R. v. Calnen (P.T.), (2015) 368 N.S.R.(2d) 129 (SC)

• Judge: Chipman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 17, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 368 N.S.R.(2d) 129 (SC);2015 NSSC 331

R. v. Calnen (P.T.) (2015), 368 N.S.R.(2d) 129 (SC);

    1160 A.P.R. 129

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.040

Her Majesty the Queen v. Paul Trevor Calnen

(CRH No. 426776; 2015 NSSC 331)

Indexed As: R. v. Calnen (P.T.)

Nova Scotia Supreme Court

Chipman, J.

November 17, 2015.

Summary:

The victim died in the accused's home. The accused alleged that she accidentally fell down the stairs and that he panicked and burned her body. The accused pleaded guilty to interfering with human remains at the start of the trial, but not guilty to a charge of second degree murder. At the close of the Crown's case, based entirely on circumstantial evidence, the accused moved for a directed verdict of acquittal on the basis that there was insufficient evidence upon which a properly instructed jury could reasonably find the accused guilty.

The Nova Scotia Supreme Court dismissed the motion. Following a limited weighing of the evidence, the court held that there was some circumstantial evidence on each of the essential elements of the offence of second degree murder. A properly instructed jury might choose to accept some or all of that evidence.

Criminal Law - Topic 4359

Procedure - Charge or directions - Jury or judge alone - Directed verdict of "not guilty" - [See Criminal Law - Topic 4440 ].

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - The victim died in the accused's home - The accused alleged that she accidentally fell down the stairs and that he panicked and burned her body - A forensic examination to determine cause of death was impossible because of the condition of the body - Although the accused pleaded guilty to interfering with human remains, he pleaded not guilty to second degree murder - The issues at trial, determined solely on circumstantial evidence, were whether the Crown's evidence proved causation and intent to commit second degree murder - Much of the circumstantial evidence was post-offence conduct, including the burning of the victim's body - At the close of the Crown's case, the accused moved for a directed verdict of acquittal on the basis that there was insufficient evidence upon which a properly instructed jury could reasonably find the accused guilty - The Nova Scotia Supreme Court dismissed the motion - Following a limited weighing of the evidence, the court held that there was some circumstantial evidence on each of the essential elements of the offence of second degree murder, including causation and intent - There was evidence of a tumultuous domestic relationship between the accused and the victim, that the accused had laid hands on her and that she feared the accused - The court rejected the accused's submission that post-offence conduct could never be used by a trier of fact to support an inference of intent to commit murder - The court also rejected the submission that the lack of any evidence of injury to the body (because it was destroyed by fire) precluded a finding of guilt - See paragraphs 21 to 43.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4440 ].

Cases Noticed:

R. v. Rodgerson (J.) (2015), 473 N.R. 1; 334 O.A.C. 1; 2015 SCC 38, refd to. [para. 3].

R. v. Rowbotham (R.) and Roblin (D.), [1994] 2 S.C.R. 463; 168 N.R. 220; 72 O.A.C. 98, refd to. [para. 8].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 10].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126; 157 D.L.R.(4th) 603, refd to. [para. 13].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 16].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 18].

R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 19].

R. v. Beals (K.J.) (2011), 302 N.S.R.(2d) 358; 955 A.P.R. 358; 2011 NSCA 42, refd to. [para. 20].

R. v. Hill (K.) (2015), 339 O.A.C. 90; 2015 ONCA 616, refd to. [para. 31].

R. v. Svekla (T.G.) (2011), 505 A.R. 252; 522 W.A.C. 252; 2011 ABCA 154, refd to. [para. 35].

Counsel:

Eric R. Woodburn and Susan MacKay, for the Crown;

Peter D. Planetta and Sarah M. White, for the accused.

This motion was heard on November 17, 2015, at Halifax, N.S., before Chipman, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on the same date.