CITATION: R. v. Brown, 2015 ONSC 4121

COURT FILE NO.: CRIM(P) 383/13

DATE: 2015 06 26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Michael P. Michaud, for the Crown

• and -

NATALIE BROWN

Maurice J. Mattis, for the Defence

HEARD: May 15, 19 and 20, 2015

RULING: RES GESTAE STATEMENT

FAIRBURN J

Overview

[1] Ms. Brown was before the court on a three-count indictment, alleging that she committed three robberies during the evening of July 19, 2012. Each robbery occurred about thirty minutes apart at different bus shelters. The Crown alleged that, in each case, Revington Bailey was the assailant and Ms. Brown was the getaway driver.

[2] An agreed statement of fact was filed at the outset of trial. It was agreed that the first two robberies occurred and that Revington Bailey was the person who physically robbed both individuals. He used a gun in each incident. In the first he pointed the gun at the victim and in the second he discharged it into nearby grass. As for the third robbery, there was no agreement.

[3] Bhupinder Singh was the alleged victim of this robbery. While Mr. Singh had called 911 after the robbery, provided a statement to the police shortly after that, and testified at Ms. Brown’s preliminary hearing, at the time of trial he was nowhere to be found. The Crown led evidence respecting the ultimately unsuccessful efforts that had been made to locate Mr. Singh in order that he may testify at trial.

[4] As an alternative to his viva voce evidence, the Crown sought the admission of Mr. Singh’s: (1) 911 call; (2) police statement; and (3) preliminary inquiry evidence. I made an initial ruling respecting the 911 call, concluding that it was admissible under the res gestae exception to the hearsay rule. I informed counsel of this ruling and that written reasons would follow.[^1] In the wake of this ruling, the defence conceded the admission of Bhupinder Singh’s police statement and preliminary inquiry evidence. Counsel agreed that the statement and evidence could be admitted for the truth of their contents. This position obviated the need for a ruling on the admissibility of the police statement and preliminary inquiry evidence.

[5] These are my written reasons as it relates to the admission of the 911 call.

The 911 Call, Statement to the Police and Preliminary Inquiry Evidence

[6] As discussed below, the defence took the position that the content of the 911 call could not be relied upon because many of the things that Mr. Singh said in this call were contradicted by his later statement to the police and preliminary inquiry evidence. As such, it is necessary to set out the general content of each of the 911 call, police statement, and preliminary inquiry evidence.

The 911 call

[7] In addition to being provided with a transcript of the 911 call, the audio recording was played in court and marked as an exhibit on the voir dire. There is no dispute that Mr. Singh’s 911 call was received on July 19, 2012, at 11:29:04 p.m. While Mr. Singh was able to converse with the 911 operator, conveying what had occurred and answering questions put, he sounded anxious, concerned, scared and somewhat shocked by what had taken place.

[8] He was calling from a Pizza Nova at 3417 Derry Road East, close to the intersection of Goreway Drive and Derry Road. On consent, a map with a scale was filed on the voir dire, demonstrating that the Pizza Nova is no more than about 100 to 150 metres from the intersection. Mr. Singh told the operator that a man had followed him on foot to the bus stop. Once there, the man hit him in the back. Mr. Singh told the operator that he “… was just standing in front of … Derry and Goreway”, “I was just standing at the bus stop to go my home [sic]”, “I was waiting for the bus … I was just going to my home”, and got hit from behind.

[9] Mr. Singh said that when he was hit, he dropped his Blackberry phone. The man picked it up. The man then showed him a gun. Mr. Singh said that he was about to hit the man when his assailant started running toward a car, shouting “drive-drive-drive”. The man got into the car. A “lady” was driving and the car sped away.

[10] Close to the outset of the call, Mr. Singh provided the operator with a licence plate number for the getaway vehicle: BJNX 949. He said it was a Dodge Caravan. The agreed statement of fact filed at the outset of the voir dire said that this licence plate came back to a Pontiac Montana van, grey in colour, belonging to Ms. Brown. The police located the van within a few hours of the 911 call on a street outside of Ms. Brown’s residence. When it was searched under warrant, among other things, the van was found to contain bus tickets and a receipt from the second robbery victim: Vimmi Dhingra. It was agreed that the second robbery had occurred at around 10:57 p.m., and the first robbery around 10:25 p.m.

