R. v. Finck (L.R.) et al., 2007 NSCA 32

• Judge: MacDonald, C.J.N.S., Bateman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 15, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 32;(2007), 253 N.S.R.(2d) 267 (CA)

R. v. Finck (L.R.) (2007), 253 N.S.R.(2d) 267 (CA);

    807 A.P.R. 267

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. MR.053

Carline Antonia VandenElsen and Lawrence Ross Finck (appellants) v. Her Majesty the Queen (respondent)

(CAC 246654; 2007 NSCA 32)

Indexed As: R. v. Finck (L.R.) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Bateman and Cromwell, JJ.A.

March 27, 2007.

Summary:

Finck and VandenElsen were arrested following an armed standoff with police at a Halifax residence. They were each charged with, inter alia, abduction of a child in contravention of a custody order, unlawful confinement and obstructing police. Finck was also charged with a series of related firearm offences. A jury convicted them of several of the offences. The accused were sentenced accordingly (see 236 N.S.R.(2d) 62; 749 A.P.R. 62). The accused appealed their convictions and sentences.

The Nova Scotia Court of Appeal dismissed the appeals.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assistance by counsel - Finck and VandenElsen were convicted of a number of offences arising from an armed standoff with police at a Halifax residence - The accused were initially self-represented - During proceedings they obtained counsel, but discharged their counsel before proceedings were completed - In both cases the trial judge cautioned the parties against discharging their counsel - The accused appealed their convictions, alleging ineffective assistance of counsel - The Nova Scotia Court of Appeal rejected this ground of appeal, stating that nothing in the record substantiated either of the accused's claims of prejudice to their fair trial rights - See paragraphs 137 to 142.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - Finck and VandenElsen were arrested following an armed standoff with police at a Halifax residence - They were each charged with, inter alia, abduction of a child in contravention of a custody order, unlawful confinement and obstructing police - Finck was also charged with a series of related firearm offences - A jury convicted them of several of the offences - The accused appealed, alleging bias on the part of the trial judge through repeated subjective and selective rulings of law and fact directing the jury to pre-designed conclusions of guilt accumulating into a miscarriage of justice - The Nova Scotia Court of Appeal rejected this ground of appeal, holding that the accused's allegations of bias were totally without merit - See paragraphs 76 to 84.

Criminal Law - Topic 440

Disobedience and obstruction - Disobedience of court order - Finck and VandenElsen were arrested following an armed standoff with police at a Halifax residence, where the police had attended to enforce a child protection order - They were convicted of numerous Criminal Code offences including obstruction of a police officer in the lawful execution of his duty (s. 129(a)) - The accused appealed, arguing that the trial judge erred in law by deciding that as a matter of law that "the police were not on trial, and engaged in the lawful execution of their duty" and "the civil [child protection] order was valid beyond question or inquiry" - The Nova Scotia Court of Appeal rejected this ground of appeal - The court held that the trial judge was correct in holding that the protection order could not be challenged in the criminal proceedings because to allow such a challenge would violate the rule against collateral attack - Also, in the circumstances of this case, the issue of the lawful authority of the police, as it related to the validity of the protection order, was a question of law, appropriately decided by the judge - See paragraphs 57 to 75.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - Finck and VandenElsen were arrested following an armed standoff with police at a Halifax residence - They were charged with numerous Criminal Code offences including forcible confinement and child abduction (the original information) - Although the Crown asked the preliminary inquiry judge to commit the accused on additional charges, the accused were committed to stand trial but only on the charges contained in the original information - The Crown therefore preferred an indictment containing the additional charges - The trial judge refused a request by the accused to quash the indictment and the trial proceeded on all charges resulting in a number of convictions - The accused appealed, arguing the trial judge erred in law in permitting the Crown to prefer the indictment where the Crown had sought committal on those offences at the preliminary inquiry and the justice had declined to commit - The Nova Scotia Court of Appeal held that this ground of appeal was without merit - See paragraphs 26 to 56.

Criminal Law - Topic 4325

Procedure - Jury - General - Discharge of juror - Finck and VandenElsen were convicted of a number of offences arising from an armed standoff with police at a Halifax residence - The accused appealed, arguing that the judge's refusal to discharge a particular juror (Juror P) and the procedure used to determine whether the juror should be dismissed resulted in an unfair trial and a miscarriage of justice - In particular, the accused argued that Juror P should have been segregated from the other jurors from the time the juror was questioned about alleged misdoings until the judge made his decision on whether to discharge him - The Nova Scotia Court of Appeal rejected this ground of appeal, holding that it was not persuaded that the inquiry conducted by the judge was inadequate or that the judge erred in accepting the juror's denials of wrongdoing - The court stated that while it would have been prudent for the trial judge to have kept the juror separate from the other jurors pending his decision on discharge, in these circumstances the court could not conclude that the failure to segregate the juror in question impaired the accused's right to a fair trial - The judge having accepted the juror's denials of the alleged misdoing, he could not have contaminated the other jurors - See paragraphs 123 to 136.

