R. v. MacKay (D.W.), 2008 NSPC 8

• Judge: Williams, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: October 10, 2007
• Jurisdiction: Nova Scotia
• Citations: 2008 NSPC 8;(2008), 263 N.S.R.(2d) 207 (PC)

R. v. MacKay (D.W.) (2008), 263 N.S.R.(2d) 207 (PC);

    843 A.P.R. 207

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. MR.014

Her Majesty The Queen v. Daniel W. MacKay

(1614152; 1614153; 1614156; 1614157; 1614158; 1614159; 1614160; 2008 NSPC 8)

Indexed As: R. v. MacKay (D.W.)

Nova Scotia Provincial Court

Williams, P.C.J.

February 29, 2008.

Summary:

The accused was operating a speed boat which struck a marine buoy in the Halifax harbour. The boat capsized. One passenger was thrown overboard and died. The remaining passengers either swam to shore or were rescued. The accused was charged with impaired operation of a vessel, refusing a breathalyzer demand, criminal negligence in the operation of a vessel causing bodily harm, impaired operation of a vessel causing death and criminal negligence in the operation of a vessel causing death. A blended voir dire was held for the Crown to prove the voluntariness of statements made by the accused and for the accused to seek exclusion of some of the statements on the grounds of statutory compulsion and/or Charter rights violations.

The Nova Scotia Provincial Court found the accused guilty of dangerous operation of a vessel causing bodily harm and dangerous operation of a vessel causing death. The Crown failed to prove the balance of the charges. The court determined that a purported conversation with one officer was not proved to be voluntary and was inadmissible.

Civil Rights - Topic 4328

Protection against self-incrimination - Self-incriminating statements - Statements made under statutory compulsion - The accused was involved in a boating accident that caused a fatality - On the shoreline, the accused made a number of voluntary statements to police, admitting his name, that he was driving the boat, that he owned the boat, the speed he was going, etc. - The accused sought exclusion of the statements, submitting that use of the statutorily compelled information (Small Vessel Regulations and Halifax Port Authority Practices and Procedures) against him violated his s. 7 Charter right against self-incrimination - The Nova Scotia Provincial Court held that the statements were obtained by police for use in criminal proceedings, not regulatory proceedings, and use of the statements for a purpose not contemplated by the regulatory regime was impermissible - The accused held a reasonable and honest belief that he was compelled by statute to provide details of the accident to police - Use of the statements in a criminal proceeding would violate the accused's s. 7 Charter right not to incriminate himself - The accused was not advised that the information could be used against him in a criminal trial, so was deprived of an opportunity to make an informed choice as to whether he should provide the information - The court excluded the evidence under s. 24(2) of the Charter - See paragraphs 82 to 108.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4328 ].

Criminal Law - Topic 1486

Ships and vessels - Dangerous operation of - The accused's speed boat, traversing Halifax harbour at night, struck a marine buoy that had shifted over 50 metres from its normal position, which the accused was familiar with - Only the accused and one passenger (Juteau) were on deck - The boat capsized - Juteau was thrown overboard and died - The remaining passengers, who were below deck, either swam to shore or were rescued - The Nova Scotia Provincial Court found the accused not guilty of criminal negligence, but convicted him of dangerous operation of a vessel causing bodily harm and dangerous operation of a vessel causing death - Although Juteau was dead and the accused was silent as to who was driving, the court held that the only reasonable inference on all of the evidence was that the accused was driving his boat at the time of the collision - The accused's ability to operate the vessel was not impaired by alcohol - Although there was no reliable evidence as to the boat's speed, the physical evidence left no doubt that the boat was travelling at a fast rate of speed - The boat was being driven too fast, in the dark and with reduced visibility, to avoid unexpected dangers or risks of collision - The accused breached his statutory duty to operate the boat at a "safe speed" - He was, accordingly, guilty of dangerous operation of the boat for negligently operating the boat - However, the court found the accused's actions insufficient to support a conviction for criminal negligence, as the evidence fell short of establishing a wanton or reckless disregard for the lives or safety of others (i.e., no marked departure from the standard of a reasonable person) - See paragraphs 112 to 188.

Criminal Law - Topic 1486.1

Ships and vessels - Criminal negligence in the operation of - [See Criminal Law - Topic 1486 ].