[11] When asked by the 911 operator, Mr. Singh said that both the driver and the assailant were black. When asked if he could “tell how old”, he said “the girl was like, uh, between 25 to 30. And he was wearing the cap and a chain. … he was wearing, wearing black, uh … black t-shirt.” When asked whether he got a look at the “female, other than [that] she’s black”, he said:

I just saw the car and, uh, the guy with the shirt and like, uh, drive-drive-drive. Right? And, uh, I was, uh, like, uh, about to hit him and then he start running towards the car. And, uh, he was shouting, drive-drive-drive.

Police statement

[12] At 12:22 a.m. on July 20, 2012 (less than an hour after the 911 call), Mr. Singh gave an audio-video recorded statement to the Peel Regional Police. He repeated much of what he had told the 911 operator, including repetition of the licence plate number of the getaway vehicle. He also provided a little more detail. He said that at 11:15 p.m. he had crossed the intersection of Derry and Goreway, heading toward the bus stop. A man was following him as he walked. Once at the bus stop, the man used his forearm to hit him from behind. When Mr. Singh’s Blackberry fell to the ground, the man retrieved it and then pulled a gun out from his waist area. He pointed the gun at him and said he would shoot him. The man then pulled the trigger, but a bullet did not come out. The man then ran to a car that was waiting for him in front of the Pizza Nova. The man yelled “drive, drive”.

[13] Mr. Singh agreed with the officer’s statement that he was still in a bit of “shock”. When the interviewing officer asked Mr. Singh to confirm the time that the robbery took place, he said it was “like it was ah 10:25 … between 10:20 and 10:25”. Mr. Singh confirmed that it had been a black female driver and said that her hair was shoulder length. He was unable to give her approximate age. He was able to describe the male a bit better, saying he was wearing a “skull cap”, which he later described in a manner suggesting it was a baseball cap. He was black and between 25 and 30 years of age. He was clean-shaven and wearing a black t-shirt. He was also wearing a silver chain.

[14] Mr. Singh said that he was “so confused” after the robbery and that there was an “old guy” there trying to catch the bus. He asked Mr. Singh what had happened and Mr. Singh told him that he had been robbed and asked to use the man’s phone. The man told him to go into the Pizza Nova to make a call, which he did.

Preliminary inquiry evidence

[15] At Ms. Brown’s preliminary inquiry on June 20, 2013, almost exactly one year following the alleged robbery, Mr. Singh gave an affirmation to tell the truth. He spoke through an interpreter. He testified that at 11:20 p.m. he was at the intersection of Derry and Goreway, walking toward the bus stop, when he saw a person following him. He largely repeated what he had told the 911 operator and the officer during the police interview following the robbery.

[16] Mr. Singh testified that after the man had retrieved his Blackberry from the ground, Mr. Singh told him to give it back. When Mr. Singh stepped toward him, that is when the man took the gun out. He said that he would shoot Mr. Singh and, when Mr. Singh moved forward one step, the man pulled the trigger: “[n]othing came out of the gun and immediately he started running as well”. He started “saying”, “[d]rive, drive”. The car was parked in the plaza outside of the Pizza Nova. Mr. Singh chased him to the car door and saw a “lady” driving the car. He said the woman driving was black with shoulder length hair.

[17] In cross-examination he was asked questions about his facility with the English language. He confirmed that he was comfortable speaking English, but that in stressful situations he was more comfortable using an interpreter. He said that he was upset when he was speaking to the police at the police station.

The Efforts to Find Mr. Bhupinder Singh

[18] Constable Brandt King was in charge of this investigation. He testified over two days about efforts that had been made to contact Mr. Singh and have him attend to testify. Cst. King had a lengthy and, what he believed to be, good relationship with Mr. Singh who had willingly testified on three previous occasions: (1) Revington Bailey’s preliminary inquiry; (2) Ms. Brown’s preliminary inquiry; and (3) Mr. Bailey’s trial. There had never been a need to get a warrant for Mr. Singh’s attendance as he had responded to a subpoena on each of these prior occasions.

[19] On March 23, 2015, Cst. King received an email from a legal administrative person within the Peel Crown Attorney’s Office. The email asked for a witness list so that subpoenas could be prepared for trial, set to commence May 11, 2015. Cst. King immediately took steps to try and locate Mr. Singh. He first sent him an email asking that he provide his new cell phone number so that he could be contacted. Mr. Singh never responded. Officer King then attempted to call him at the number he had on file, but no one answered and there was no voicemail.