Criminal Law - Topic 4438

Procedure - Verdicts, discharges and dismissals - Inconsistent verdicts - Finck and VandenElsen were arrested following an armed standoff with police at a Halifax residence - They were each charged with, inter alia, abduction of a child in contravention of a custody order, unlawful confinement and obstructing police - Finck was also charged with a series of related firearm offences - A jury convicted them of several of the offences - The accused appealed, alleging inconsistent verdicts - The Nova Scotia Court of Appeal rejected this ground of appeal - See paragraphs 143 to 154.

Criminal Law - Topic 4867

Appeals - Indictable offences - Grounds of appeal - Bias - [See Courts - Topic 686 ].

Criminal Law - Topic 5412

Evidence and witnesses - Witnesses - Subpoena or summons - General - Finck and VandenElsen were arrested following an armed standoff with police at a Halifax residence - They were each charged with, inter alia, abduction of a child in contravention of a custody order, unlawful confinement and obstructing police - Finck was also charged with a series of related firearm offences - A jury convicted them of several of the offences - The accused appealed, arguing that the trial judge erred in law in not permitting the defence to call approximately 15 witnesses (i.e., that they were prevented from issuing subpoenas for a number of witnesses) - The Nova Scotia Court of Appeal rejected this ground of appeal holding that it was without merit - See paragraphs 115 to 121.

Criminal Law - Topic 5877

Sentence - Dangerous or careless use of firearm - [See second Criminal Law - Topic 5904 ].

Criminal Law - Topic 5888

Sentence - Resisting or obstructing a peace officer - [See both Criminal Law - Topic 5904 ].

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - Following a 67 hour armed stand-off with police who were attempting to enforce a court order respecting a young child at a Halifax residence, the accused, VandenElsen and Finck, were convicted of numerous Criminal Code offences - VandenElsen was convicted of child abduction contrary to a custody order (s. 282(1)(a)), using a firearm while committing an indictable offence (s. 85(1)(a)), assault with a weapon (s. 267(a)), possession of an unlicensed or an unregistered firearm (s. 91(3)) and obstruction of a peace officer (s. 129(a)) - She showed no appreciation of the wrongfulness or gravity of her actions or the danger she put her child and others in - Blamed the judicial and social system for her problems - Flagrant disobedience of court orders - No mitigating factors besides a lack of prior convictions - The court sentenced VandenElsen to three and a half years' imprisonment (total) - VandenElsen appealed - The Nova Scotia Court of Appeal dismissed the appeal - See paragraphs 170 to 198.

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - Following a 67 hour armed stand-off with police who were attempting to enforce a court order respecting a young child at a Halifax residence, the accused, VandenElsen and Finck, were convicted of numerous Criminal Code offences - Finck was convicted of child abduction contrary to a custody order (s. 282(1)(a)), possession of a weapon for a purpose dangerous to the public peace (s. 88), possession of an unlicensed or an unregistered firearm (s. 91(3)), and obstruction of a peace officer (s. 129(a)) - Finck had a prior conviction for child abduction (s. 282(1)(a)) and was on probation when this offence was committed - Flagrant disobedience of court orders - No mitigating factors - Little appreciation of seriousness of his unlawful conduct - Blamed the judicial and social system for his problems - The court imposed a total sentence of four and a half years' imprisonment - Finck appealed - The Nova Scotia Court of Appeal dismissed the appeal - See paragraphs 170 to 198.

Criminal Law - Topic 5917

Sentence - Use of firearm during offence - [See first Criminal Law - Topic 5904 ].

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements -Finck and VandenElsen were convicted of a number of offences arising from an armed standoff with police at a Halifax residence - At trial the accused consented to the admission of 13 communications intercepted during the standoff, but as the trial unfolded the Crown introduced only eight of the intercepts - The trial judge ruled that the additional wiretaps were not admissible because to admit them would violate the rule prohibiting the admission of prior consistent statements - The accused appealed, arguing that the trial judge erred in law in not permitting the defence to use the intercepts not proffered by the Crown, thereby giving rise to a miscarriage of justice - The Nova Scotia Court of Appeal rejected this ground of appeal - The court held that the refused intercepts did not qualify or vary the evidence at trial and were not otherwise admissible under any exceptions to the rule against prior consistent statements - See paragraphs 85 to 114.

Practice - Topic 5461

Judgments and orders - Finality of - Collateral attack - [See Criminal Law - Topic 440 ].

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - [See Criminal Law - Topic 440 ].

Cases Noticed:

R. v. Pawluk (F.) (2005), 269 Sask.R. 290; 357 W.A.C. 290 (C.A.), refd to. [para. 33].

R. v. Tapaquon, [1993] 4 S.C.R. 535; 159 N.R. 321; 116 Sask.R. 81; 59 W.A.C. 81, refd to. [para. 39].

R. v. Myers (D.J.) (1991), 91 Nfld. & P.E.I.R. 37; 286 A.P.R. 37; 65 C.C.C.(3d) 135 (Nfld. C.A.), refd to. [para. 43].

R. v. Hyde (1990), 63 Man.R.(2d) 52; 55 C.C.C.(3d) 251 (C.A.), refd to. [para. 46].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 53].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126, refd to. [para. 53].

