R. v. Calnen (P.T.), 2015 NSSC 330

• Judge: Chipman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 16, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 330;(2015), 368 N.S.R.(2d) 118 (SC)

R. v. Calnen (P.T.) (2015), 368 N.S.R.(2d) 118 (SC);

    1160 A.P.R. 118

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.039

Her Majesty the Queen v. Paul Trevor Calnen

(CRH No. 426776; 2015 NSSC 330)

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

Nova Scotia Supreme Court

Chipman, J.

November 16, 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, in a judgment reported (2015), 368 N.S.R.(2d) 93; 1160 A.P.R. 93, 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. A third voir dire was held to determine the admissibility of text messages sent by the victim to a witness. The text messages were presumptively inadmissible hearsay.

The Nova Scotia Supreme Court, in a judgment reported (2015), 368 N.S.R.(2d) 107; 1160 A.P.R. 107, admitted all of the text messages. Now at issue was whether the expert evidence of a forensic pathologist on the "cause and manner of death, nature of injuries and their significance" was admissible.

The Nova Scotia Supreme Court excluded the evidence. The proposed expert opinion was based on a novel technique with inherent danger. The opinion failed to meet the basic threshold of reliability and approached an opinion on the ultimate issue to be decided by the jury.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See Evidence - Topic 7058 ].

Evidence - Topic 7058

Opinion evidence - Expert evidence - Particular matters - DNA evidence and other types of forensic analysis - The accused was charged with second degree murder and indecently interfering with the human remains of the victim - The accused gave a statement to police and provided a re-enactment of how he said the victim fell to her death from the top of a stairway at his house - Police officers at the scene testified as to the lack of forensic evidence showing any damage to the staircase area as well as the lack of blood or evidence of any clean-up - The Crown sought to admit expert evidence by a forensic pathologist on the "cause and manner of death, nature of injuries and their significance" - The pathologist had not examined the victim's body - The purpose of the evidence was to dispute the accused's version of what happened on the basis that a fall as described by the accused was not usually fatal - The accused opposed admission of the expert opinion as too speculative - The Nova Scotia Supreme Court excluded the expert opinion - The evidence was too speculative - The evidence to be given was based on the Crown's version of events and constituted an attack on the accused's credibility by challenging the plausibility of his version of events - The proposed evidence was based on a novel technique with inherent danger - It failed to meet the threshold reliability requirement and approached the ultimate issue to be decided by the jury - See paragraphs 1 to 41.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - [See Evidence - Topic 7058 ].

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - [See Evidence - Topic 7058 ].

Cases Noticed:

Daubert v. Merrell Down Pharmaceuticals Inc., 113 S.Ct. 2876, refd to. [para. 15].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 15].

R. v. Ranger (R.) (2003), 176 O.A.C. 226; 2003 CarswellOnt 3396 (C.A.), refd to. [para. 15].

R. v. Wood (S.L.) (2007), 426 A.R. 335; 2007 ABQB 503, refd to. [para. 15].

R. v. Klymchuk (K.), [2008] O.T.C. Uned. A39; 2008 CarswellOnt 2832 (Sup. Ct.), refd to. [para. 15].

More v. Bauer Nike Hockey Inc. et al., [2010] B.C.T.C. Uned. 539; 2010 BCSC 539, refd to. [para. 15].

R. v. Schiel (A.) et al. (2012), 314 B.C.A.C. 236; 534 W.A.C. 236; 2012 BCCA 1, refd to. [para. 15].

R. v. Woodcock (L.R.) (2015), 336 O.A.C. 322; 2015 ONCA 535, refd to. [para. 15].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2015), 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, refd to. [para. 15].

R. v. Kelly, Payne and Kelly (1990), 41 O.A.C. 32; 59 C.C.C.(3d) 497 (C.A.), refd to. [para. 18].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 18].

R. v. R.A.D. (1993), 25 B.C.A.C. 206; 43 W.A.C. 206; 80 C.C.C.(3d) 97 (C.A.), refd to. [para. 18].

R. v. Ryan (C.E.) (1993), 26 B.C.A.C. 43; 44 W.A.C. 43; 80 C.C.C.(3d) 514 (C.A.), refd to. [para. 18].

R. v. Haynes (K.J.) (1997), 100 B.C.A.C. 40; 163 W.A.C. 40 (C.A.), refd to. [para. 18].

R. v. A.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 18].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201, refd to. [para. 18].

R. v. Llorenz (A.G.) (2000), 132 O.A.C. 201; 145 C.C.C.(3d) 535 (C.A.), refd to. [para. 18].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 18].

R. v. Warsing (K.L.) (2002), 164 B.C.A.C. 199; 268 W.A.C. 199 (C.A.), refd to. [para. 18].

R. v. Portillo (W.) and Portillo (N.) (2003), 174 O.A.C. 226; 176 C.C.C.(3d) 467 (C.A.), refd to. [para. 18].

R. v. Reid (W.J.) (2003), 167 O.A.C. 336; 2003 CanLII 14779 (C.A.), refd to. [para. 18].

R. v. Liard (M.) et al., [2013] O.T.C. Uned. 5457; 2013 ONSC 5457, refd to. [para. 18].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 21].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, leave to appeal refused (2010), 409 N.R. 397; 276 O.A.C. 398 (S.C.C.), refd to. [para. 22].

R. v. M.C. (2014), 325 O.A.C. 1; 2014 ONCA 611, refd to. [para. 23].

R. v. Orr - see R. v. F.Y.K.O.

R. v. F.Y.K.O. (2015), 368 B.C.A.C. 157; 633 W.A.C. 157; 2015 BCCA 88, refd to. [para. 29].

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 16, 2015, at Halifax, N.S., before Chipman, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on the same date.