weapons on Lowell, and the caller responds that he has not seen any weapons.
• Ms. Tone asks the caller for his name, to which the caller responds “Pierre.”
• The yelling continues, and the caller states “there he is, come fast, come fast, he’s at the door.”
• The caller begins to breathe heavily and whispers “I’m scared okay. I am scared.” Ms. Tone tells the caller that they are on the way, at which time the caller says: “(t)hank you. He’s mad.”
• The caller tells Ms. Tone that his heart is beating and that he thinks he’s going to have a heart attack.
• Ms. Tone asks whether the caller is in an apartment, to which the caller states “the bottom stairs.” The caller is asked if he means the basement, and the caller responds “bottom, yes.”
• The caller tells Ms. Tone that Lowell is trying to block the door and asks for them to “go fast.”
• A voice is heard yelling “Pierre, I need you, come help with the water.”
• Ms. Tone asks the caller if the stairs to get to him are at the back or the front, and the caller responds “the front.” Ms. Tone asks if they go in the front door and then go down, to which the caller answers “yeah.”
• Ms. Tone asks the caller if Lowell is still in the house, to which he responds “(h)e’s mad. Oh yeah. He’s raving mad.”
• Ms. Tone asks if the door to get in is locked, to which the caller states there may be a post that blocks the door and that they may have to kick in the door. Ms. Tone asks who is going to have to kick in the door, to which the caller states “Lowell, because he blocks the door.”
• The operator informs Pierre “we’re talking with the guy.” Pierre answers “I can’t hear you. The operator repeats “we’re talking with…”. Pierre states “I don’t understand, you have to kick in the door.”
• The caller states to Ms. Tone “I’m not kidding, I’m not kidding. My life is in jeopardy there. The guy’s nuts. You’re talking too fast for me. I’m deaf and I’m French.”
• Ms. Tone advises that police are talking to Lowell and attempts to convince the caller to come out to speak with them. The caller states “(n)o. Can they come and talk to me when I’m safe right now?”
• Ms. Tone asks where the caller is, to which the caller states “unit 2. Not unit 2, room 2.”
• A knocking noise can be heard in the background. The caller states “I think they’re round front from my door. Can you ask them if they’re in front of my door?”

[14] Upon arrival, the officers attempted to gain entry to the front door of the building leading to the basement where Unit 1 was located, but they could not open it. Consequently, PC Perreault was required to kick in the door.

[15] PC William Leardi walked down the stairs, where he located Lowell Campbell in the common area of Unit 1. Mr Campbell was holding a wrench.

[16] PC Leardi located Pierre Lefebvre in Room 2.

[17] Catherine Mahon was found in a fetal position in Room 1. She was not called as a witness at trial.

[18] PC Leardi conducted a safety check of the building units, but he did not find anyone else in the building.

[19] The Crown relies on the utterances of the complainant to establish the following:

1. Mr. Lefebvre refers to the accused as a squatter and this utterance is relevant to the element of the offence of being unlawfully in a dwelling (corroborating the evidence of Mr. Thavarajah); and
2. Although the offence is not particularized, the Crown submits that Mr. Lefebvre refers to the accused as being crazy and mad, yelling and making threats to kill him, which is relevant to the essential element of being in a dwelling “with intent to commit an indictable offence by way of the offences of assault (s. 266), uttering threats to cause death (s. 264.1(1)), mischief to the lawful enjoyment of property (s. 430(1)(d)).”

The Law Regarding the Traditional Exception of Res Gestae

[20] The utterances of Pierre Lefebvre on the 911 recording are hearsay and are, therefore, presumptively inadmissible. In order for these utterances to be admitted for the truth of their contents, the Crown must demonstrate that they fall within one of the traditional exceptions to the hearsay rule or are admissible under the principled approach. In the present case, the Crown seeks to have these utterances admitted under the traditional exception of res gestae.

[21] Despite the advent of the principled approach to hearsay, the Supreme Court has confirmed that the traditional exceptions to the hearsay rule continue to apply. The general framework governing the admissibility of hearsay evidence was articulated in R. v. Mapara, 2005 SCC 23: [1]

“15 The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:

a. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

b. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

c. In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

d. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.”

