CITATION: R. v. Mendonca, 2015 ONSC 273
COURT FILE NO.: 13-50000124-0000
DATE: 20150114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
Jill Cameron and David Tice, for the Crown
Susan Pennypacker and Matt Fisico, for Mr. Mendonca
HEARD: January 7th, 2015
M. Forestell J.
RULING ON THE ADMISSIBILITY
OF THE AUDIOTAPE OF THE 911 CALL
BY THE DECEASED
I Overview
[1] Brian Mendonca is charged with the first degree murder of Khadeem Antoine.
[2] The allegation against Mr. Mendonca is that he stabbed Mr. Antoine in the early morning hours of March 23, 2012. At the time, Mr. Mendonca was 18 years-old and Mr. Antoine was 19 years-old.
[3] The deceased, Khadeem Antoine, called 911 after he had been stabbed. During the call he names his “friend”, “Brian”, as his assailant. Also, during the call Khadeem Antoine asks for help and says he thinks that he is dying. At two points during the call, he screams. He speaks of having trouble breathing.
[4] Counsel for Mr. Mendonca has conceded that the contents of the call are admissible for their truth, but argues that the evidence should be admitted only by way of transcript and that the audiotape should not be played to the jury. It is argued that the prejudicial effect of the audio outweighs its probative value.
[5] The position of the Crown is that the probative value of the audio outweighs any limited prejudicial effect.
[6] For the reasons that follow I have concluded that the audiotape is admissible.
Analysis
[7] The issue on this application is whether the probative value of the audio of the tape outweighs its prejudicial effect.
[8] The assessment of the probative value of evidence involves a consideration of the extent to which the fact, to which the evidence relates, is in issue at trial and the extent to which the evidence tends to prove that fact. If evidence is extremely probative of the fact, but the fact is not in issue, the probative value will be low. If the fact is very much in issue, but the evidence is not highly probative of the fact, the probative value will similarly be reduced. Conversely, if the fact is central and the evidence strongly probative of the fact, the probative value will be high.
[9] Prejudicial effect refers to the adverse consequences of the admission of the evidence. It is usually described as encompassing ‘reasoning prejudice’ and ‘moral prejudice’. Reasoning prejudice is the likelihood that the evidence would be used to draw an improper inference and moral prejudice is the danger that the emotions of the jury would be inflamed and the jury would act on the emotional response. (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 148-150).
[10] The probative value of the audiotape in this case lies in its tendency to prove the identity of the person who fatally stabbed the deceased. The identity of the assailant is in issue in the trial. In the 911 call, the deceased identifies the assailant as “Brian” and says that the person is his “friend”. The content of the call is highly probative on the issue of identity.
[11] The content of the call can be conveyed by a transcript. However, the defence has not admitted that the deceased was telling the truth when he identified his killer nor that his account was reliable (beyond threshold reliability for admissibility). The probative value of the audiotape, over and above the transcript, lies in the fact that the audiotape enables the jury to assess the physical and emotional state of the deceased when he made the statements. This goes to the credibility and reliability of the content of the statement.
[12] The potential prejudice of the audiotape is that the jury will be so inflamed by the emotional nature of the tape they will act in response to that emotion.
[13] I find that the audiotape has the potential to arouse the emotions of the jury. Hearing the voice of the deceased as he succumbs to his injuries is potentially upsetting for those who hear it. However, the deceased speaks reasonably calmly in parts of the tape and he is emotional in others. While there is some potential for prejudice from the playing of the tape, the risk of prejudice is not high. The potential for prejudice can be adequately addressed by a limiting instruction to the jury.
[14] The probative value of the tape is significant in that it provides the jury with a tool to assess the tone and emotion of the deceased at the time that he makes the relevant statements about his assailant. Where, as in this case, the reliability of the statements of the deceased are in issue, the probative value of this form of evidence is very significant and clearly outweighs the potential prejudicial effect. I am of the view that a limiting instruction will adequately address the limited potential prejudice from the playing of the tape.
II Conclusion
[15] The audiotape of the 911 call is admissible and may be played to the jury. Its probative value outweighs its prejudicial effect. I will provide a limiting instruction to the jury prior to the playing of the tape.
M. Forestell J.
Released: January 14, 2015
CITATION: R. v. Mendonca, 2015 ONSC 273
COURT FILE NO.: 13-50000124-0000
DATE: 20150114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
RULING ON THE ADMISSIBILITY
OF THE AUDIOTAPE OF THE 911 CALL
BY THE DECEASED
M. Forestell J.
Released: January 14, 2015