R. v. Burns (M.G.), (2016) 480 Sask.R. 106 (CA)

• Judge: Caldwell, Jackson and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 12, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 480 Sask.R. 106 (CA);2016 SKCA 67

R. v. Burns (M.G.) (2016), 480 Sask.R. 106 (CA);

    669 W.A.C. 106

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. MY.065

Martin Gilbert Burns (appellant) v. Her Majesty the Queen (respondent)

(CACR2652; 2016 SKCA 67)

Indexed As: R. v. Burns (M.G.)

Saskatchewan Court of Appeal

Caldwell, Jackson and Herauf, JJ.A.

May 12, 2016.

Summary:

The accused was convicted of unlawful confinement, using a firearm while committing an indictable offence, and two counts of uttering threats. The accused appealed on the grounds that the trial judge erred in admitting and relying on hearsay evidence consisting of text messages between the complainant and her sister and an audio recording of the complainant's statement to the R.C.M.P. minutes after the incident giving rise to the charges. At trial, the complainant was a reluctant witness and recanted her out-of-court statements. The accused also argued that the verdict was unreasonable and unsupported by the evidence.

The Saskatchewan Court of Appeal dismissed the appeal. The hearsay evidence was admissible under the principled exception to the hearsay rule as being both necessary and reliable. The verdict was not unreasonable or unsupported by the evidence.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused and his girlfriend (17 year old complainant's mother) were drunk and arguing - The complainant texted her sister that the accused had a rifle and threatened to kill himself - Later, she texted that he put the gun away - Still later, she texted that the accused retrieved the gun and threatened to shoot her and her mother if they left - The sister's husband contacted police, who went to the accused's house and arrested him - Minutes after the event, the complainant gave an audio recorded statement to police as to what transpired - At trial, the complainant was a reluctant witness and recanted what she said in the texts and statement - She had no motive to lie, yet testified that she lied to her sister but offered no explanation as to why - The trial judge ruled that the texts and statement (hearsay evidence) were admissible as they were both necessary and met the threshold reliability - The texts and statements were consistent and corroborated by independent evidence - The trial judge found the complainant's hearsay evidence credible and her recantation not credible - Based on the whole of the evidence, the trial judge found the accused guilty of unlawful confinement, using a firearm while committing an indictable offence, and two counts of uttering threats - The accused appealed on the grounds that the trial judge erred in admitting and relying on the hearsay evidence and that the verdict was unreasonable and unsupported by the evidence - The Saskatchewan Court of Appeal dismissed the appeal - There was no error in admitting the texts and statement as necessary and reliable - There was sufficient admissible evidence to support the material facts found and the inferences drawn by the trial judge - The verdict was one that a properly instructed trier of fact could have reasonably arrived at - See paragraphs 10 to 46.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 4865 ].

Counsel:

James Streeton, for the appellant;

W. Dean Sinclair, Q.C., for the respondent.

This appeal was heard on January 19, 2016, before Jackson, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal.

On May 12, 2016, Caldwell, J.A., delivered the following judgment for the Court.