R. v. Brideau (A.J.), 2015 NBQB 52

Judge:Walsh, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:January 30, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 52;(2015), 433 N.B.R.(2d) 172 (TD)
 
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R. v. Brideau (A.J.) (2015), 433 N.B.R.(2d) 172 (TD);

    433 R.N.-B.(2e) 172; 1130 A.P.R. 172

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.021

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.021

Her Majesty the Queen v. Armand Joseph Brideau

(NCR-12-13; 2015 NBQB 52; 2015 NBBR 52)

Indexed As: R. v. Brideau (A.J.)

Répertorié: R. v. Brideau (A.J.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Walsh, J.

February 23, 2015.

Summary:

Résumé:

The 88 year old accused was committed to stand trial for sexual offences alleged to have occurred in the period 1990-1995. He elected trial by judge and jury. The accused's counsel raised the issue of the accused's fitness to stand trial. The court directed that the special issue of "fitness" be tried by a jury. The accused did not testify at the special issue jury trial. His counsel called two witnesses, being the accused's eldest son and a psychiatrist. There were a number of out of court statements of the accused put before the jury without objection as to admissibility. Some were made to or in the presence of his son and some were made during interviews with the psychiatrist called by the accused. During the pre-charge conference the court ruled that certain out of court statements made by the accused, which had been admitted before the jury for other purposes, could not be used by them for their truth. The court reserved the right to provide fuller reasons for its ruling.

The New Brunswick Court of Queen's Bench, Trial Division, provided fuller reasons for its ruling.

Criminal Law - Topic 92.3

General principles - Mental disorder - General - Preliminary trial of issue of fitness - [See Criminal Law - Topic 107 ].

Criminal Law - Topic 107

General principles - Mental disorder - Insanity, automatism, etc. - Evidence - The 88 year old accused was committed to stand trial for sexual offences alleged to have occurred in the period 1990-1995 - He elected trial by judge and jury - The accused's counsel raised the issue of the accused's fitness to stand trial - The court directed that the special issue of "fitness" be tried by a jury - The accused did not testify at the special issue jury trial - There were a number of out of court statements of the accused put before the jury without objection as to admissibility - Some were made to or in the presence of the accused's son (the son testified as to unusual or sometimes bizarre statements of the accused made to him or in his presence or overheard by him) - Other statements were made during three interviews with a psychiatrist - During the pre-charge conference, the court ruled that certain out of court statements made by the accused, which had been admitted before the jury for other purposes, could not be used by them for their truth - The court ruled that: i. All statements made by the accused to the psychiatrist during the three interviews were hearsay and had only been admissible so as to reveal to the jury the sources of information upon which the expert opinion rested; ii. The testimony of the accused's son as to having had to reintroduce his father to the lawyer each time they met and of having had to interject to correct information his father was giving to the lawyer or to provide information to the lawyer his father should have known, was hearsay by reason of the implied assertions contained therein and could not be relied upon for the truth of those assertions; and iii. The son's other testimony as to what his father either told him or said in his presence or was overheard by the son, was admissible for its substantive worth under the common law "state of mind" exception to the rule against hearsay - The New Brunswick Court of Queen's Bench, Trial Division, provided fuller reasons for its ruling.

Criminal Law - Topic 4349.1

Procedure - Jury - Evidence - Out-of-court statements - [See Criminal Law - Topic 107 ].

Evidence - Topic 1232

Relevant facts - Relevance and materiality - State of mind - Statements by accused - [See Criminal Law - Topic 107 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Criminal Law - Topic 107 ].

Evidence - Topic 1507

Hearsay rule - General principles and definitions - What constitutes hearsay - Implied assertions - [See Criminal Law - Topic 107 ].

Evidence - Topic 1671

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements by an accused - [See Criminal Law - Topic 107 ].

Droit criminel - Cote 92.3

Principes généraux - Troubles mentaux - Généralités - Instruction préliminaire de la question de l'aptitude de l'accusé à subir son procès (y compris les "déclarations protégées") - [Voir Criminal Law - Topic 92.3 ].

Droit criminel - Cote 107

Principes généraux - Troubles mentaux - Aliénation mentale, automatisme, etc. - Preuve (y compris fardeau de la preuve) - [Voir Criminal Law - Topic 107 ].

Droit criminel - Cote 4349.1

Procédure - Jury - Preuve - Déclarations extrajudiciaires - [Voir Criminal Law - Topic 4349.1 ].

Preuve - Cote 1232

Faits pertinents - Pertinence et caractེre déterminant - ༄༅tat d'esprit - Déclarations par le prévenu - [Voir Evidence - Topic 1232 ].

Preuve - Cote 1504

Règle du ouï-dire - Principes généraux et définitions - Ouï-dire - En quoi consiste - [Voir Evidence - Topic 1504 ].

Preuve - Cote 1507

Règle du ouï-dire - Principes généraux et définitions - Affirmations implicites - [Voir Evidence - Topic 1507 ].

Preuve - Cote 1671

Rེgle du ouཿ-dire - Exceptions et exclusions - Déclarations d'un prévenu - [Voir Evidence - Topic 1671 ].

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 10].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 11].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 11].

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 11].

R. v. Campbell (1977) 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 12].

Subramanian v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 12].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 17].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 18].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 18].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 20].

R. v. Baltzer (1974), 10 N.S.R.(2d) 561; 2 A.P.R. 561; 27 C.C.C.(2d) 118 (C.A.), dist. [para. 22].

R. v. Kirkby (1985), 10 O.A.C. 356; 21 C.C.C.(3d) 31 (C.A.), dist. [para. 22].

R. v. Giesbrecht (E.H.), [1994] 2 S.C.R. 482; 168 N.R. 191; 95 Man.R.(2d) 309; 70 W.A.C. 309; 91 C.C.C.(3d) 230, dist. [para. 22].

R. v. Edgar (D.J.) (2000), 128 O.A.C. 125; 142 C.C.C.(3d) 401 (C.A.), dist. [para. 22].

R. v. Perras (1972) 8 C.C.C.(2d) 209 (B.C.C.A.), affd. [1974] S.C.R. 659, refd to. [para. 23].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan, The Law of Evidence in Canada (2nd Ed. 1999), generally [para. 12].

Watt, David, Watt's Manual of Criminal Evidence (2014), p. 374 [paras. 11, 19, 24].

Counsel:

Avocats:

Melanie MacAulay and Michel Allain, for the Crown;

Leslie Matchim, for the accused.

This matter was heard on January 30, 2015, before Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following reasons for ruling on February 23, 2015.

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