R. v. Domm (G.) (1996), 95 O.A.C. 262; 111 C.C.C.(3d) 449 (C.A.), leave to appeal refused (1997), 215 N.R. 320; 102 O.A.C. 320 (S.C.C.), refd to. [para. 65].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 68].

Quebec (Procureur général) v. Laroche et al., [2002] 3 S.C.R. 708; 295 N.R. 291, refd to. [para. 68].

R. v. Rent (1989), 91 N.S.R.(2d) 112; 233 A.P.R. 112 (C.A.), refd to. [para. 68].

R. v. Cluett, [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 104, refd to. [para. 72].

Eccles v. Bourque et al. (1974), 14 C.C.C.(2d) 279 (B.C.C.A.), affd. [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 73].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2001), 196 N.S.R.(2d) 118; 613 A.P.R. 118 (C.A.), refd to. [para. 77].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 77].

R. v. Schneider (A.M.) et al. (2004), 226 N.S.R.(2d) 110; 714 A.P.R. 110 (C.A.), leave to appeal refused (2005), 341 N.R. 396; 240 N.S.R.(2d) 400; 763 A.P.R. 400 (S.C.C.), refd to. [para. 80].

R. v. Fabrikant (V.) (1995), 67 Q.A.C. 268; 97 C.C.C.(3d) 544 (C.A.), leave to appeal refused (1995), 193 N.R. 400; 98 C.C.C.(3d) vi (S.C.C.), refd to. [para. 82].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 90].

R. v. Demetrius (L.) (2003), 176 O.A.C. 349; 179 C.C.C.(3d) 26 (C.A.), refd to. [para. 92].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 103].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 105].

R. v. Adams (K.) et al. (1993), 60 O.A.C. 368; 19 C.R.(4th) 277 (C.A.), refd to. [para. 106].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 83 C.C.C.(3d) 5 (C.A.), refd to. [para. 112].

Foley et al. v. Gares - see R. v. Gares.

R. v. Gares (1989), 80 Sask.R. 241; 53 C.C.C.(3d) 82 (C.A.), refd to. [para. 116].

R. v. Ross (K.) (1994), 131 N.S.R.(2d) 258; 371 A.P.R. 258 (S.C.), refd to. [para. 116].

R. v. Regan (G.A.) (1998), 173 N.S.R.(2d) 298; 527 A.P.R. 298 (S.C.), refd to. [para. 116].

R. v. Hanna (K.D.) (1993), 27 B.C.A.C. 42; 45 W.A.C. 42; 80 C.C.C.(3d) 289 (C.A.), leave to appeal refused (1994), 179 N.R. 74; 57 B.C.A.C. 79; 94 W.A.C. 79 (S.C.C.), refd to. [para. 130].

R. v. MacKay (1980), 53 C.C.C.(2d) 366 (B.C.C.A.), refd to. [para. 131].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 139].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388, refd to. [para. 143].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81, refd to. [para. 158].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 162].

R. v. McDougall (1990), 42 O.A.C. 223; 1 O.R.(3d) 247 (C.A.), refd to. [para. 164].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 164].

R. v. Hall (1984), 3 O.A.C. 296; 12 C.C.C.(3d) 93 (C.A.), refd to. [para. 168].

R. v. Harder, [1956] S.C.R. 489, refd to. [para. 168].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 190].

R. v. P.M. - see R. v. Mendez (P.).

R. v. Mendez (P.) (1997), 96 O.A.C. 298; 113 C.C.C.(3d) 304 (C.A.), leave to appeal refused (1998), 227 N.R. 195; 116 O.A.C. 200 (S.C.C.), refd to. [para. 192].

R. v. Finck (L.R.), 2000 CarswellOnt 6024 (Sup. Ct.), affd. (2003), 173 O.A.C. 195; 2003 CarswellOnt 2578 (C.A.), refd to. [para. 192].

R. v. Whitten (W.) (1993), 112 Nfld. & P.E.I.R. 144; 350 A.P.R. 144 (Nfld. T.D.), refd to. [para. 194].

R. v. Rocuant (M.A.) (1995), 165 A.R. 78; 89 W.A.C. 78 (C.A.), refd to. [para. 194].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987) (2007 Looseleaf Update), para. 11:1135 [para. 46].

Watt's Manual of Criminal Jury Instructions (2005), Final 101-A [para. 166].

Counsel:

Appellants in person;

Peter P. Rosinski, for the respondent.

This appeal was heard in Halifax, Nova Scotia, on February 15, 2007, by MacDonald, C.J.N.S., Bateman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. The following decision was delivered by the court on March 27, 2007.