R. v. Howe (D.J.) et al., (2016) 375 N.S.R.(2d) 199 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 01, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 375 N.S.R.(2d) 199 (SC);2016 NSSC 151

R. v. Howe (D.J.) (2016), 375 N.S.R.(2d) 199 (SC);

    1182 A.P.R. 199

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.049

Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James and David John Pearce

(CRH No. 441632; 2016 NSSC 151)

Indexed As: R. v. Howe (D.J.) et al.

Nova Scotia Supreme Court

Rosinski, J.

June 30, 2016.

Summary:

The accused motorcycle club members were charged with a number of criminal organization offences. A key Crown witness gave an initial statement to police that was not recorded and the police made no detailed notes. The next day, he gave an audio-taped statement. The accused argued that the police failure to record the initial statements, and alleged threats or inducements to the witness to provide the recorded statement, violated their s. 7 Charter right to make full answer and defence and constituted an abuse of process. The accused sought a stay of proceedings or, alternatively, exclusion of the viva voce and out-of-court statements of the witness.

The Nova Scotia Supreme Court dismissed the application.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - [See Police - Topic 2213 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Police - Topic 2213 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused motorcycle club members were charged with a number of criminal organization offences - A key Crown witness, who was allegedly threatened and/or intimidated by the accused, called police for advice on what to do - His initial statements to police were not recorded and the police made no detailed notes - The next day, the witness gave an audio-taped statement - The accused argued that police threats or inducements to the witness to provide the recorded statement, and an alleged lie by one officer during the preliminary inquiry (that he lied when he denied telling the witness that the threat to the witness was "confirmed and legitimate"), violated their s. 7 Charter right to make full answer and defence and constituted an abuse of process - The accused sought a stay of proceedings or, alternatively, exclusion of the viva voce and out-of-court statements of the witness - The Nova Scotia Supreme Court dismissed the application - The court rejected the allegation that the officer committed perjury, as the evidence did not prove on a balance of probabilities that the officer told the witness that the threat was "confirmed and legitimate" - The court also rejected the allegation that the police obtained the statement by using threats or inappropriate inducements amounting to duress by disproportionately heightening his fear and anxiety level to the point that he believed that his only option to preserve his safety was to give a statement - The accused did not challenge the reliability of the statement, but argued only that his will to give or not give a statement was overborne by the police - The witness called the police for advice on what to do and voluntarily gave a statement - There was no abuse of process and no prejudice to the integrity of the justice system - See paragraphs 46 to 100.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Police - Topic 2213 ].

Criminal Law - Topic 255

Abuse of process - Power of court - Re prevention and remedies - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Police - Topic 2213 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence (incl. complaints) - The accused motorcycle club members were charged with a number of criminal organization offences - A key Crown witness, who was allegedly threatened and/or intimidated by the accused, called police for advice on what to do - His initial statements to police were not recorded and the police made no detailed notes - The next day, the witness gave an audio-taped statement - The accused argued that the police failure to record the initial statements, and alleged threats or inducements to the witness to provide the recorded statement, violated their s. 7 Charter right to make full answer and defence and constituted an abuse of process - The accused sought a stay of proceedings or, alternatively, exclusion of the viva voce and out-of-court statements of the witness - The Nova Scotia Supreme Court dismissed the application - There was no Charter-based duty to take a "statement" from a potentially important witness at the earliest opportunity - The police had no duty to create a record of their first interaction with an important witness - The police failure to record or make detailed notes of their initial meeting with the witness did not prejudice the accused's right to make full answer and defence - The court stated that "Generally speaking, persuasive jurisprudence confirms that there is not duty in law upon police or investigative authorities to seize or secure all potential evidence. ... Even if such a duty existed, any breach thereof would likely require unacceptable negligence or a (bad-faith based) deliberate avoidance of taking a statement by investigating authorities. ... there is no substance whatsoever to such suggestions of avoidance or negligence." - There was no "lost evidence" prejudicing the accused and denying his right to make full answer and defence - The court accepted that there was no evidence of any material inconsistency between what the witness told the police in the unrecorded conversations and what he provided the next day in his audio-taped statement - There was other evidence which contained essentially the same information as the lost evidence - See paragraphs 18 to 45.

Police - Topic 2215

Duties - General duties - To make notes (incl. of incidents) - [See Police - Topic 2213 ].

Counsel:

Glen Scheuer, for the Crown;

Patrick Atherton, for the accused, Duayne Jamie Howe;

Trevor McGuigan, for the accused, Patrick Michael James;

Patrick MacEwen, for the accused, David John Pearce.

This application was heard on May 19, 24, 25, 27, 30, and June 1, 2016, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 30, 2016.