SUPERIOR COURT OF JUSTICE

RULING

(DEFENCE APPLICATION TO EXCLUDE 911 CALL AUDIO RECORDING)

Judge: [REDACTED]

Introduction

[1] Mr. [REDACTED] is on trial for first degree murder. He admits that he sexually assaulted the deceased and unlawfully caused her death. The defence seeks to exclude the audio recording of a 911 call made by the deceased which records the sexual nature of the assault and the events leading up to her death.

[2] The defence submits that the “stark horror” of listening to the audio would prejudice the jury and such prejudice outweighs any probative value. I advised counsel of my ruling that the audiotape was admissible with reasons to follow. These are my reasons.

The Evidence and the Admissions

[3] Many of the facts are admitted or not in serious dispute.

[4] The deceased made a 911 call from her cell phone but then did not respond to the 911 operator. The line was kept open and a recording made for the next 18 minutes. During that time the police were able to obtain the address of the deceased and officers were dispatched. The arrival of the officers is captured on the audiotape. The deceased had no vital signs and while efforts were made to revive her they were unsuccessful. Mr. [REDACTED] was arrested at the scene. Mr. [REDACTED] admits he tied the hands of the deceased behind her back and that he caused her death after sexually assaulting her. The cause of death was strangulation.

[5] The audio recording is disturbing. The recording contains explicit references to the fact that a sexual assault is ongoing. At various times the deceased is screaming or obviously in pain.

[6] The position of the defence is that, given the numerous admissions which have been made, the only live issue is whether Mr. [REDACTED] had the requisite intent for murder. Specifically, the defence intends to present evidence that Mr. [REDACTED] was impaired by alcohol or drugs such that he lacked the requisite intent to commit murder.

[7] The defence submits that listening to the audiotape will be disturbing to the members of the jury to the point that the prejudicial effect of listening to the audio recording exceeds its probative value as to Mr. [REDACTED]’s intent. The defence submits that the jury should simply be provided with a transcript of the recording.

The Law

[8] There was no disagreement between the parties as to the governing legal principles. I adopt as a convenient summary of the general principles the words of Dambrot J. in R. v. Currie, [2000] O.J. No. 392 (Ont. S.C.J.), para. 5:

[5] In R. v. Foreman, [1996] O.J. No. 1916, Philp J. summarized what has become the usual approach to the admissibility, in particular, of graphic depictions of the deceased in murder cases. At paragraph 11 of his judgment, Philip J. stated:

[11] ... The test, now accepted by our courts, was first enunciated by Doherty J. in Regina v. P.(R.), reflex, (1990), 58 C.C.C. (3d) 334, at page 346-347, where he adopts the approach detailed by Mr. Marc Rosenberg, as he then was, in his paper delivered in November 1989. Mr. Rosenberg sets out three steps that the trial judge must go through in determining the admissibility of any controversial pieces of evidence that may be relevant to the trial.

... the steps which the trial judge must go through are as follows:

1. The judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case including the credibility of witness.

2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue [or I add because of the risk that jury may use the evidence improperly to prove a fact in issue.]

3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions."

Doherty J. notes that the onus is on the accused to demonstrate that the balance favours exclusion of otherwise admissible evidence.

[6] In considering the circumstances in which photographic depictions of the deceased might be relevant, I am assisted by the helpful list of purposes for which such photographs have been admitted in Canadian cases found in the judgment of Chadwick J. in R. v. Schaefler, [1993] O.J. No. 71. The list is comprised of the following:

1) to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;

2) to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;

3) to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;

4) to link the injuries of the deceased to the murder weapon;

5) to provide assistance as to the issues of intent and whether the murder was planned and deliberate;

6) to help the jury determine the truth of the theories put forth by the crown or defense, e.g.: as to which accused committed the crime; as to whether the crime was committed in self-defence.

[7] Of particular pertinence to this case, I note that appellate courts have refused to interfere with the decisions of trial judges to permit the introduction of: coloured photographs of the victim in the blood spattered bathtub where he bled to death as a result of seventeen stab wounds to his head, chest abdomen and arm, and twenty-six lacerations to his head, neck, arms, shoulders and leg (R. v. Kendall, [1987] O.J. No. 388 (C.A.)); explicit photographs of the deceased's body, and a videotape of the scene where the body was found, which included the body during a short part of it (R. v. Bonds reflex, (1991), 49 O.A.C. 156 (C.A.)); a videotape of the scene of a murder which depicted the body of the deceased at two different points (R. v. Nelson, [1996] O.J. No. 2548 (C.A.)); and photographs of the deceased taken during an autopsy, including photographs of the skull of the deceased after the scalp had been removed (R. v. Whitwell, [1991] A.J. No. 1068 (C.A.)).

