Res Gesta Exception (911 Calls)

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Date Retrieved:	2024-04-27
CLNP Page ID:	2261
Page Categories:	[Evidence Law]
Citation:	Res Gesta Exception (911 Calls), CLNP 2261, <https://rvt.link/7s>, retrieved on 2024-04-27
Editor:	Sharvey
Last Updated:	2023/08/22

R. v. Mullin, 2019 ONCA 890 (CanLII)

[34] The judge ruled that the call was admissible. He noted that Ms. Brent’s utterances were hearsay and presumptively inadmissible, notwithstanding that she was available to be cross-examined at trial. However, the trial judge accepted the Crown’s submission that the 911 call was admissible as res gestae, a traditional exception to the hearsay rule. The call was made at a time when Ms. Brent was in a frantic state of extreme emotion and the risk of concoction or deception in relation to the content of the call could be discounted.

[35] The judge said that the more significant issue was whether the evidence could be adduced in re-examination of the witness. He found:

I am satisfied that the Crown ought to be entitled, in re-examination, to adduce evidence responding to matters raised in cross-examination, in particular, in response to the allegation that she made up evidence about Mr. Mullin saying that he had punched, hit or knocked out Ms. Martin, that she had heard Ms. Martin scream, and that Ms. Martin was quiet and could not talk.

The 911 call includes comments Ms. Brent made to the 911 operator to the effect that Mr. Mullin knocked out Ms. Martin, that she heard a scream and that Mr. Mullin said Ms. Martin was quiet and couldn’t talk because he’d punched her in the head. To this end, they are responsive to the suggestion that Ms. Brent made up the comments she attributed to Mr. Mullin. They not only rebut any suggestion of recent fabrication, but the 911 call is evidence the jury could use to conclude that in fact Mr. Mullin did make the statements attributed to him during the 911 call. [Emphasis in original.]

[36] The judge concluded, however, that only portions of the call should be admitted in evidence – namely those portions of the call that related to matters raised in cross-examination. The Crown would be permitted to play two very small portions of the recording, one to put the call into context and the other to respond to the allegation of fabrication. The defence would be permitted to cross-examine Ms. Brent concerning what she had said in the 911 recording.

...

(1) The res gestae

[40] If used for the truth of the declarant’s (Ms. Brent’s) statements made during the call, the 911 recording was hearsay. It was an out of court statement being admitted for the purpose of establishing that the appellant had said, among other things, that he had “knocked [Ms. Martin] out”.

[41] The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a “statement relating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition”: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a statement to be admissible, “[t]he stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent”: R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff’d 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Nurse, 2019 ONCA 260, at paras. 77-82; Ratten v. The Queen, [1972] A.C. 378 (P.C.).

[42] Here, the threshold for admissibility as res gestae was met as the 911 call was made soon after Ms. Brent’s conversation with the appellant, while the stress of the event was ongoing: see e.g., R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 182 C.C.C. (3d) 393 (Ont. C.A.), at paras. 89-92, leave to appeal refused, [2004] S.C.C.A. No. 225. This was evident in the declarant’s voice and conduct on the call, in which she was highly excited and anxious to get medical assistance for her friend. These circumstances enhanced the reliability of the evidence. The hearsay dangers were also significantly reduced because the declarant was in the witness box, the recorded call was being played to her, and she could be cross-examined concerning what she had said.

R. v. Borel, 2021 ONCA 16 (CanLII)

(c) Spontaneous utterance

[49] On appeal, the respondent also attempts to justify the admission of this evidence as being part of the res gestae. This basis for admitting any of this evidence was not advanced at the trial. It is generally problematic to consider a basis for the admission of evidence that was not dealt with at trial, especially when the basis for admission rests on necessary factual findings that were not fully explored.

[50] The modern expression for the "res gestae" exception to the hearsay rule is "spontaneous utterance": R. v. Nurse (2019), 145 O.R. (3d) 241, [2019] O.J. No. 1636, 2019 ONCA 260, n. 2. There is serious criticism of the use of the term "res gestae" to describe this exception. Indeed, the authors of James H. Chadbourn, ed., Wigmore on Evidence, vol. 6 (Toronto: Little, Brown Book Group Ltd., 1976), at §1767, p. 255, have this to say on the use of the term:

The phrase res gestae has long been not only entirely useless, but even positively harmful. . . . Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.

[51] That said, I do not accept that the evidence could be properly admitted on the basis of spontaneous utterance because, on the evidence before us, there was nothing apparently spontaneous about the complainant's conduct regarding the list of categories of possible attackers. Rather, the nodding or shaking of her head was the result of repeated questioning by the EMS attendant -- repeated questioning that neither of the firefighters recollects having occurred. As Catzman J.A. said in R. v. Aguilar (1992), 1992 CanLII 7727 (ON CA), 10 O.R. (3d) 266, [1992] O.J. No. 1825 (C.A.), at para. 34:

Assuming, without deciding, that Ms. Cooper's submission is correct, I do not consider the statements in the present case to fall within the spontaneous declaration exception to the hearsay rule, for they do not attain the level of spontaneity that is an essential element of that exception. They were made in response to very particular questions . . .

(Emphasis added)