R. v. Ord (J.J.), (2012) 324 N.S.R.(2d) 88 (CA)

• Judge: Saunders, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 25, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 324 N.S.R.(2d) 88 (CA);2012 NSCA 115

R. v. Ord (J.J.) (2012), 324 N.S.R.(2d) 88 (CA);

    1029 A.P.R. 88

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.001

Jason John Ord (appellant) v. Her Majesty the Queen (respondent)

(CAC 375541; 2012 NSCA 115)

Indexed As: R. v. Ord (J.J.)

Nova Scotia Court of Appeal

Saunders, Oland and Fichaud, JJ.A.

November 22, 2012.

Summary:

The accused was charged with domestic assault (Criminal Code, s. 266) and breach of a recognizance (s. 145(3)). At trial, the victim, the accused's former girlfriend, claimed memory loss during her testimony. The Crown sought to introduce the statement she had given to the police under the principled exception to the hearsay rule. A voir dire was held.

The Nova Scotia Provincial Court, in a decision reported at [2011] N.S.R.(2d) Uned. 143, found that the requirements of necessity and reliability had been met and allowed the Crown to introduce the statement into evidence for the truth of its contents. The accused was found guilty. He appealed the convictions. He argued that the trial judge erred in admitting the hearsay statement.

The Nova Scotia Supreme Court, in a decision reported at [2012] N.S.R.(2d) Uned. 5, dismissed the appeal. The accused sought leave to appeal.

The Nova Scotia Court of Appeal granted leave to appeal, but dismissed the appeal.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was charged with, inter alia, domestic assault and breach of a recognizance - At trial, the victim, the accused's former girlfriend, claimed memory loss during her testimony - The Crown sought to introduce the prior inconsistent statement the victim had given to the police under the principled exception to the hearsay rule - The trial judge found that the requirements of necessity and reliability had been met and allowed the Crown to introduce the statement into evidence for the truth of its contents - The accused was found guilty - He appealed the convictions - He argued that the trial judge erred in admitting the hearsay statement - The Summary Conviction Appeal Court (SCAC) judge dismissed the appeal - The accused sought leave to appeal - He argued that SCAC judge erred in affirming the trial verdict by misapplying the principled approach to the rule against hearsay - The Nova Scotia Court of Appeal granted leave to appeal, but dismissed the appeal - The trial judge recognized the presumption against admission of the hearsay evidence and did not reverse the burden of proof on the Crown respecting its admission - The SCAC judge did not err in endorsing the factors relied upon by the trial judge as being sufficient to establish threshold reliability.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 21].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 AP.R. 293; 2010 NSCA 16, refd to. [para. 21].

R. v. Jamieson (F.O.) (2011), 310 N.S.R.(2d) 392; 983 A.P.R. 392; 2011 NSCA 122, refd to. [para. 21].

R. v. Fitzpatrick (D.P.) (2006), 244 N.S.R.(2d) 304; 774 A.P.R. 304; 2006 NSCA 65, refd to. [para. 22].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 30].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, dist. [para. 33].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, dist. [para. 33].

R. v. S.S. et al. (2008), 233 O.A.C. 342; 2008 ONCA 140, refd to. [para. 37].

R. v. Poulette (B.A.) (2008), 269 N.S.R.(2d) 314; 860 A.P.R. 314; 2008 NSCA 95, refd to. [para. 37].

R. v. Youvarajah (Y.) (2011), 284 O.A.C. 300; 2011 ONCA 654, leave to appeal granted [2012] S.C.C.A. No. 139, refd to. [para. 37].

R. v. Devine (R.A.), [2008] 2 S.C.R. 283; 376 N.R. 297; 433 A.R. 380; 429 W.A.C. 380; 2008 SCC 36, refd to. [para. 58].

Counsel:

Lee Seshagiri, for the appellant;

Jennifer A. MacLellan, for the respondent.

This application for leave to appeal and appeal were heard at Halifax, Nova Scotia, on September 25, 2012, by Saunders, Oland and Fichaud, JJ.A, of the Nova Scotia Court of Appeal. On November 22, 2012, Saunders, J.A., delivered the following judgment for the Court of Appeal.