[8] With respect to prejudice, photographic depictions of a deceased are said to be prejudicial to an accused because they may inflame the minds of members of jury and make them more willing to convict the accused than they would be if they viewed the evidence dispassionately, out of hatred for the accused, or out of sympathy for the family of the victim, as a result of the horrific nature of the crime.

[9] In approaching the issue of prejudice, I confess to sharing the view articulated by LaForme J. in R. v. Kinkead, [1999] O.J. No. 1498. At paragraph 17-18 of his ruling, he stated:

[para17] All of the oral evidence in this trial will describe the brutality of this crime and the jury will know its nature. They will know there was a crime committed that resulted in a considerable amount of blood, damage and death to the two sisters. Indeed, they will know this probability exists when they hear Mr. Kinkead arraigned. In my view, and in my experience, juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. It is certainly true that we live in a time when communications are extraordinarily rapid, comprehensive and complete. The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination. While I would not go so far as to say the Canadian public is totally numb to violence and brutality, I have no hesitation in arriving at the conclusion that it is not always surprised or stunned by it. All of which is to say, I nonetheless continue to believe that we must remain cautious and accept that people can still be horrified and inflamed by what they see. Consequently this exercise continues to be necessary, however, any prejudice alleged must be based upon contemporary common sense and have an air of reality to it.

[para18] It is not sufficient, without proof, to allege a prejudice that is one of mere speculation or conjecture. As I said above, I am of the view that juries are intelligent, well meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.

[10] In this case, I do not believe that the jury, particularly after have been sensitized to the need for impartiality after liberal challenge for cause process, will very likely be induced by the brutality of the crime or the graphic nature of its visual depictions to conclude that Currie committed this crime, or participated in it with Lake, unless they are satisfied of his guilt beyond a reasonable doubt based on properly admissible evidence. Nonetheless, out of an abundance of caution, I will exclude those depictions which I feel will not be of significant assistance to the jury.

Probative Value of Audio Recording as to Intent of Mr. [REDACTED]

[9] Mr. [REDACTED] submitted that listening to the 911 audiotape is relevant because Mr. [REDACTED] can be heard speaking and making demands. As a matter of common sense the manner in which a person speaks can be relevant to the issue of intoxication.

[10] Mr. [REDACTED]’s statements, and his actions insofar as any can be discerned from the tape, occur in the context of the deceased screaming and protesting. At the end of the day the Crown may argue that the persistent behaviour of Mr. [REDACTED] in this context provides evidence of intent and the defence may argue that the persistence suggests someone whose capacities are impaired. It remains that if the jury cannot hear the tape, and so appreciate the volume of the voices on the tape, members of the jury will be unable to consider this context in making its own assessment.

[11] Further, the Crown intends to submit that Mr. [REDACTED] appreciated that the police were knocking on the door and this provided a motive to silence the deceased by killing her. It is relevant to this theory to actually hear the volume of the knocking and then hear what is arguably a change in the ability of the deceased to speak which may relate to the cause of death by strangulation. In other words, did Mr. [REDACTED] respond quickly, and arguably intentionally, to the first knock?

[12] While perhaps a secondary factor, reading a transcript of approximately 7-8 pages, even if side barred with times over the 18 minute duration of the recording, it is very difficult to appreciate the flow of what is happening and how statements and noises relate or do not relate to one another.

[13] In my opinion, there is substantial probative value, relevant to the central issue of intent, in listening to the audio recording.

[14] Further, there are very significant problems with the suggestion the jury rely on a transcript. The police, and then the Crown’s office, prepared a transcript of the 911 call. Certain words are difficult to decipher and there are a substantial number of significant discrepancies between the transcripts. Certain of the words spoken could be relevant to the assessment of Mr. [REDACTED]’s mental state. Without the ability to listen to the audio, members of the jury would have no basis upon which to make a finding as to what words were spoken.