[20] The next day, Cst. King tasked another officer to attend at the last known address for Mr. Singh. The officer attended, but to no avail. Over the next more than seven weeks, numerous steps were taken to locate Mr. Singh, including:

• checking MTO records for new address information;
• asking the Barrie Police Service to attend at an address in Barrie to determine if the witness had moved to that location;
• having officers attend at other addresses in the Brampton area and speaking to the landlord of one location about a potential forwarding address for the witness;
• checking CPIC records for potential leads as to Mr. Singh’s whereabouts;
• speaking with residents at locations, where Mr. Singh was thought to have previously resided, about whether they knew him or knew of his whereabouts;
• checking Google and Facebook to determine if Mr. Singh had an online presence;
• emailing Mr. Singh at his last known email address on multiple occasions;
• calling Mr. Singh’s last know cell phone number on multiple occasions;
• checking other police databases regarding Mr. Singh’s whereabouts;
• contacting people believed to have previously associated with Mr. Singh to determine if they had any knowledge of his whereabouts;
• contacting social assistance personnel to determine if they had a record of Mr. Singh;
• contacting border services personnel regarding whether Mr. Singh had left the country; and
• contacting schools believed to have been attended by Mr. Singh, both Mohawk and Sheridan Colleges.

[21] Notwithstanding all of these efforts, which commenced March 23, 2015, and were ongoing to the point in time when Cst. King testified on May 15 and 19, 2015, Bhupinder Singh simply could not be located. As for the contact with the border services personnel, Cst. King was informed that Bhupinder Singh had been here on a three year student Visa that commenced in April of 2012, meaning that he may have returned to where he came from. Although Cst. King could not be sure, he thought Mr. Singh was from India and had reason to believe that he may have returned to his home country. The border services individual with whom Cst. King dealt was unable to confirm whether this had taken place. As for school, Mohawk College had no record of Mr. Singh. While Sheridan College had a record for someone with this name and a matching date of birth having attended, he was last enrolled in 2012.

[22] Cst. King could think of nothing else he could do to find Mr. Singh. He had exhausted all efforts.

[23] I am entirely satisfied that detailed, if not entirely exhaustive, efforts were made to locate Mr. Singh and he was not found. As such, I am satisfied that he was not available to testify at this trial.

Positions of Counsel

Crown Position

[24] The Crown took the position that the 911 call was admissible under a traditional exception to the hearsay rule, covered by the res gestae doctrine. He argued that I should find that the call was made within minutes of the robbery and before there was any opportunity to concoct or fabricate a story. The fact that during the police statement Mr. Singh said that the robbery had occurred between 10:20 and 10:25 p.m. was nothing more than a slip. The Crown says that it had clearly occurred just prior to the call having been made.

[25] In the alternative, the Crown took the position that the 911 call should be admissible as part of the principled exception to the hearsay rule, as the content of the call was necessary given that Mr. Singh was not available to testify and threshold reliability had been met.

Defence Position

[26] The defence takes the position that there are too many inconsistencies between the information imparted during the 911 call and the statement and preliminary inquiry evidence. These inconsistencies should give me pause in terms of the reliability of the 911 call and, as such, I should exercise my residual discretion to exclude the call from evidence.

Hearsay Statements: Res Gestae Doctrine and the Principled Approach

[27] Mr. Singh’s 911 call is hearsay. It is presumptively inadmissible unless it fits within a traditional exception to the hearsay rule, specifically the res gestae doctrine, or is admissible under the principled approach to hearsay. I find that the call is admissible under both of these approaches.

[28] Hearsay evidence is comprised of an out-of-court statement offered for the truth of its contents by someone or something other than the declarant. The presumptive rule against hearsay evidence is an exception to the general rule that all relevant evidence is admissible: R. v. Carroll, 2014 ONCA 2 [Carroll] at para. 99; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 [Khelawon] at para. 34. The presumptive rule against admissibility is rooted in the concern that, without the declarant present, the reliability of the out-of-court statement cannot be tested for its truth and accuracy: Khelawon at para. 2.

[29] Hearsay is an exclusionary rule to which there are a number of exceptions and a catch-all principled exception. Prior to R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81 [Khan], there existed multiple exceptions to the general exclusionary rule related to hearsay. One of the exceptions is the res gestae rule. When Khan came along, the old exceptions – known as “pigeon-holes” – were somewhat overshadowed by what became known as the principled approach to the hearsay rule. The principled approach allowed hearsay to be elicited despite the fact that it may not fall within one of the traditional and well-known exceptions, provided that the evidence met the criteria of necessity and reliability.

