Court File and Parties

Court File No.: CR-16-4000004 Date: 2017-01-11 Superior Court of Justice - Ontario

Re: Regina v Ammaan Charley

Before: E.M. Morgan J

Counsel: Tracey Vogel, for the Crown David Midanik, for the Defendant

Heard: January 9, 2017

Admissibility of 911 Call

[1] Ammaan Charley is charged with armed robbery and possession of a loaded restricted firearm. The charges stem from an incident that took place at Mr. Jerk’s West Indian Groceries and Convenience store on January 15, 2015. He has elected to be tried by judge alone, without a jury.

[2] It is alleged that Mr. Charley and another accomplice, who is a young person, robbed the store and beat the store clerk, Glassford Gordon. The Crown seeks to admit the audio recording and transcript of a 911 call made by Sandra Jonathan, a customer in the store at the time the robbery commenced and who called the emergency line from a parked car outside the store while the events were ongoing.

[3] It is the Crown’s position that the 911 call fits into the res gestae exception to the hearsay rule. Crown counsel submits that the call contains statements made contemporaneously with the incident and under circumstances that negate the risk of concoction and that affirm trustworthiness.

[4] Counsel for the Crown compares this case to R v Dakin (1995), 80 OAC 253, where the Court of Appeal allowed a statement made by a burn victim given at a hospital some 45 minutes after the incident in question. She argues that if that was considered to be the type of contemporaneous statement that is so bound up in the event as to be trustworthy, then a 911 call made in the very midst of a robbery is certainly a trustworthy and admissible statement.

[5] Counsel for the Crown submits that in view of the circumstances in which they were made, Ms. Jonathan’s statements during the 911 call should be received by the court for the truth of their contents.

[6] Counsel for the defense submits that since Ms. Jonathan was not inside the store when she called 911, her account was not truly contemporaneous with the events inside the store. It is the defense position that Ms. Jonathan did not properly witness the events she described in the emergency phone call.

[7] The Crown responds that Mr. Charley and his alleged accomplice ran out of the store, and that the relevant events occurred both inside and outside the store. Crown counsel says that a 911 call during the very moment of a store robbery, where the caller was a customer in the store and ran out after the robbery began and called from right outside the store, is the very definition of contemporaneous.

[8] I tend to agree with the Crown on this point. Ms. Jonathan observed whatever she observed – whether inside or outside the store – in what appears to have been a panic at the moment the events were taking place. Under the circumstances, there was no time for her to contemplate her surroundings and to concoct or fabricate a story.

[9] The defense’s stronger argument is that Ms. Jonathan’s account of what happened in the store on the 911 call differs in significant ways from the accounts of Mr. Gordon and the young person that allegedly accompanied Mr. Charley. In addition, defense counsel contends that Ms. Jonathan’s statements to the 911 operator contradict her own later statement to the police. He says that the 911 call is therefore unreliable.

[10] Counsel for the defense points out that, for example, Ms. Jonathan said on the 911 call that two “robbers” jumped over the counter in the store, while in her police statement she said only one did; Ms. Jonathan said to the 911 operator that two individuals were beating Mr. Gordon outside of the store, while Mr. Gordon said that only one person beat him; Ms. Jonathan did not mention hearing any gunshots to the 911 operator; Mr. Gordon was shot during the fight, which Ms. Jonathan said that she observed.

[11] The Crown’s response to this is to say that it is premature to come to the conclusion that Ms. Jonathan’s 911 statements are inaccurate in any significant way. Her later statement may contain clarifications of her earlier one so that any differences between her 911 call and her police statement are distinctions without a difference. Similarly, any discord between her 911 statements and the evidence of another witness may say more about that other witness’ evidence than it does about Ms. Jonathan’s.

[12] Moreover, Crown counsel states that one should not place undue emphasis on the very particular words one uses in an urgent 911 call, as this tends not to be a moment for precision wording. For example, if Ms. Jonathan said “they” jumped over the counter, she may have meant “he” or “one of them” jumped over the counter, but misspoke in the heat of the moment.

[13] Crown counsel also advises that Ms. Jonathan testified at the preliminary inquiry and has been subpoenaed and will be available to testify at trial. If there are inconsistencies in her statements, defense counsel will be free to bring them out in cross-examination.

[14] There are cases where statements have been excluded from the evidence even though they were made contemporaneously with an offense being committed. In R v Slugoski (1985) CCC (3d) 212 (BCCA), the accused’s mother exclaimed that her son had started a fire in her home, and barricaded herself inside the burning building. The circumstances suggested that the mother, who suffered from mental health problems, may have made her exclamation in order to falsely accuse her son and throw suspicion off herself. The mother’s statement was therefore held not to be within the res gestae exception to the hearsay rule, as it was not made under circumstances that militate against it being fabricated or concocted.

[15] In R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787, the Supreme Court of Canada revamped much of the law of hearsay, and brought the previously discrete categories of exceptions to the hearsay rule all under the rubric of what they labeled the “principle exception” to the rule. As a general matter, the Court indicated that “the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth-seeking function”: Khelawon, at para 2.

[16] Thus, for all exceptions to the hearsay rule one must ask whether the probative value of the proposed evidence outweighs the prejudicial effect.

[17] Defense counsel says that there is little probative value to Ms. Jonathan’s 911 call as it contains inaccurate statements. Crown counsel says that Ms. Jonathan’s 911 call is highly probative as it was made in circumstances that suggest its veracity and that meet “the twin criteria of necessity and reliability”: Khelawon, at para 2. The Crown indicates that in any case there is no prejudicial effect that cannot be countered by cross-examining Ms. Jonathan.

[18] At this stage of the proceedings I do not have to make any finding of ultimate reliability with respect to Ms. Jonathan’s statements in the 911 call. This application is brought by the Crown at the opening of trial, before any evidence has been called. A judge at this stage acts as a gatekeeper in making a “preliminary assessment of the ‘threshold reliability’ of the hearsay statement”: Khelawon, at para 2. The ultimate determination of the worth of this evidence will be decided at the conclusion of the trial in my capacity as fact finder.

[19] Thus, the point of the current exercise is not to determine the truth of Ms. Jonathan’s 911 statements, but to assess whether they were made in circumstances that establish their necessity and reliability.

[20] In my view, the statement is necessary to admit in order to have a complete picture of what transpired at the very moment of the alleged armed robbery. The statement is reliable in that it was made contemporaneously with the incident in an urgent manner which suggests that it was not contemplated in advance or concocted as a falsehood. Whether some of the details contained in the statement are found to be accurate or inaccurate is a decision for another day.

[21] I find the audiotape and transcripts of Ms. Jonathan’s 911 call to be admissible for the truth of their contents. Defense counsel will have an opportunity to cross-examine Ms. Jonathan on her statements, thereby addressing any concerns the defense may have about the veracity of these statements in view of other potentially contradictory evidence.

Morgan J Date: January 11, 2017