Res Gesta Exception (911 Calls)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2261
Page Categories:	[Evidence Law]
Citation:	Res Gesta Exception (911 Calls), CLNP 2261, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/08/22

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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.

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