R. v. Oland (D.J.), (2015) 446 N.B.R.(2d) 317 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 24, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 446 N.B.R.(2d) 317 (TD);2015 NBQB 247

R. v. Oland (D.J.) (2015), 446 N.B.R.(2d) 317 (TD);

    446 R.N.-B.(2e) 317; 1168 A.P.R. 317

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.006

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.006

Her Majesty The Queen v. Dennis James Oland

(SJCR-2-2015; 2015 NBQB 247; 2015 NBBR 247)

Indexed As: R. v. Oland (D.J.)

Répertorié: R. v. Oland (D.J.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Walsh, J.

September 10, 2015.

Summary:

Résumé:

The accused was charged with the second degree murder of his father, who was bludgeoned to death in his office. The Crown sought to admit into evidence a text message from the father to the accused's mother, two email exchanges between the mother and father, and one email from the father to the mother. The accused claimed that spousal privilege was not solely testimonial in nature, but extended to all private communications (oral and written) made between spouses. Alternatively, the accused argued that if spousal privilege was only testimonial in nature, the existing law should be judicially expanded to include all private communications.

The New Brunswick Court of Queen's Bench, Trial Division, held that the written communications were not protected by spousal privilege and were admissible. The court declined to extend the existing law to include all private communications.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - [See Evidence - Topic 4184 ].

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Evidence - Topic 4184 ].

Evidence - Topic 4184

Witnesses - Privilege - Husband and wife - What constitutes a privileged communication - The accused was charged with the second degree murder of his father - The Crown sought to admit into evidence a text message from the father to the accused's mother, two email exchanges between the mother and father, and one email from the father to the mother - The communications were relied on to show motive (accused in financial difficulty) - The accused claimed that spousal privilege was not solely testimonial in nature, but extended to all private communications (oral and written) made between spouses - Alternatively, the accused argued that if spousal privilege was only testimonial in nature, the existing law should be judicially expanded to include all private communications - The New Brunswick Court of Queen's Bench, Trial Division, held that the text messages and emails were not protected by spousal privilege under s. 4(3) of the Canada Evidence Act - The court was bound by R. v. Couture (2007 SCC), which determined that spousal privilege was testimonial in nature and did not extend to the information itself - The court declined to change that existing law to include all private communications, as it could do so only if a new legal issue was raised and there was a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate" - Neither prerequisite was met to permit it to not follow binding precedent - The text message and emails were ruled admissible at trial.

Evidence - Topic 5603

Witnesses - Competency and compellability - Compellability - Particular persons - Spouses (incl. common law spouses) - [See Evidence - Topic 4184 ].

Cases Noticed:

R. v. Couture (D.R.) (2007), 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, folld. [para. 4].

R. v. Lloyd and Lloyd, [1981] 2 S.C.R. 645; 39 N.R. 474, refd to. [para. 8].

R. v. Siniscalchi (F.) (2010), 291 B.C.A.C. 14; 492 W.A.C. 14; 2010 BCCA 354, refd to. [para. 9].

R. v. Nguyen (B.Q.) et al. (2015), 333 O.A.C. 199; 2015 ONCA 278, refd to. [para. 9].

R. v. Henry (D.B.) et al. (2005), 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 10].

Halpern et al. v. Canada (Attorney General) (2003), 172 O.A.C. 276 (C.A.), refd to. [para. 13].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 15].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 15].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1, refd to. [para. 15].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 20].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338, refd to. [para. 21].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(3) [para. 6].

Counsel:

Avocats:

P.J. Venoit, Q.C., Jill Knee and Derek Weaver, for the Crown;

Gary Miller, Q.C., Alan D. Gold and James R. McConnell, for Dennis James Oland.

This matter was heard on August 24, 2015, before Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on September 10, 2015.