R. v. Falconer (C.A.), 2016 NSCA 22

• Judge: MacDonald, C.J.N.S., Beveridge and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 30, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 22;(2016), 372 N.S.R.(2d) 186 (CA)

R. v. Falconer (C.A.) (2016), 372 N.S.R.(2d) 186 (CA);

    1172 A.P.R. 186

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.037

Christopher Alexander Falconer (appellant) v. Her Majesty the Queen (respondent)

(CAC 424542; 2016 NSCA 22)

Indexed As: R. v. Falconer (C.A.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Beveridge and Bourgeois, JJ.A.

March 30, 2016.

Summary:

The accused was convicted by a jury of first degree murder. The Crown and accused had entered into a 32 paragraph Agreed Statement of Facts documented as "Admissions" under s. 655 of the Criminal Code. Section 655 permitted an accused to admit any fact alleged against him without proof of that fact. Twenty-six paragraphs referenced agreement as to the admissibility of evidence, sometimes without the necessity of a voir dire, other times implicitly agreeing that certain expert reports and related documents were admissible. Affidavits were said to be admitted for the truth of their contents. The accused appealed, arguing that the trial judge misinstructed the jury as follows: "1. The trial judge erred in his instructions to the jury by conflating formal admissions with informal admissibility concessions and thereby inappropriately exposed the Jury to legal rationales for admissibility. In particular: a. The jury was inappropriately informed about the voluntariness of Mr. Falconer's inculpatory statements and erroneously instructed that the statements were formal admissions of fact; b. The jury was inappropriately informed that Mr. Falconer's inculpatory text messages were admitted 'for the truth of their contents' and erroneously instructed that the texts were formal admissions of fact; c. The jury was erroneously informed that six expert reports tendered by the Crown were admitted as formal admissions of fact".

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence generally (incl. admissions) - [See Criminal Law - Topic 5264 ].

Criminal Law - Topic 5264

Evidence and witnesses - Admissions - Admissibility - The accused was convicted by a jury of first degree murder - The Crown and accused had entered into a 32 paragraph Agreed Statement of Facts documented as "Admissions" under s. 655 of the Criminal Code - Section 655 permitted an accused to admit any fact alleged against him without proof of that fact - Twenty-six paragraphs referenced agreement as to the admissibility of evidence, sometimes without the necessity of a voir dire, other times implicitly agreeing that certain expert reports and related documents were admissible - Affidavits were said to be admitted for the truth of their contents - The accused appealed, arguing that the trial judge misinstructed the jury as follows: "1. The trial judge erred in his instructions to the jury by conflating formal admissions with informal admissibility concessions and thereby inappropriately exposed the Jury to legal rationales for admissibility. In particular: a. The jury was inappropriately informed about the voluntariness of Mr. Falconer's inculpatory statements and erroneously instructed that the statements were formal admissions of fact; b. The jury was inappropriately informed that Mr. Falconer's inculpatory text messages were admitted 'for the truth of their contents' and erroneously instructed that the texts were formal admissions of fact; c. The jury was erroneously informed that six expert reports tendered by the Crown were admitted as formal admissions of fact" - The Nova Scotia Court of Appeal dismissed the appeal - Since there was no voir dire respecting the accused's statement to police, there was no error in the jury being told that they were voluntary and admissible without a voir dire - As for the expert's reports, the jury would not have understood that they had to accept the contents of those opinions to be true - They were clearly told that they could accept or reject such opinions - Likewise, the jury would not have understood that the actual text messages themselves had to be accepted as true - The accused suffered no prejudice.

Practice - Topic 5331

Trial on agreed statement of facts - General - [See Criminal Law - Topic 5264 ].

Cases Noticed:

R. v. Castellani, [1970] S.C.R. 310, refd to. [para. 41].

R. v. Baksh (K.), [2005] O.T.C. 609 (Sup. Ct.), refd to. [para. 46].

R. v. Baksh (K.), [2005] O.T.C. 1069 (Sup. Ct.), refd to. [para. 47, footnote 2].

R. v. Baksh (K.), [2008] O.A.C. Uned. 61; 2008 ONCA 116, leave to appeal denied (2008), 389 N.R. 395 (S.C.C.), refd to. [para. 47, footnote 2].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [para. 49].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 54].

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. 54].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89, refd to. [para. 56].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 56].

R. v. Piché, [1971] S.C.R. 23, refd to. [para. 57].

R. v. Gauthier, [1977] 1 S.C.R. 441; 10 N.R. 373, refd to. [para. 57].

R. v. Powell, [1977] 1 S.C.R. 362; 9 N.R. 361, refd to. [para. 57].

R. v. Park, [1981] 2 S.C.R. 64; 37 N.R. 501, refd to. [para. 58].

Krishna v. The State, 2011 UKPC 18, refd to. [para. 62].

R. v. Gallant (1982), 70 C.C.C.(2d) 292 (Ont. C.A.), refd to. [para. 62].

R. v. Main (B.J.) (1993), 67 O.A.C. 350 (C.A.), refd to. [para. 62].

R. v. Viszlai (J.G.) (2012), 330 B.C.A.C. 46; 562 W.A.C. 46; 2012 BCCA 442, refd to. [para. 62].

R. v. Thompson, 1998 UKPC 6, refd to. [para. 62].

R. v. Pearce (M.L.) (2014), 310 Man.R.(2d) 14; 618 W.A.C. 14; 2014 MBCA 70, refd to. [para. 63].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 74].

R. v. Morningchild (L.G.) (2011), 510 A.R. 369; 527 W.A.C. 369; 2011 ABCA 215, refd to. [para. 74].

R. v. Gilling (S.M.) (1997), 101 O.A.C. 297 (C.A.), refd to. [para. 103].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 60 (C.A.), refd to. [para. 104].

R. v. Rojas (M.A.) et al. (2008), 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258; 2008 SCC 56, refd to. [para. 104].

R. v. Jacquard (C.O.), [1977] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 112].

R. v. W.J.D. (2007), 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 112].

R. v. Daley - see R. v. W.J.D.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 655 [para. 40].

Counsel:

Lee Seshagiri, for the appellant;

Timothy O'Leary, for the respondent.

This appeal was heard on November 12, 2015, at Halifax, N.S., before MacDonald, C.J.N.S., Beveridge and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal.

On March 30, 2016, Beveridge, J.A., delivered the following judgment for the Court of Appeal.