R. v. Calnen (P.T.), (2015) 368 N.S.R.(2d) 93 (SC)

Judge:Chipman, J.
Court:Supreme Court of Nova Scotia
Case Date:November 02, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 368 N.S.R.(2d) 93 (SC);2015 NSSC 318
 
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R. v. Calnen (P.T.) (2015), 368 N.S.R.(2d) 93 (SC);

    1160 A.P.R. 93

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Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.037

Her Majesty the Queen v. Paul Trevor Calnen

(CRH No. 426776; 2015 NSSC 318)

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

Nova Scotia Supreme Court

Chipman, J.

November 2, 2015.

Summary:

The accused was charged with second degree murder and indecently interfering with the human remains of the victim. At issue on a voir dire was the admissibility of statements made to the police as to the location of the victim's ashes and a subsequent re-enactment of how the victim died.

The Nova Scotia Supreme Court, in a judgment reported (2015), 366 N.S.R.(2d) 71; 1154 A.P.R. 71, determined that the statements were admissible as voluntarily made without threats or promises, oppression or other police trickery. The issue of weighing the prejudicial effect of these statements against their probative value was deferred.

The Nova Scotia Supreme Court admitted only those portions of the statements made after the victim's mother entered the interview room. All portions prior to that were limited to police monologues in the questioning process, consisting of police allegations (accused a monster and snapped), theories, hearsay and irrelevant evidence. The substantial prejudicial value of this portion of the recorded statement clearly outweighed its limited probative value.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5357 ].

Criminal Law - Topic 5357

Evidence and witnesses - Confessions and voluntary statements - Exclusion of irrelevant or prejudicial portions (editing) - The accused was charged with second degree murder and indecently interfering with the human remains of the victim, a woman he was in a relationship with - After hours of questioning the accused without success, the police brought the victim's mother into the interview room for 35 minutes - She pleaded with the accused to reveal the location of the victim's body - After the mother left, the questioning continued - The accused then revealed how the victim died, where her remains were located, and agreed to re-enact how the victim died - The statements were found to have been voluntarily made - Now at issue was admission of the statements, specifically whether the probative value of the statements outweighed their prejudicial effect - The Nova Scotia Supreme Court held that the video-taped portion of the police questioning up until the victim's mother was brought into the interview room was excluded from evidence - Up until then, the questioning was limited to police monologues containing police allegations (accused a monster and snapped), theories, hearsay and irrelevant evidence, with no substantive response by the accused - The substantial prejudicial value of this portion of the recorded statement clearly outweighed its limited probative value - Once the victim's mother entered the room, there started a contextual statement which had high probative value that outweighed any prejudicial effect on the accused - Starting at that point, the statements were admitted - Likewise, the statements respecting the accused's re-enactment of the crime were also admitted - The court requested counsels' input on the crafting of instructions to the jury on how to deal with evidence of post-offence conduct.

Cases Noticed:

R. v. Weaver (1966), 51 Cr. App. R. 77, refd to. [para. 12].

R. v. Kanester (1966), 48 C.R. 352 (B.C.C.A.), refd to. [para. 12].

R. v. Beatty, [1944] S.C.R. 73, refd to. [para. 12].

R. v. White (M.J.) (2006), 408 A.R. 1; 2006 ABQB 788, refd to. [para. 13].

R. v. Greenwood (L.D.) (2014), 350 N.S.R.(2d) 315; 1105 A.P.R. 315; 2014 NSCA 80, refd to. [para. 15].

R. v. Barges (R.), [2005] O.T.C. 1116; 2005 CanLII 47766 (Sup. Ct.), refd to. [para. 19].

R. v. C.T., 2015 ONCJ 299, refd to. [para. 23].

R. v. Rodgerson (J.) (2015), 473 N.R. 1; 334 O.A.C. 1; 2015 SCC 38, refd to. [para. 37].

Counsel:

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

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

This matter was heard on November 2, 2015, at Halifax, N.S., before Chipman, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on the same date.

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