R. v. Howe (D.J.) et al., 2016 NSSC 140

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 25, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 140;(2016), 374 N.S.R.(2d) 138 (SC)

R. v. Howe (D.J.) (2016), 374 N.S.R.(2d) 138 (SC);

    1178 A.P.R. 138

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MY.046

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

(CRH No. 441632; 2016 NSSC 140)

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

Nova Scotia Supreme Court

Rosinski, J.

May 26, 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 notes. The next day, he gave an audiotaped 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. The accused sought a stay of proceedings or, alternatively, exclusion of the viva voce and out-of-court statements of the witness. The accused requested an advance ruling that they be permitted to cross-examine the witness on the voir dire as a hostile or adverse witness.

The Nova Scotia Supreme Court dismissed the application as premature.

Evidence - Topic 4702.1

Witnesses - Examination - Cross-examination - Hostile or adverse witness - 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 notes - The next day, he gave an audiotaped 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 - The accused sought a stay of proceedings or, alternatively, exclusion of the viva voce and out-of-court statements of the witness - The accused requested an advance ruling that they be permitted to cross-examine the witness on the voir dire as a hostile or adverse witness - The Nova Scotia Supreme Court dismissed the application as premature - The court agreed with the Crown that "there is no reason here to depart from the standard practice of allowing the witness to testify, and provide the proper context before any requested ruling of adversity, and/or hostility" - Every material Crown witness in a prosecution could not be said to be adverse "by definition" to an accused - If and when the witness presented as adverse to the accused, then the requested ruling could be made.

Evidence - Topic 4762

Witnesses - Prior inconsistent statements - Hostile or adverse witness - Declaration of - General - [See Evidence - Topic 4702.1 ].

Counsel:

Glen Scheuer, for the Crown;

Patrick Atherton, Trevor McGuigan and Patrick MacEwen, for the accused.

This application was heard on May 25, 2016, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 26, 2016.