ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20121217
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – ANTHONY CAMPBELL Applicant
Patrick Clement, for the Crown/respondent
Mitchell Chernovsky, for the accused/applicant
HEARD: November 19, 2012
Reasons for Ruling re Admissibility of a 911 Call
MacDonnell, J.
[ 1 ] In the course of his trial on a charge of second degree murder, the applicant sought to adduce an anonymous call made to a 911 operator on the evening of the homicide. The victim of the homicide, Shawn Charles, had suffered a fatal stab wound to the heart. The allegation of the Crown was that the applicant was the person who stabbed him. The person who called 911, however, identified Percival Pitt as the person who had done so.
[ 2 ] The applicant wished to have what the anonymous caller told the 911 operator admitted in evidence for its truth. After hearing from the parties on a voir dire , I delivered brief oral reasons dismissing the application. I indicated that I would expand upon those reasons in writing.
A. The Relevant Facts
[ 3 ] On July 1, 2011, a neighbourhood barbeque to celebrate Canada Day took place in the area of the apartment buildings on Biggin Court in Toronto. Shawn Charles lived on Biggin Court and attended the barbeque with two of his friends. At approximately 6:15 p.m., Mr. Charles, became involved in an altercation in the course of which he was stabbed in the heart. A friend rushed him to hospital but he died shortly after arriving.
[ 4 ] The police began to investigate the altercation at 6:30 p.m. At 8:30 p.m., approximately two hours and fifteen minutes after Shawn Charles was stabbed, an unknown male called 911. The male told the 911 operator that “someone got stabbed earlier today at Biggin Court”. He said that he was calling to let the police know that the person who did the stabbing, whom he identified as ‘Rudy’, lived in Apartment 217 at 7 Biggin Court. He also described the car that Rudy drives. The operator asked “Did you actually see it or did you hear him talking about it?” The caller responded “…I wouldn’t call if I didn’t see what happened… I just don’t want to be a witness, that’s how it is.” The caller refused to identify himself.
[ 5 ] “Rudy” is the nickname of Percival Pitt, who did in fact live in a second floor apartment at 7 Biggin Court, although the number was 207, not 217. There was evidence from more than one witness that Pitt was one of the persons involved in the altercation with Shawn Charles. There was also evidence from a witness who did not see the altercation that Pitt was brandishing a knife in the course of a disturbance in front of 7 Biggin Court. However, none of the witnesses actually saw Mr. Charles get stabbed and the evidence pointing to the applicant was entirely circumstantial. The theory of the defence was that the person who stabbed Mr. Charles was not the applicant but rather Percival Pitt.
B. Discussion
[ 6 ] The use that the applicant proposed to make of the 911 call is a hearsay use. Hearsay evidence is presumptively inadmissible, but the presumption may be overcome if the evidence falls within a recognized exception to the rule against hearsay or if it is established that admission is necessary and that the evidence is sufficiently reliable that the trier of fact should be permitted to consider it.
[ 7 ] The applicant acknowledged that none of the traditional exceptions to the hearsay rule apply here and accordingly that the admissibility of the statements made by the anonymous caller depends on a consideration of the necessity and reliability criteria.
[ 8 ] It is common ground that necessity has been established. The parties join issue, however, with respect to reliability. The focus of the inquiry in that respect is not on the ultimate reliability of the evidence, which is a matter for the jury, but rather on ‘threshold reliability’. In R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787, at paragraph 49 , Justice Charron explained what will be required in order to pass the admissibility threshold:
The reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination.
[ 9 ] The applicant did not submit that the second ground referred to by Justice Charron is available here. The caller’s assertions were not made under oath, nor were they preceded by a warning as to the importance of telling the truth. Indeed, it is clear that the caller had no intention of being held to account for anything that he said. Because the call was audiotaped, there is an accurate record of what the caller reported, but in the absence of a videotape the jury’s ability to assess his demeanour is greatly diminished. Most importantly, the caller has never been and cannot now be cross-examined with respect to his assertions. If the statements are to be admitted, therefore, it would have to be on the basis that the circumstances under which they came about gave them a cogency that cross-examination would be unlikely to diminish.
[ 10 ] In support of his submission that the evidence should be admitted on that basis, Mr. Chernovsky referred to the judgment of the Ontario Court of Appeal in R. v. Chrisanthopoulos , [2003] O.J. No. 5252 . In that case, the appellant was charged with a number of offences arising from a kidnapping. The theory of the Crown was that the victim was kidnapped because the appellant believed that he could lead him to another person who owed him money. The victim was forced into the appellant’s car and driven around looking for that other person. At one point, the victim was put into the trunk of the vehicle. This was observed by an unknown stranger, who placed a call to 911. After being confined in the trunk for some time, the victim was returned to the back seat. By chance, an O.P.P. officer pulled the appellant’s car over and the victim was able to escape.
