ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR093822
DATE: 20120109

B E T W E E N:

Her Majesty the Queen

S. Ferrone, for the Crown

• and -

Asizkpor Dessouza

E. Ghebrai

Defendants

HEARD: January 4 and 6, 2012

RULING ON ADMISSIBILITY OF 911 CALLS

Ricchetti, J.

The Application

[ 1 ] The Crown brings this application for an order admitting into evidence the complainant's emergency calls to 911 on the night of the alleged sexual assault.

The Charges

[ 2 ] Mr. Dessouza has been charged with:

a.Sexual assault on M.G. with a weapon on April 27, 1996; and

b.Uttering a death threat to M.G. on April 27, 1996.

[ 3 ] The jury trial of this matter was scheduled to commence this week. This was a pre-trial application by the Crown.

The Position of the Crown

[ 4 ] The Crown submits that the two 911 calls, made by Ms. G., connected by a brief interruption (“the 911 Calls”) are subject to the spontaneous utterance exception to hearsay rule.

[ 5 ] In the alternative, the Crown submits that the 911 Calls are admissible under the Principled Approach to the hearsay rule as the evidence is both necessary and is reliable.

The Position of the Defence

[ 6 ] The Defence submits that the 911 Calls were not contemporaneous with the alleged offences and, as such, cannot be a spontaneous utterance at law.

[ 7 ] With respect to the Principled Approach, the Defence denies that the 911 Calls are reliable because there was evidence which may have prompted the complainant to call the police first and distort or concoct her "story". Further, the Defence submits the evidence is not necessary as it is clear from the preliminary transcript that the complainant remembers the events clearly and can give the same evidence first hand.

The Evidence

[ 8 ] The Crown relied upon the 911 Calls and portions of the evidence at the preliminary hearing.

[ 9 ] Ms. G. is the complainant in this case. She was 18 years old at the time of the alleged sexual assault.

[ 10 ] The allegations are that Mr. Dessouza was Ms. G.'s landlord. She had moved in some four days earlier.

[ 11 ] In the early hours of April 27, 1996, Mr. Dessouza allegedly sexually assaulted Ms. G. in his room while holding a knife to her.

[ 12 ] After the alleged assault, Ms. G. went downstairs in the residence. Mr. Dessouza followed her and threatened her with death if she told anyone.

[ 13 ] Mr. Dessouza allegedly removed the telephone from the wall and chained all the doors to ensure Ms. G. couldn't leave the residence.

[ 14 ] After a short while, Mr. Dessouza went upstairs to get a cigarette.

[ 15 ] Ms. G. took the opportunity to leave. She ran outside, wearing just a nightgown, no shoes, and no socks. Mr. Dessouza, having heard this, chased Ms. G. outside of the residence. Ms. G. was crying and screaming as she went outside.

[ 16 ] Mr. Dessouza followed Ms. G. and attempted to persuade her to not call the police. Ms. G. ran across to a gas station and used a pay phone. She called 911. The call was recorded. It is conceded that this call was made within 30-60 minutes after the alleged sexual assault.

[ 17 ] The call was, for some unknown reason, terminated. Ms. G. immediately recalled 911. This call was also recorded.

[ 18 ] These two recorded calls are the 911 Calls.

[ 19 ] It is clear from the 911 Calls that Ms. G. is extremely distraught. She was yelling and crying during the 911 Calls.

[ 20 ] Ms. G. told the 911 operator that she had been raped by her landlord and was being chased by him.

[ 21 ] Mr. Dessouza made a phone call to 911 shortly after Ms. G.'s calls.

[ 22 ] The police arrived shortly thereafter.

[ 23 ] There is also some evidence that Mr. Dessouza broke a beer bottle over his head and told Ms. G. that IF she told anyone or went to the police, Mr. Dessouza would tell them that she had broken the beer bottle over his head.

Analysis

[ 24 ] There is no doubt that the 911 Calls are not admissible unless the statements made during the calls:

i. Is a spontaneous utterance, being a traditional exception to the hearsay rule; or

ii. Admissible under the Principled Approach.

i) Spontaneous Utterance

[ 25 ] The law on the "spontaneous utterance" exception to the hearsay rule was set out by the Court of Appeal in R. v. Dakin , (1995) 1995 1106 (ON CA) , 80 O.A.C. 253 at page 256:

Following a voir dire , the trial judge permitted the introduction of the nurse's evidence of the alleged utterances on the basis that the trustworthiness of Julie's statements was as great as that of the statements that preceded them and that, as he put it, there was "little to distinguish the existing circumstances in the hospital emergency room from the circumstances that existed throughout the hour since the horrible event, other than time". He referred to the decisions of this court in R. v. Clark , (1983), 1983 1805 (ON CA) , 7 C.C.C. (3d) 46 and in R. v. Khan , (1988), 1988 7106 (ON CA) , 42 C.C.C. (3d) 197 . In the latter case, at p. 207, Robins J.A. referred to Clark and to Ratten v. The Queen [1972] A.C. 378 , as having established that

... a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. 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.

On the appeal, Mr. Gold submitted that all of the statements, other than those made to other residents of the house within seconds or minutes of "the horrible event", should have been excluded. His submission was premised on the argument that the decision of the Supreme Court of Canada in R. v. Khan (1990), 1990 77 (SCC) , 59 C.C.C. (3d) 92 , while affirming the result in this court, had effectively changed the law and reinstated the principle of strict contemporaneity. In support, he pointed to the statement of McLachlin J. at pp. 99-100 of Khan that:

I am satisfied that applying the traditional tests for spontaneous declarations, the trial judge correctly rejected the mother's statement. The statement was not contemporaneous, being made 15 minutes after leaving the doctor's office and probably one-half hour after the offence was committed. Nor was it made under pressure or emotional intensity which would give the guarantee of reliability upon which the spontaneous declaration rule has traditional rested.

and to the discussion of that case appearing in Sopinka, Lederman and Bryant, The Law of Evidence in Canada , 1992, at pp. 261-262.