[22] In order for an utterance to fall within the res gestae exception, the party seeking to have it admitted must meet a number of criteria. These criteria were recently articulated in R. v. Smart, 2021 ONSC 2825 [2] by Fowler Byrne J. as follows:

“18 Pursuant to R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 77-88, and R. v. Nicholas (2004), 70 O.R. (3d) 1 (C.A.), at paras. 88-89, leave to appeal refused, [2004] S.C.C.A. No. 225 (S.C.C.), the excited utterance exception will permit evidence that is otherwise inadmissible hearsay to be admitted if the Crown can show the following, on the balance of probabilities:

a. there is a startling occasion;

b. there is an utterance or statement made before there is time to fabricate;

c. the utterance must relate to the startling occasion; and

d. the declarant must personally observe the matter of which they speak.”

[23] Under the principled approach introduced in R. v. Khan [3] and subsequent jurisprudence, the Court is directed to ascertain the necessity of the evidence. In this case, necessity is conceded as the declarant is deceased. The Court must also determine whether the evidence meets threshold reliability. Where a traditional exception is found to apply, it is only in “rare cases that an out of court statement would be excluded because it fails the test of necessity and reliability under the principled approach.” [4]

[24] In R. v. Khelawon, 2006 SCC 57 [5], the Supreme Court of Canada set out two circumstances where the test of reliability can be met as follows:

“1. Where the circumstances surrounding the making of the statement give it a mark of reliability; and

2. Where the accuracy of the statement can be tested by other evidence such as external factors.”

Application of the Law

[25] In R. v. Andrews [6], it was suggested that “the primary question which the judge must ask himself when considering the admission of evidence of this nature is – “can the possibility of concoction or distortion be disregarded?”

[26] My response to that question, in the case at bar, is an emphatic “No.”

[27] What is required is a functional case-by-case examination of the circumstances surrounding the making of the statement. The circumstantial guarantee of trustworthiness comes from the declarant being under such stress or pressure from the triggering event that the possibility of concoction or distortion when making the statement can be disregarded. [7]

[28] I conclude that the 911 call does not fall within the res gestae exception to the hearsay rule. In addition, it does not meet the standard of threshold reliability under the principled approach.

[29] The evidence of the 911 call is not an adequate substitute for evidence presented through witnesses, under oath or affirmation and subject to the scrutiny of contemporaneous cross-examination.” [8]

[30] The 911 call is being relied upon not just to corroborate Mr. Campbell being unlawfully in the residence, but as the only proof of Mr. Campbell being in Unit 1 to commit an indictable offence.

[31] One of the criteria set out in Smart [9] is that “the declarant must personally observe the matter of which they speak.” Mr. Lefebvre does not observe Mr. Campbell because he is in his room behind a locked closed door. A person can observe comments or remarks being made by being present when they are made. Observing a person make utterances assists the declarant in creating context to words spoken.

[32] It is difficult to establish the context of Mr. Campbell’s yelling while in Unit 1. The person yelling, presumably Mr. Campbell, is heard at one point saying he needs help with the water and he is found by police in Unit 1 with a wrench in his hand.

[33] There is opportunity to distort as Mr. Lefebvre is relaying his fears based on what he hears. He tells the operator that she speaks too fast for him and says, “I’m deaf and French.” There are times when he did not hear or understand properly the operator’s question or advice. He displayed confusion and a high state of anxiety. His state of anxiety could arguably be viewed as bolstering the guarantee of trustworthiness, however, where he is at times confused, not responsive to the operator’s enquiries and not understanding her clear and calm communication, it is equally possible that anxiety is contributing to an inaccurate assessment of the incident.

[34] For the reasons given, the Crown’s Application to admit the utterances of Pierre Lefebvre that were captured in the 911 call is dismissed.

Released: August 24, 2021

Justice Ronald Marion

Footnotes

[1] R. v. Mapara, 2005 SCC 23, at para. 15.

[2] R. v. Smart, 2021 ONSC 2825, at para. 18.

[3] R. v. Khan, [1988] OJ No. 578 (Ont CA).

[4] Mapara, at para. 15.

[5] R. v. Khelawon, 2006 SCC 57.

[6] R. v. Andrews, [1987] 1 A.C. 281, at 300-1

[7] The Law of Evidence (2015) 7th Edition David M. Paciocco and Lee Stuesser

[8] Khelawon, at para. 76.

[9] Smart, supra