Nature of the Application

[1] The Crown moved for an order permitting the admission of a 911 call into evidence for the truth of its contents both as an exception to the hearsay rule and on the basis of the principled approach outlined in the leading case of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

[2] The application was denied, with reasons to be provided prior to verdict.

The Facts

[3] The call in question was placed by J.A., the last of six complainants whose complaints form the basis of an 8-count indictment. Mr. Dapena-Huerta is charged with the following offences:

• March 10, 2014, criminal harassment (complainant N.F.);

• March 1–31, 2014, sexual assault and sexual interference (complainant C.C.);

• March 26, 2014, sexual assault (complainant J.C.);

• April 2, 2014, sexual assault (complainant C.O.);

• February 1–March 31, 2014, criminal harassment (complainant K.D.);

• September 23, 2014, sexual assault and sexual interference (complainant J.A.).

[4] J.A. called 911 on September 23, 2014. Her call was placed at 8:41 a.m., seconds after an attacker ran from the scene of the incident. J.A. gave a statement to the police approximately 2 ½ hours after she placed the 911 call. J.A. is available to testify at the trial, just as she was available at the preliminary inquiry.

[5] Crown counsel’s position is that the 911 recording is evidence that should go before the jury because the relevant direct evidence is not available in the same manner. Specifically, some of the detail provided by J.A. during the 911 call about the assailant’s description, the sequence of events and his destination when he left the scene were lost or altered by the time that J.A. testified at the preliminary inquiry. He anticipates that the same situation will occur at trial. Further, the quality of J.A.’s emotional reaction during the call is captured on the recording in a way that will not be revealed through her in-court testimony. Both of these factors are, in counsel’s submission, relevant to the assessment of the credibility and reliability of this complainant.

Analysis

[6] Res gestae statements are typically excited utterances made while the declarant is under the stress of excitement caused by a startling event or condition: D.M. Paciocco & L. Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. Such statements must be made in close enough proximity to the event to preserve their reliability by avoiding opportunity for concoction or the intervention of faulty memory. In this case, the call having been placed by J.A. almost contemporaneously with the conclusion of the attack, the circumstances are such that I am able to conclude that the contents of the call is inherently reliable. The recording reveals that J.A. was in a highly emotional state for the entirety of the call. Her opening words, "I was just sexually assaulted, oh my God" together with the remarks and tone the follow, leave no doubt that she was reacting spontaneously to a shocking event.

[7] By their very nature, 911 calls are often admitted under this established exception to the hearsay rule, provided that the court is able to make the required assessment that the entire circumstances, including contemporaneity with the event itself, excludes the possibility of concoction or distortion: R. v. Brown, 2015 ONSC 4121, 22 C.R. (7th) 118, at paras. 33-34.

[8] Nonetheless, even potential evidence falling into one of the established categories such as res gestae may be inadmissible if the indicia of reliability and necessity are not established: Khelawon, at para. 42. Although Khelawon confirmed that such cases are rare, I have concluded that this is such a case.

[9] The primary reason for excluding the recording is that its admission is not necessary to advance the truth-seeking function of the trial. Every fact that the Crown seeks to put before the jury captured by that 911 call – height, age, build, clothing, timing, sequence of events – are all captured in the statement given to police by J.A. The information is the same in both accounts. Should J.A. forget or provide different information at trial, the Crown may use the police statement to refresh her memory. The defence agrees with that approach. Further, should there be any issue with her memory, the defence is prepared to formally admit the relevant parts of the 911 call. These admissions would include that that an attack took place very shortly before the call was made at 8:21 a.m., the description provided by J.A. of the attacker, and any further facts relevant to the matters at issue in this trial which are only available through the 911 call and not otherwise obtainable from J.A. through her viva voce testimony. The one further remark referenced during the Crown’s argument was that J.A. told the 911 operator that the assailant went toward the public library when he left. The defence is prepared to make that admission as well. As set out in R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 75 Man. R. (2d) 217, 69 C.C.C. (3d) 436, at p. 19, if the accused is willing to make admissions on an issue, the Crown should not be allowed to refuse to accept the admissions in order to “keep an issue alive artificially” for the purpose of having prejudicial evidence admitted. In R. v. Dickson, 2014 ONSC 2385, at para. 21, Molloy, J. referred to the principle articulated in Proctor as being long-standing authority for the proposition that it is not open to the Crown to refuse to accept facts an accused person wants to admit in order to introduce evidence that would not otherwise be admissible.

[10] Crown counsel also argued that the 911 call is important evidence of the emotional and physical state of J.A. immediately following the attack. As I understand the argument, the heightened emotional response of J.A. will assist the triers of fact in accepting as reliable her version of the attack. Referencing the holding in R. v. Byrnes, 2012 ONSC 2090, at para. 28, counsel submitted that the recording reflects J.A.'s immediate emotional reaction to the events and gives a more complete picture of what happened to her on September 23, 2014 than could ever be offered through her testimony. In that regard, the recording is necessary to give the jury the best evidence available.

[11] The main issue in this trial is the identity of the perpetrator of this attack and in the incidents involving the other complainants. The perpetrator was a stranger to the complainants. Defence counsel submitted that he will not be inviting the jury to conclude that the incidents never occurred. In the cross examinations of the five complainants who have testified so far in the trial, he has been challenging their memories and/or suggesting alternatives to their interpretation of events. For example, in the incidents giving rise to the criminal harassment charges, counsel has suggested to the complainants that their interpretation that the perpetrator was following them may be inaccurate. In the incidents giving rise to the other sexual assault charges, he has suggested that the perpetrator may have slipped when coming into contact with the complainants, or been attempting to steal their purse rather than physically touch them. There has never been a suggestion that the events have been entirely fabricated, or that some of these incidents involve mistaken consent. Further, the physical state of J.A. is not an issue in this trial; as she told the 911 operator, she was not physically hurt.

[12] The recording is not the best evidence in this case, because it is not logically probative of any of the key issues that the jury will have to decide. There is no reason for the jury to have to grapple with the emotional state of J.A. For that reason this case is distinguishable from the cases relied on by Crown counsel, in which issues were in play such as consent, self-defence or whether the event triggering the 911 call had even occurred: Byrnes; Brown; R. v. Dessouza, 2012 ONSC 210; R. v. Sylvain, 2014 ABCA 153, 575 A.R. 59; and R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1, 184 O.A.C. 139 (C.A.). In each of those cases, the emotional state of the individual placing the 911 call was important to assessments of credibility and reliability.

[13] For the reasons stated above, the lack of necessity would also prevent the 911 recording from being admitted under the principled case-by-case exception to the hearsay rule.

[14] Although not strictly necessary for the above analysis, I also note that the tone of the recording is highly prejudicial to the accused. The distress of the complainant is likely to evoke sympathetic feelings in the listener. In a jury trial where the jurors have already heard testimony from five women, three of whom were young teenagers at the time of the incidents, this court would be reluctant to permit evidence that may well elevate the risk of a sympathetic response. If I am incorrect that the 911 recording would not be admissible due to lack of necessity, I would still exercise my discretion to omit the recording due to the risk of prejudice to the defence.

Healey J.

Released: November 30, 2017

R. v. Humberto Dapena-Huerta, 2017 ONSC 7129

Case Summary

Nature of the Application

The Facts

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2