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Hearsay is a statement made outside of a courtroom that either the defence or Crown, or both, want admitted into evidence for the truth of its contents. Hearsay is presumptively inadmissible, and a voir dire must be conducted in the absence of a jury to determine the admissibility of the statement. Therefore, because 911 calls are made outside of a courtroom, they are presumed inadmissible. However, there are always exceptions when it comes to the rules of evidence in Canadian law.
911 calls may be admitted if they fall under the res gestae exception to hearsay. Alternatively, they may also be admitted if they meet the threshold of reliability and necessity under the principled approach.
One of the essential pillars in Canadian criminal trials is the defence’s or Crown’s opportunity to cross-examine witnesses. The dangers of hearsay, including 911 calls, are the following factors that may have influenced the caller’s statement:
If there is an absence of a contemporaneous opportunity to cross-examine the declarant and their statement under oath, these issues with hearsay emerge. Cross-examination is required to properly explore these issues and give a proper context to the statement.
The declarant can be confronted with their previous 911 call statement with:
When the individual who made the 911 call is present to testify in court, their call may not be admitted into evidence. This is because, typically, what they testify to in court is accepted into evidence, and it is up to the judge or jury to decide whether they are telling the truth after the witness has been questioned by both the Crown and the defence.
If a 911 call is being admitted for its contents being the truth and the declarant cannot be contemporaneous cross-examined, it will be considered hearsay. If the declarant is called as a witness, the 911 call may be played in court for the Crown or defence to test the statement. For instance, a witness may testify in court and contradict the 911 statement. The defence may want the 911 call admitted into evidence to show that the witness is not credible because of their conflicting statements. Other times, the Crown may want the witness to adopt what was said in their 911 call as the truth and are therefore deceptive in court. However, usually a witness’ 911 call will not be played in court.
It depends on the situation. The 911 tapes can be admissible under the res gestae exception or the principled exception. Under both exceptions, the statements are admitted into a trial for the truth of their contents.
A statement made during a 911 call can be an exception to the hearsay rule as part of the res gestae exception provided the possibility of fabricating, concocting, or deceiving is carefully discounted. The rationale for admitting a 911 call under this exception is that if declarants made the statement relating to a startling event, such as a crime in progress, the stress or pressure they were under may not have contributed to fabricating their statement. To avoid the possibility of fabrication and admission under the res gestae exception, the statement should be made contemporaneously with the alleged crime in progress. However, this is not always required. If the statement was not made while the declarant was observing the crime in progress and relaying it to the 911 operator in real-time, there is a possibility it can still be admitted. One factor the court will consider is how close in time the statement was made to the observation of the crime in order to determine its validity.
Recently, the Ontario Court of Appeal in R v Camara outlined the governing principles under the res gestae exception:
[84] Whether they are received as a true exception to the hearsay rule - thus as evidence of the truth of what was said - or as original evidence not reached by the hearsay rule, statements admitted under res gestae include:
i. spontaneous statements or excited utterances;
ii. statements accompanying and explaining an act which can be properly evaluated as evidence only if considered in conjunction with the statement; and
iii. statements relating to a physical sensation or mental state, such as intention or emotion.
[85] The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant's mind remained under the domination of that event. In other words, the trigger mechanism for the statement - the event - was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-1.
Under the principled exception, the Supreme Court of Canada ruled that hearsay can be admitted if it is both reasonably necessary and sufficiently reliable. For example, if reasonable efforts were taken to obtain the direct evidence of the witness in court but the witness is not present themselves in court, it is therefore necessary to have the 911 call admitted as evidence. The statement, however, must also be reliable.
Reliability of the statement must also be proven by the party who wants the 911 call admitted for the truth of its contents under this exception. Because the declarant is not in court to have their direct evidence tested, the Crown and defence cannot investigate the 911 caller’s perception, memory, narration, or sincerity of their evidence, collectively known as the dangers of hearsay. Reliability must be sufficient to overcome these dangers that cannot be cross-examination. The court will consider whether the statement is inherently trustworthy by examining:
Not always. Typically, police will need to collect more evidence of an alleged crime before laying a criminal charge against a suspect, and only in rare circumstances will the existence of a 911 call be enough for the Crown to proceed in prosecuting the accused. The totality of all the evidence, including physical evidence the police gathered after the alleged crime, such as the 911 call and other witness statements, is always considered when the Crown is deciding whether to proceed with the charges against a suspect.
In 2017, a 911 call by a witness was relevant to proving the identity of the defendant in an alleged robbery and the Crown wanted it admitted under an exception to the hearsay rule.
When the witness called 911, he answered some of the operator’s questions by asking another person first, and his view of the alleged robbery was obstructed by a bush. The judge found there was a strong possibility the witness concocted or fabricated his statement to the operator. The call, therefore, did not meet the res gestae test and was not admitted into evidence against the defendant.
The court also considered whether the call could be admitted under the principled approach. First, when testifying in court the witness could not recall any events. Accordingly, the court found the 911 call was necessary. However, the court did not find the call reliable, and the call was not admitted under the principled approach against the defendant.
R. v. K.L., 2017 ONCJ 720
In 2019, Jason Spiers called 911 during a home invasion. While on the call, he answered the operator’s questions about the description of the intruders and what weapons they had. He succumbed to injuries that were inflicted during the home invasion, and therefore could not testify at the accused’s trial. In his ruling, the judge admitted the 911 call under both the res gestae exception and the principled exception to hearsay.
The call was admitted under the res gestae exception because the judge found the invasion was an overwhelming and an unusual event, and that Jason “was clearly alarmed and frightened.” This made his statement to the 911 operator reliable because his mind was “still dominated by the recent events” while he was talking to the operator, and he would not have been able to fabricate any of his answers.
Having established reliability, Jason could not testify at the trial and the necessity requirement was established for the call to also be admitted under the principled exception.
R. v. Kearsey, 2021 SKPC 11
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