R. v. Burns (T.), (2014) 360 N.S.R.(2d) 81 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 11, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 360 N.S.R.(2d) 81 (SC);2014 NSSC 436

R. v. Burns (T.) (2014), 360 N.S.R.(2d) 81 (SC);

    1135 A.P.R. 81

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.013

Her Majesty the Queen v. Timothy Burns

(CRH No. 414664; 2014 NSSC 436)

Indexed As: R. v. Burns (T.)

Nova Scotia Supreme Court

Rosinski, J.

December 11, 2014.

Summary:

Burns was charged that he committed a sexual assault on KJA on June 16, 2011. On the same day, but after the alleged assault occurred, KJA sent text messages from her mobile phone to Burns and Burns sent text messages from his mobile phone to KJA. KJA reported the alleged incident to police around midnight on June 17-18, 2011. Cst. Parasram authored an initial officer's report in which he noted that, according to KJA, Burns had sent texts to KJA apologizing, and suggesting that they move on. On June 23, 2011, KJA provided a videotaped police statement to Det. Cst. MacDonald, who seized KJA's phone on June 28, 2011. At the time, none of the text messages from KJA to Burns were visible on her phone. KJA believed that her phone had automatically deleted those messages. Police carried out a forensic analysis of her phone. The only text messages found were those that KJA alleged were sent to her by Burns. Burns admitted in his November 8 and 9, 2011 statements to police, that he had deleted all of the text messages he received from, and sent to, KJA regarding this matter. The text messages that KJA acknowledged she sent to Burns were irretrievable and unavailable for trial. What remained as potential evidence at the trial were only the text messages from Burns to KJA, and their respective recollections of the content of KJA's texts to Burns. Burns argued that the destruction by KJA of the text messages existing on her phone on June 16, 2011, or the unacceptable negligence regarding their loss by police, constituted a breach of his s. 7 Charter right to make full answer and defence. He also argued that his right to a fair trial would be violated pursuant to s. 11(d) of the Charter. As a remedy, he sought either a stay of proceedings in relation to the criminal charge; or a court order excluding the existing text messages from being presented as evidence by the Crown and any references that Burns made to them in his police statement on November 8, 2011; and that KJA not be permitted to refer to them in her testimony at trial.

The Nova Scotia Supreme Court dismissed the defence motions.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Burns was charged that he committed a sexual assault on KJA on June 16, 2011 - On the same day, but after the alleged assault occurred, KJA sent text messages from her mobile phone to Burns and Burns sent text messages from his mobile phone to KJA - KJA reported the alleged incident to police around midnight on June 17-18, 2011 - Cst. Parasram authored an initial officer's report in which he noted that, according to KJA, Burns had sent texts to KJA apologizing, and suggesting that they move on - On June 23, 2011, KJA provided a videotaped police statement to Det. Cst. MacDonald, who seized KJA's phone on June 28, 2011 - At the time, none of the text messages from KJA to Burns were visible on her phone - KJA believed that her phone had automatically deleted those messages - Police carried out a forensic analysis of her phone - The only text messages found were those that KJA alleged were sent to her by Burns - Burns admitted in his November 8 and 9, 2011 statements to police, that he had deleted all of the text messages he received from, and sent to, KJA regarding this matter - The text messages that KJA acknowledged she sent to Burns were irretrievable and unavailable for trial - What remained as potential evidence at the trial were only the text messages from Burns to KJA, and their respective recollections of the content of KJA's texts to Burns - Burns argued that KJA's destruction of the text messages existing on her phone on June 16, 2011, or the unacceptable negligence regarding their loss by the police, constituted a breach of his s. 7 Charter right to make full answer and defence - He also argued that his right to a fair trial would be violated pursuant to s. 11(d) of the Charter - As a remedy, he sought either a stay of proceedings or a court order excluding the existing text messages from being presented as evidence by the Crown and any references that Burns made to them in his police statement on November 8, 2011, and that KJA not be permitted to refer to them in her testimony at trial - The Nova Scotia Supreme Court dismissed the defence motions - With respect to s. 7 of the Charter, there was no duty on Cst. Parasram to view the text messages and seize the phone - Cst. Parasram's actions or inactions did not amount to negligence, much less so, to unacceptable negligence - The court also concluded it was more likely than not that KJA did not deliberately delete her text messages to Burns - Although a defence motion premised on s. 11(d) of the Charter would normally place the onus on the accused to have excluded as evidence in the trial the text messages and references in Burns' police statement, the evidence here would be presented at trial by the Crown - It was therefore the Crown upon which such onus lay in this hearing - That onus included persuading the court that the probative value of the evidence outweighed its prejudicial effect - The Crown had shown that the probative value of Burns' text messages to KJA outweighed the prejudice to his fair trial rights should the text messages be admitted as evidence - As to what was said by KJA in her text messages, the jury would have available to it the testimony of KJA, including her cross-examination by defence counsel, and the references in Burns' police statement to what he recalled on July 21, 2011, that KJA wrote to him in text messages on June 16, 2011 - See paragraphs 112 to 153.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - [See Civil Rights - Topic 3133 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - [See Civil Rights - Topic 3133 ].

