There has been a lot of litigation in the United States about the admissibility

of 911 recordings since the United States Supreme Court decided Crawford v

Washington. So, Confrontation Clause aficionados might be interested in the following

Canadian analysis:

In R. v. Sylvain, 2014 ABCA 153, May 1, 2014, the accused was convicted of the

offence of sexual assault. At his trial, the Crown introduced a recording of a

911 emergency call made by the complainant, who also testified.  In the 911

call, the complainant said:

Uh, police. Uh, I’m about to be raped by some guy and I, I don’t know how to

fuckin’ deal with it and I can’t get up.

On appeal, the accused argued that the recording of the 911 call constituted

inadmissible hearsay and was improperly used by the trial judge.  The Alberta

Court of Appeal disagreed.

ADMISSIBILITY

The Court of Appeal pointed out, at paragraph 30, that as “a general principle,

res gestae statements are admissible as an exception to the hearsay rule…Res

gestae as a category has been criticized as being an unhelpful generality that

actually encompasses several discrete exceptions to the hearsay rule…That said,

the particular exception involved here relates to ‘excited utterances.’” The

Court of Appeal noted that the “rationale for admitting a statement in this

category for the truth of its contents is that the stress or pressure under

which the statement was made can be said to safely discount the possibility of

concoction…To avoid the prospect of fabrication, the statement should be

reasonably contemporaneous with the alleged occurrence. However, exact

contemporaneity with the event is not required.”

The Court of Appeal indicated that a “review of the case law confirms that 911

calls have often been admitted under the res gestae exception to hearsay…In

today’s information technology world, a 911 call in the middle of a crime is

akin to a cry for help heard by someone nearby. In these circumstances, the

someone nearby happens to be the 911 operator.”

The Court of Appeal concluded that the 911 call was properly admitted as an

“excited utterance” as part of the res gestae.  The Court of Appeal then

considered the “use” made of the 911 call by the trial judge.

THE MANNER IN WHICH AN EXCITED UTTERANCE IS TO BE USED BY TRIAL JUDGES

The Alberta Court of Appeal held, at paragraph 40, that a 911 call “qualifying

as res gestae may be relevant to the time and place of the events, or the

emotional state of those involved: Ratten, supra. To this we would add that a

911 call may also be relevant to the physical state of the person making the

call. In this case, the only issue was consent, and the emotional state of the

complainant, as revealed in the 911 call, was evidence on that point: Dessouza,

supra at para 35. The 911 call was also evidence of the sequence of events and

the physical state of the complainant at the time of the call.”

The Court of Appeal concluded that in this case, the 911 call “had probative

value beyond mere repetition” (at paragraph 43):

In this case, at a minimum, the 911 call had probative value beyond mere

repetition. It was evidence of the sequence and timing of events and both the

emotional state, and physical state, of the complainant at the time of the call.

The trial judge did not indicate in her reasons that she was using the 911 call

as “corroborative” of the complainant’s evidence. The record reveals that the

trial judge was concerned not so much with the complainant’s credibility as with

her reliability and the reasons for the concern had to do with the amount of

alcohol the complainant had consumed. It is important to understand how the

trial judge used the evidence about the 911 call. As the trial judge said about

that call: “That [the complainant] is not slurring or … mumbling is consistent

with the reliability of her testimony of the circumstances leading to the call.”

It was in this limited sense therefore that the trial judge treated the 911 call

as adding weight to the complainant’s in-court testimony. This she was entitled

to do given what the 911 call revealed about the complainant’s emotional and

physical state at the time of the 911 call. Therefore, the trial judge properly

placed it on the scale in assessing the reliability of the complainant’s

in-court testimony as to the circumstances leading to the call.