[30] As the jurisprudence evolved, it became clear that the exceptions remained live and were not entirely subsumed by the principled approach. Fifteen years after Khan, in R. v. Mapara, 2005 SCC 23 [Mapara] at para. 15, McLachlin C.J., speaking for the majority, concluded that the traditional exceptions to the hearsay rule remained presumptively in place. While the exceptions could be challenged as failing to meet the indicia of necessity and reliability, if such a challenge succeeded, the traditional exception could be modified to bring it in line with the principled approach. (I pause to note that no such challenge was made in this case.)

[31] Moreover, where a traditional exception applied, only in “rare” cases would an out-of-court statement be excluded because it fails the “indicia of necessity and reliability” under the principled approach: Mapara at para. 15. Of course, as noted by the Chief Justice, where a traditional exception to the hearsay rule satisfies the requirements of necessity and reliability, it would be only in the most exceptional case where the statement itself would be found to be inadmissible:

In all but the most exceptional cases the argument is spent at the point where an exception to the hearsay rule is found to comply with the principled approach to the hearsay rule. See Mapara at para. 34.

[32] The res gestae doctrine constitutes a principled exception to the hearsay rule and one that has passed the test of time - both before and after the principled approach to hearsay was introduced into our jurisprudence. Res gestae statements are often referred to as “spontaneous utterances” made contemporaneously, or close to contemporaneously, with the event that forms the subject matter of the declaration. Their reliability rests on the belief that, owing to the contemporaneity requirement, there has been no time for concoction or fabrication.

[33] Exact contemporaneity is not required. Rather, the entire circumstances are assessed to determine whether the subject statement is proximate enough to the event to meet the guarantees of trustworthiness: R. v. Head, 2014 MBCA 59 at para. 30. As noted by Dubin J.A. (as he then was) in R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 7 C.C.C. (3d) 46, [1983] O.J. No. 3125 (C.A.) at paras. 34-35, leave to appeal refused [1983] S.C.C.A. No. 253, 42 O.R. (2d) 609 n, the key is to address whether the declaration is sufficiently contemporaneous so as to “exclude the possibility of concoction or distortion”. See also: R. v. Shea, 2011 NSCA 107 at para. 64, leave to appeal refused [2012] S.C.C.A. No. 298; R. v. Sylvain, 2014 ABCA 153 at para. 31 [Sylvain].

[34] 911 calls have been repeatedly admitted under the res gestae exception to the hearsay rule. Chief Justice Fraser and Picard J.A. recently catalogued a number of these judgments in Sylvain at paragraph 34. As for the Ontario Court of Appeal, in R. v. Nicholas, 2004 CanLII 13008 (ON CA), [2004] O.J. No. 725, 184 O.A.C. 139 [Nicholas], Abella J.A. (as she then was) endorsed the view that a 911 call could be categorized as falling within the res gestae exception. In the circumstances of Nicholas, the call had been made within ten minutes of the attack and there was no suggestion of motive for misrepresentation of what happened: Nicholas at paras. 88-90.

[35] While not in the context of a 911 call, the Court of Appeal for Ontario has recently dealt with spontaneous utterances in R. v. Nguyen, 2015 ONCA 278 at para. 145, where Gillese J.A., for the majority, reinforced this “established exception to the hearsay rule”, resting on the understanding that statements made “under pressure and emotional intensity give the guarantee of reliability upon which … the rule has traditionally rested”.

[36] As for the principled approach, ushered in under Khan, and amplified over time, the court must look to the necessity for the evidence and whether it meets threshold reliability. As for the latter, the admissibility inquiry focuses on whether there exist adequate substitutes for the declarant, so that the trier of fact can assess ultimate reliability:

The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination. [See: Khelawon at para. 76.]

[37] Under Khelawon, it was determined that the reliability requirement can be met in two circumstances: (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, among other things, the consideration of external factors: Khelawon at paras. 49, 60-66; R. v. Youvarajah, 2013 SCC 41 at para. 30; R. v. Devine, 2008 SCC 36 at paras. 22 -23[Devine]; Carroll at paras. 99-103.

The Law Applied

[38] I conclude that the 911 call made by Mr. Singh falls within the long-established res gestae exception to the hearsay rule. I am satisfied that Mr. Singh made the call right on the heels of having been robbed and the getaway car having left. I make this determination for a few reasons.