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - [See Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, consd. [para. 1].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 17].

R. v. TELUS Communications Co., [2013] 2 S.C.R. 3; 442 N.R. 1; 2013 SCC 16, refd to. [para. 18].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 19].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 22].

R. v. Wittwer - see R. v. D.H.W.

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 22].

R. v. R.R.D.G., [2014] N.S.R.(2d) Uned. 31; 2014 NSSC 78, refd to. [para. 93].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 95].

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215; 563 A.P.R. 215; 142 C.C.C.(3d) 540; 2000 NSCA 35, refd to. [para. 95].

R. v. Ferris (J.M.), [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, affing. (1994), 149 A.R. 1; 63 W.A.C. 1; 27 C.R.(4th) 141 (C.A.), refd to. [para. 102].

R. v. Yates (W.F.) (2011), 499 A.R. 252; 514 W.A.C. 252; 2011 ABCA 43, refd to. [para. 102].

R. v. M.N.P. (2012), 276 Man.R.(2d) 183; 2012 MBQB 61, refd to. [para. 102].

R. v. Soulliere [2013] O.J. No. 3174 (Prov. Ct.), refd to. [para. 102].

R. v. Rafferty 2012 ONSC 742, refd to. [para. 102].

R. v. Boliver (R.T.) (2014), 352 N.S.R.(2d) 277; 1112 A.P.R. 277; 2014 NSCA 99, refd to. [para. 112].

R. v. Abukar (M.A.) (2009), 472 A.R. 328; 2009 ABPC 136, refd to. [para. 112].

Selensky v. Slywka, [2014] A.R. Uned. 134; 2014 ABPC 14, refd to. [para. 112].

R. v. Gill (J.S.) (2014), 448 Sask.R. 182; 2014 SKQB 176, refd to. [para. 112].

R. v. Hart (N.L.) (2014), 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, refd to. [para. 116].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 125].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 131].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 134].

R. v. Pearce (M.L.) (2014), 310 Man.R.(2d) 14; 618 W.A.C. 14; 2014 MBCA 70, refd to. [para. 134].

R. v. Spackman (K.) (2012), 300 O.A.C. 14; 2012 ONCA 905, refd to. [para. 134].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 147].

R. v. Alcantara (J.R.) (2014), 577 A.R. 381; 613 W.A.C. 381; 2014 ABCA 255, refd to. [para. 147].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 9]; sect. 24(1) [para. 22].

Counsel:

Glenn Hubbard, for Her Majesty the Queen;

Stanley MacDonald, Q.C., for Mr. Burns.

These motions were heard on August 6 and November 25 and 26, 2014, in Halifax. N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 11, 2014.