[15] One discrepancy is as to whether Mr. [REDACTED] said “fuck” or simply made a “k” sound upon hearing the first knock at the door by the police. If he said “fuck”, this arguably supports the Crown argument that he heard the knock; realized he might be detected; and so had the motive to kill [REDACTED] to silence her.

[16] Apart from the inability to prepare a reliable transcript of the words that were actually spoken the recording contains various sounds. The transcripts that have been prepared to date describe these sounds using words such as “coughing”, “screaming”, “whispering”, “groaning”, “moaning”, “muffled screaming”, “gurgling”, “thumping”, “banging” and “smacking”. Members of the jury might be left with very different understandings as to the meaning of these words. I think it would be next to impossible to answer a question from the jury directed to explaining the difference between various expressions. If these words are removed and replaced by a neutral term such as “audible sound”, the intelligibility of the transcript is greatly reduced.

Prejudice

[17] [REDACTED] acknowledged that he was in uncharted territory in seeking to exclude evidence of the actual commission of the crime charged. Most of the case law in this area deals with excluding similar fact or other bad character evidence unrelated in time and place to the commission of the crime charged.

[18] [REDACTED] argued that because there are large gaps on the recording when no words are spoken, and there is little or no noise, the jury would be tempted to make up or speculate about what was in fact occurring. I see this as a relatively insignificant consideration. Juries are routinely told that they should not speculate or make up theories without evidence to support it. This jury can be specifically warned that they should not speculate regarding inaudible portions of the recording.

[19] The prejudice attributed to the audio recording must be considered in context. The jury is going to hear evidence that the deceased was badly beaten and then strangled. Even a transcript of the 911 call will make clear at least certain aspects of the sexual assault.

[20] The defence application submits that the audio recording is “disturbing” and of “stark horror”. I think it fair to observe that the crime itself is disturbing and of stark horror. Nothing can change that. The playing of the recording would make the evidence somewhat more vivid and therefore somewhat more disturbing. In other words, in my view the audio recording increases any prejudicial effect only marginally or incrementally as compared to a transcript.

[21] I also agree with Mr. [REDACTED]’s submission that providing the jury with a transcript, when the jury will obviously be well aware that there is an audio recording, carries with it the prospect of a different kind of prejudice. At a general level it would tend to engender the feeling in a juror that evidence being hidden or that the jury was not being trusted. While this can often be a concern, usually when evidence is excluded or edited, the jury is either unaware that this has been done or has only a vague understanding of what is missing. Here the jury would be acutely aware of what was missing and might well surmise it was because of the disturbing content. More specifically, with only the transcript, and knowing that the audio was being withheld, a juror might exaggerate in his or her mind the disturbing nature of the audio.

[22] While a minor factor, I note that the Crown is not seeking to introduce any autopsy related photos. Further, no photos of the deceased were taken at the scene as the focus was on obtaining medical attention. This provides additional context for consideration of how overall prejudice may affect the jury.

Balancing Probative Value Against Prejudicial Effect

[23] For the reasons discussed, listening to the audio, as opposed to reading a transcript, has substantial probative value as to the central issue being the intent of Mr. [REDACTED].

[24] Given that certain words spoken are open to interpretation it would deprive the members of the jury of their ability to find facts if the jury does not have the audio.

[25] The portions of the audio which record sounds cannot reliably be described. If subjective or vague descriptions of sounds are utilized in a transcript, jurors may have different understandings with no means to resolve the difference. If the jury had questions about these subjective descriptions, I would have no means of answering them. Alternatively, if a transcript is provided which reduces all sounds to a generic description, such as “audible sound” the intelligibility and probative value of the transcript plummets.

[26] To the extent there is “stark horror”, it inheres mainly in the nature of the case itself. The jury will be instructed to decide the case on the evidence and the law without prejudice or sympathy. The defence can make submissions at the pre-charge conference as to additional language tailored to this case.

[27] Despite the alike submissions of [REDACTED], in my opinion this is not a close call. The probative value of listening to the audiotape far exceeds any prejudicial effect.

Conclusion

[28] The defence application to exclude the audio recording is, therefore, dismissed.

_________________________

Judge: [REDACTED]

Released: [REDACTED]

CITATION: [REDACTED] v. [REDACTED], [REDACTED]

COURT FILE NO.: [REDACTED]

DATE: [REDACTED]

Released: [REDACTED]