[ 11 ] The trial judge admitted the 911 call for the truth of its contents as a principled exception to the rule against hearsay. In determining that there were sufficient indicia of reliability to pass the admissibility threshold, the trial judge focused on the circumstances surrounding the call. The Court of Appeal affirmed the ruling of the trial judge. In the course of its reasons, the Court noted that while the trial judge had not done so, he would have been entitled to take into account “the striking similarities between the event described by the caller and the events which occurred shortly thereafter … as a means of testing the reliability of the 911 call.” The Court concluded: “In sum, we are satisfied that the 911 call was properly admissible as original evidence”.
[ 12 ] In Chrisanthopoulos it was the Crown that was seeking to introduce the evidence. In the case at bar, it is the defence. The distinction is not without significance: as Mr. Chernovsky observed, the court has discretion to relax the test for admissibility of hearsay evidence where the proponent of the evidence is the accused: see, e.g, R. v. Sunjka , [2006] O.J. No. 2204 (C.A.), at paragraph 23 .
[ 13 ] There are similarities between the facts of Chrisanthopoulos and those of the case at bar. In both cases, the evidence in question was a call made to a 911 operator by an anonymous caller, and in both cases the caller provided information concerning a criminal offence. However, there are also important differences. The call in Chrisanthopoulos was a true ‘emergency’ call, it was made while the offence was ongoing and it was describing events as they were occurring. It was those circumstances of immediacy that impressed the caller’s description of events with the stamp of reliability. No such circumstances exist in the case at bar. The call here was not an emergency call. The fact that it was made to 911 is merely an accidental feature of the case. Further, the caller was not describing ongoing events – the call was made two hours and fifteen minutes after the incident had ended and two hours after the police investigation had commenced. In short, the circumstances that carried the hearsay in Chrisanthopoulos over the threshold reliability hurdle are not present here.
[ 14 ] The discretion to relax the rules governing the admissibility of hearsay where the proponent of the evidence is the accused is well established. The discretion has limits, however. In R. v. Kimberley , 2001 24120 (ON CA) , [2001] O.J. No. 3603 (C.A.), Doherty J.A. stated at paragraphs 80 to 81:
The appellants also argued that where hearsay evidence is tendered by an accused, the Court should take a more relaxed view of the prerequisites to admissibility. It is well established that although the rules of evidence generally apply equally to the Crown and defence, a Trial Judge can relax those rules in favour of the defence where it is necessary to prevent a miscarriage of justice: R. v. Williams (1985), 1985 113 (ON CA) , 18 C.C.C. (3d) 356 at 372, 378 (Ont. C.A.); R. v. Finta (1992), 1992 2783 (ON CA) , 73 C.C.C. (3d) 65 at 200-203 (Ont. C.A.) , aff'd. (1994), 1994 129 (SCC) , 88 C.C.C. (3d) 417 at 527-28 (S.C.C.) ; R. v. Folland (1999), 1999 3684 (ON CA) , 132 C.C.C. (3d) 14 at 31-32 (Ont. C.A.) . Those cases do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tendered by the defence . As Martin J.A. said in R. v. Williams , supra , at p. 378:
... It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exculpatory rule aims to safeguard does not exist . [Emphasis added by Dohery J.A.]
Where hearsay evidence cannot pass the threshold reliability standard, the "danger" which justifies the exclusionary rule is very much in existence. What the cases referred to above do recognize is that fairness concerns may sometimes militate in favour of admitting defence evidence. These concerns may tip the reliability/necessity analysis in favour of the accused. Fairness concerns could not assist the Crown were it to tender the same evidence: R. v. Finta, supra; R. v. Folland , supra . Similarly, due process concerns, particularly the concern that an accused have a full opportunity to confront inculpatory evidence presented against that accused, may operate against admitting hearsay evidence tendered by the Crown. That concern would not have any relevance if the same evidence was tendered by an accused.
[Italics added]
[ 15 ] Doherty J.A. concluded, at paragraph 82, that “the appellants have failed to demonstrate that the circumstances surrounding the making of the…statements … offer any basis for a finding that those statements are sufficiently reliable to warrant their admissibility. The admission of evidence of such inherently unreliable statements would hardly prevent a miscarriage of justice. Indeed, it could occasion a miscarriage of justice.”
[ 16 ] As I have said, the applicant sought to have the statements made by the anonymous caller admitted for their truth on the basis of the first ground mentioned by Justice Charron, supra , namely that because of the circumstances in which they came about, the statements were so reliable that contemporaneous cross-examination would have added little if anything to the process of testing them. In my view, there is nothing about the way that this call to 911 came about that diminishes the utility of cross-examination. The caller was not giving a play-by-play account of an ongoing emergency. He had waited more than two hours before making the call. He had ample time to assess the situation and to weigh the advantages and disadvantages of anonymously pointing a finger at Percival Pitt. Borrowing language used by Justice Charron in Khelawon , “the circumstances raised a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination.” [1]
[ 17 ] To admit the contents of the call made to 911 by the anonymous caller would have required not the relaxation of the rules of evidence concerning hearsay but an abandonment of them. Accordingly, I ruled that the 911 call was not admissible.
MacDonnell, J.
Released: December 17, 2012
R. v. ANTHONY CAMPBELL
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – ANTHONY CAMPBELL Applicant REASONS FOR rULING MacDonnell, J.
Released: December 17, 2012
[1] At paragraph 107