We do not accept the submission that the Supreme Court of Canada decision in Khan - in which there appears no reference to Clark - has changed the law regarding spontaneous declarations as stated in Clark and has reinstated the principle of strict contemporaneity enunciated in some earlier authorities. The admissibility of the declaration is assessed not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion: McCormick on Evidence , 4th ed. (1992), para.272, at pp.218-219.

[ 26 ] In this case, the following evidence is central to the determination that Ms. G. remained under the stress of the alleged incident without any real possibility of concoction or distortion:

• The alleged rape occurred in Mr. Dessouza's room;

• Ms. G. and Mr. Dessouza, within minutes, went downstairs;

• Mr. Dessouza disconnected the telephone preventing Ms. G. from calling anyone;

• Mr. Dessouza put the chains on the locks so that he could prevent Ms. G. from leaving the residence;

• Mr. Dessouza left Ms. G. to go upstairs to get a cigarette;

• Ms. G. immediately left the premises and went outside to get help;

• Ms. G. was only wearing a nightgown, no shoes or socks;

• Mr. Dessouza gave chase and tried to stop her from seeking help;

• Ms. G. went across the road to a gas station to use a payphone;

• Ms. G. was screaming, crying and distraught throughout the event in the residence and while she was running away;

• This appeared to be a spontaneous and sincere response to what had occurred;

• There were no intervening events which would have given Ms. G. an opportunity or reason to concoct or fabricate her statements to the 911 operator;

• Ms. G. continued to be screaming, crying and distraught throughout the 911 Calls; and

• The entire time from the alleged rape and the calls to 911 is somewhere between 30 to 60 minutes.

[ 27 ] In my view, while the act of the sexual assault had been completed, the "dramatic or startling act or event and relating to such an occasion" continued throughout the time Mr. Dessouza prevented Ms. G. from using a telephone or leaving the premises and while Ms. G. ran for help. Even if strict contemporaneity was required, the facts of this case contain a sufficient continuity for the 911 Calls to be strictly contemporaneous. In any event, strict contemporaneity is not required. See Dakin , supra ( 45- 60 minutes after the event); R. v. Esford [2003] O.J. No. 1412 para 8 (one hour or so) ;

[ 28 ] The Defence suggests Ms. G. may have decided to call the police before Mr. Dessouza called the police about the breaking of the beer bottle over his head. If there was evidence that both parties sought to get their "story" to the police first, this might have seriously compromised the reliability of the statements made by Ms. G. to the 911 operator. However, that is not the evidence. The evidence is that Mr. Dessouza said "if" Ms. G. went to the police he would tell them she hit him over the head with a beer bottle. If anything, this statement would have been a disincentive for Ms. G. to go to the police rather than report it first. Further, the evidence is that Mr. Dessouza chased Ms. G. after she left the residence and begged her not to go to the police. This is inconsistent with the Defence’s suggestion Ms. G. wanted to be first to call the police. Mr. Dessouza would have simply called the police when Ms. G. left the residence. Only after Ms. G.'s screaming and determination to call the police did Mr. Dessouza call the police as well. The evidence simply doesn’t lend itself to this “race” to call the police first as suggested by the Defence.

[ 29 ] I am not persuaded there was a race to call the police or that speculation there may have been a "race" to call the police is any reason to discount the reliability of the statements in these circumstances.

[ 30 ] The 911 Calls are admissible as an exception to the hearsay rule.

The Principled Approach

[ 31 ] I will briefly deal with this since counsel both made submissions in this regard.

[ 32 ] In order to be admissible under this approach, the Crown must establish the reliability and necessity for the hearsay evidence. R. v. Mapara (2005), 2005 SCC 23 () , 195 C.C.C. (3d) 225 (S.C.C.) at para 15 and R. v. Khelawon (2006), 215 C.C.C. (3d) (S.C.C.) at para 47.

[ 33 ] On the question of reliability, that has been addressed above because reliability is one of the fundamental reasons for permitting spontaneous utterances.

[ 34 ] The real issue in this case is necessity. The Defence submits that Ms. G. can simply give the same evidence. She did so in 2009 at the preliminary hearing. She recalled making the calls and generally what she told the 911 operator.

[ 35 ] However, the 911 Calls are much more complete and provide much better and more demonstrative recounting of what occurred during the 911 Calls. In my view, the Crown has satisfied the court that it is necessary for the evidence to be admitted. Firstly, the events go back almost 16 years. The best and only complete evidence of what was said at the time by Ms. G. is from the 911 Calls. Further, the 911 Calls provide the best evidence of Ms. G.'s heightened emotional distress at the time which could never be repeated or demonstrated to the jury. See. R. v. Mete , [1998] O.J. No. 16 at para 117 and R. v. Arsenault , [1997] O.J. No. 3977 (C.A.) and R. v. W.T.V. [2001] O.J. NO. 4737 (S.C. J.) .

[ 36 ] If necessary, I would have admitted the 911 calls under the Principled Approach as well.

Conclusion

[ 37 ] The 911 calls are admissible.

Ricchetti, J.

Released: January 9, 2012.

COURT FILE NO.: CR093822

DATE: 20120109

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – Asizkpor DESSOUZA Defendant RULING ON ADMISSIBILITY OF 911 CALLS Ricchetti, J.

Released: January 9, 2012