R. v. M.H.B., (2016) 374 N.S.R.(2d) 63 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 11, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 374 N.S.R.(2d) 63 (SC);2016 NSSC 129

R. v. M.H.B. (2016), 374 N.S.R.(2d) 63 (SC);

    1178 A.P.R. 63

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MY.035

Her Majesty the Queen v. M.H.B.

(CRH No. 438124; 2016 NSSC 129)

Indexed As: R. v. M.H.B.

Nova Scotia Supreme Court

Rosinski, J.

May 20, 2016.

Summary:

The accused was charged with sexually assaulting his wife, who alleged that on two occasions the accused was uncharacteristically aggressive in forcing her to perform certain acts that she did not consent to. The accused's defence was consent or, alternatively, an honest but mistaken belief in consent. The accused gave two videotaped statements to police. Although the accused raised no Charter violations, he argued that the statements were not voluntarily made because his will was overborne where the police, inter alia, repeatedly suggested that he could only be released if he provided his version of what happened and it was credible. At issue was: (1) whether the trial judge should view the entirety of the videotaped statements to determine voluntariness; (2) whether the Crown proved beyond a reasonable doubt that the statements were voluntary; and (3) whether the accused would be permitted under s. 276 of the Criminal Code to cross-examine his wife on their shared past sexual history.

The Nova Scotia Supreme Court held that it was appropriate to review the entirety of both videotaped statements, the statements were proved beyond a reasonable doubt to be voluntary, and that the accused would be permitted to cross-examine his wife on their shared sexual history, as that was relevant to the defence of honest but mistaken belief in consent.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - The accused was charged with sexually assaulting his wife, who alleged that on two occasions the accused was uncharacteristically aggressive in forcing her to perform certain acts that she did not consent to - The accused's defence was consent or, alternatively, an honest but mistaken belief in consent - The accused applied under s. 276.1 of the Criminal Code for a hearing under s. 276.2 to determine whether evidence of their shared sexual history was admissible under s. 276(2) - The accused argued that their shared sexual history was relevant to the issues of consent and whether he had an honest but mistaken belief that she consented to the incidents in question - The Nova Scotia Supreme Court held that the evidence was admissible - The accused would be permitted to cross-examine his wife on their shared sexual history - The court stated that "in the unusual circumstances of this case, involving a cohabiting couple who had an established pattern of sexual activity, I am satisfied that the proposed evidence is sufficiently identifiable to be said to be 'of specific instances of sexual activity', and that it is relevant to the issue of honest but mistaken belief in consent, and that its probative value is significant and not substantially outweighed by the danger of prejudice to the proper administration of justice, taking into account the factors in Section 276(3)" - See paragraphs 65 to 87.

Criminal Law - Topic 5335

Evidence - Witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was charged with sexually assaulting his wife, who alleged that on two occasions the accused was uncharacteristically aggressive in forcing her to perform certain acts that she did not consent to - The accused's defence was consent or, alternatively, an honest but mistaken belief in consent - The accused gave two videotaped statements to police - Although the accused raised no Charter violations, he argued that the statements were not voluntarily made because his will was overborne where the police, inter alia, repeatedly suggested that he could only be released if he provided his version of what happened and it was credible - At issue was whether the trial judge should view the entirety of the videotaped statements to determine voluntariness and whether the Crown proved beyond a reasonable doubt that the statements were voluntary - The Nova Scotia Supreme Court held that it was appropriate to review the entirety of both videotaped statements - It was the best evidence respecting what transpired between the officer and the accused - The statements were proved beyond a reasonable doubt to be voluntary - The court rejected the argument that there was an inducement to give a statement where the accused was told that, inter alia, he could only be released if he provided his version of what happened and it was credible - The accused clearly understood that giving a credible statement would not necessarily result in him not being charged - The accused merely hoped to be released if he gave a statement - There was no quid pro quo - He was promised nothing - The court stated that "He had been told that there was no guarantee that he would be released/not charged, but concluded it was in his interest to give his version of events" - See paragraphs 6 to 64.

Counsel:

Glenn Hubbard, for the Crown;

Wayne Bacchus, for the accused.

This matter was heard on May 11, 2016, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 20, 2016.