[39] First, I find that Mr. Singh’s voice, captured on the 911 tape, that I have had the opportunity to listen to, is clearly one of a man who is still suffering from the shock of what has just happened to him. While he was able to converse, he was clearly concerned and anxious on the phone. In short, his tone of voice sounds like someone who had just been robbed. Indeed, he used the word “just” on a few occasions during the call. For instance, he told the operator that he was “just standing at the bus stop to go” home when he was attacked. He also made the call from the Pizza Nova, at the spot where he said the vehicle driven by the woman had been parked.

[40] I find that when Mr. Singh told the police during his statement that he had been robbed between 10:20 and 10:25 p.m., he merely misspoke. I note that earlier in his statement he said that it was 11:15 p.m. when he crossed the intersection. When later asked to clarify, likely still under extreme stress (a fact that he confirmed for the officer), he got the time wrong. Under oath at the preliminary inquiry, he confirmed that the time was 11:20 p.m.

[41] I find as a fact that Mr. Singh was robbed after 11:15 p.m. When he told the police that it was between 10:20 and 10:25 p.m., this was nothing more than a slip of the tongue. I find that he made the 911 call almost immediately after the robbery. I find that he was under stress when he made the call and there was no possibility of concoction or fabrication. I find that the 911 call falls squarely within the res gestae exception to the hearsay rule and is admissible on this basis.

[42] I also find that the 911 call is admissible under the principled approach to the hearsay rule. The statement is necessary in light of the fact that the declarant is not available for trial.

[43] As for threshold reliability, for the very same reasons that the res gestae exception exists, because of the absence of opportunity to concoct, fabricate or invent, I find threshold reliability is met. In addition, I consider the fact that Mr. Singh’s statement has external markers of reliability. For instance, the licence plate number that he provided to the 911 operator came back to a vehicle that contained items taken from the second robbery victim, Ms. Dhingra. This fact strengthens my confidence in the threshold reliability of Mr. Singh’s statement to the 911 operator.

[44] As for the position that Mr. Singh was inconsistent as between the information he provided in the 911 call and his statement to the police and his preliminary inquiry evidence, I find that to the extent there are inconsistencies, they are minor and of little concern. For instance, while he told the 911 operator that the woman driving the car was 25 to 30 years of age, read in context, I am not at all confident that he was referring to the female driver, as this sentence is followed by reference to the male: “the girl was like, uh, between 25 to 30. And he was wearing the cap and a chain. … he was wearing, wearing black, uh … black t-shirt.” English was not Mr. Singh’s first language and he was in a state of shock, as confirmed during the police interview, when he made the 911 call. Getting a pronoun wrong is perfectly understandable in the circumstances.

[45] Another inconsistency relied upon by counsel was the fact that during the call Mr. Singh said he could not see any other identifying features of the female driver, but during the interview he said that she had shoulder length hair. Again, this is a minor inconsistency that is entirely understandable when taken in context.

[46] The defence ask that I exclude the statement under my residual powers to protect the fairness of the trial: Khelawon at para. 49; R. v. Whittaker, 2003 CanLII 64249 (ON SC), [2003] O.J. No. 5617, 21 C.R. (6th) 273 (Sup. Ct.) at para. 11. The defence argued that, as Mr. Singh’s first language was not English, there was confusion about the timing of the 911 call relative to the robbery and some confusion about answers given to questions put by the operator, such that I should exclude the statement.

[47] I find that the defence argument for exclusion is an argument that goes to ultimate reliability. These are certainly matters to take into account when determining whether Mr. Singh’s 911 call is to be relied upon and, if so, what weight should be attributed to the statement. The residual discretion to exclude a hearsay statement, despite it falling within the principled approach, is one that rests largely on assessing the probative value of the statement and whether it is outstripped by its prejudicial impact: Khelawon at para. 49. These are the considerations that trial fairness concerns rest on. I find that these concerns are not operative here.

Conclusion

[48] I find that the 911 call is captured by the res gestae exception to the hearsay rule. To the extent necessary, I also find that its admission is necessary and that threshold reliability has been met, pursuant to the requirements of admissibility under the principled exception. The call is admissible.

“original signed by Justice Fairburn”

FAIRBURN J

Released: June 26, 2015

[^1]: This ruling was made on May 20, 2015. On June 9, 2015, Ms. Brown was acquitted on count one and convicted on counts two and three on the indictment.