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5339

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - [See Civil Rights - Topic 4328 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was operating a speed boat which struck a marine buoy and capsized - The victim was thrown overboard and died - The accused was charged with a number of offences - An R.C.M.P. officer, who was a close friend of the victim, had an unauthorized conversation with the accused while in custody and testified that the accused made a self-incriminating statement - The conversation was deliberately not recorded, was unwitnessed by others and the officer did not make contemporaneous notes - The accused alleged intimidating behaviour by the officer, submitting that the police acted improperly and created an atmosphere of oppression, aggression and hostility which raised a reasonable doubt as to the voluntariness of alleged statements he made to police - The Nova Scotia Provincial Court inferred that the officer temporarily created an atmosphere of hostility, confinement, oppression, coercion and aggression and could have conveyed a veiled threat of unknown dire consequences to the accused or "fear of prejudice" if he did not give some information or explain himself - The court determined that there was no impermissible inducement, where the accused testified that he was not intimidated, said nothing and was generally treated properly - However, the officer's conduct amounted to an offensive and confrontational interrogation - The court held that the statements purportedly made by the accused to the officer were not proved by the Crown to have been voluntarily made - For the same reasons, statements purportedly made away from the shoreline to other officers were inadmissible as not being proved to have been voluntarily made - See paragraphs 4 to 81.

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See Criminal Law - Topic 5355 ].

Cases Noticed:

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 19].

R. v. Fitton, [1956] S.C.R. 958, refd to. [para. 23].

R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 24].

R. v. Moore-McFarlane (G.C.) (2001), 152 O.A.C. 120 (C.A.), refd to. [para. 27].

R. v. White (K.G.), [2003] O.A.C. Uned. 221; 65 O.R.(3d) 97 (C.A.), refd to. [para. 31].

R. v. Ducharme (K.A.) (2004), 184 Man.R.(2d) 36; 318 W.A.C. 36; 2004 MBCA 29, refd to. [para. 31].

R. v. Hurley (L.K.) (2006), 247 N.S.R.(2d) 264; 785 A.P.R. 264 (C.A.), refd to. [para. 32].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 34].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 37].

R. v. Sophonow (1986), 38 Man.R.(2d) 198; 25 C.C.C.(3d) 415 (C.A.), refd to. [para. 65].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 65].

R. v. White (J.K.) (1999), 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 104].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 104].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 104].

R. v. Zwicker (2003), 186 C.C.C.(3d) 395 (N.S.C.A.), refd to. [para. 106].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 12 O.R.(3d) 90 (C.A.), affd. (1994), 168 N.R. 190; 72 O.A.C. 140 (S.C.C.), refd to. [para. 128].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182 (C.A.), leave to appeal denied (1996), 205 N.R. 158; 193 A.R. 79; 135 W.A.C. 79 (S.C.C.), refd to. [para. 130].

R. v. R.L.R. (1988), 8 M.V.R.(2d) 116 (Ont. C.A.), refd to. [para. 133].

R. v. Anderson, [1990] 1 S.C.R. 265; 105 N.R. 143; 64 Man.R.(2d) 161, refd to. [para. 136].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 136].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 137].

R. v. Sharp (1984), 3 O.A.C. 26; 12 C.C.C.(3d) 428, refd to. [para. 137].

R. v. Waite, [1989] 1 S.C.R. 1436; 98 N.R. 69; 35 O.A.C. 5, refd to. [para. 137].

R. v. Peric (2006), 36 M.V.R.(5th) 105; 2006 CarswellOnt 4334 (Sup. Ct.), refd to. [para. 137].

R. v. Leblanc (1975), 8 N.R. 107; 29 C.C.C.(2d) 97 (S.C.C.), refd to. [para. 154].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1, refd to. [para. 154].

R. v. Palin (B.) (1999), 135 C.C.C.(3d) 119 (Que. C.A.), leave to appeal denied (1999), 243 N.R. 196 (S.C.C.), refd to. [para. 161].

R. v. Menezes (C.), [2002] O.T.C. 118; 50 C.R.(5th) 343 (Sup. Ct.), refd to. [para. 161].

R. v. MacGillivray (D.G.), [1995] 1 S.C.R. 890; 179 N.R. 83; 140 N.S.R.(2d) 81; 399 A.P.R. 81, affing. (1993), 126 N.S.R.(2d) 275; 352 A.P.R. 275 (C.A.), refd to. [para. 162].

R. v. Hayden, [2001] N.S.J. No. 307 (S.C.), refd to. [para. 162].

R. v. MacPhee (1977), 24 N.S.R.(2d) 196; 35 A.P.R. 196 (C.A.), refd to. [para. 162].

R. v. Beaudoin (1973), 12 C.C.C.(2d) 81 (Ont. C.A.), refd to. [para. 162].

Conrad v. Snair et al. (1995), 146 N.S.R.(2d) 321; 422 A.P.R. 321; 1995 CarswellNS 539 (C.A.), refd to. [para. 167].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 177].

R. v. Larocque (1988), 23 O.A.C. 362; 5 M.V.R.(2d) 221 (C.A.), refd to. [para. 177].

R. v. Arsenault (J.E.) (1992), 104 Nfld. & P.E.I.R. 29; 329 A.P.R. 29; 16 C.R.(4th) 301 (P.E.I.C.A.), refd to. [para. 177].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98, refd to. [para. 177].

Counsel:

M. Scott, for the Crown;

M. Knox, for the accused.

This matter was heard on October 10, 2007, before Williams, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on February 29, 2008.