R. v. R.J.S., (1996) 154 N.S.R.(2d) 118 (CA)

• Judge: Hallett, Freeman and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 03, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 154 N.S.R.(2d) 118 (CA)

R. v. R.J.S. (1996), 154 N.S.R.(2d) 118 (CA);

    452 A.P.R. 118

MLB headnote and full text

Richard James Socobasin (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 123584)

Indexed As: R. v. R.J.S.

Nova Scotia Court of Appeal

Hallett, Freeman and Pugsley, JJ.A.

October 3, 1996.

Summary:

A 17 year old youth was charged with first degree murder in the shooting death of an armed robbery victim. The Crown applied under s. 16 of the Young Offenders Act to have the youth transferred to adult court.

The Nova Scotia Provincial Court, in a judgment reported 141 N.S.R.(2d) 388; 403 A.P.R. 388, allowed the application. Protec­tion of the public and rehabilitation of the youth were best reconciled by transferring the youth to adult court. The youth applied under s. 16(9) of the Act to review the decision.

The Nova Scotia Court of Appeal, in a judgment reported 141 N.S.R.(2d) 386; 403 A.P.R. 386, dismissed the application. The youth was subsequently found guilty by a jury and convicted of first degree murder. The youth appealed the conviction. The youth submitted that the transfer decision should be reviewed again, because a critical witness committed perjury at the transfer hearing. Accordingly, the jury verdict would be a nullity. The youth also claimed that the trial judge erred in permitting a sworn juror to be discharged, without replacement, before evidence was called. The last issue related to the Crown's failure to call witnesses on a voir dire to determine the voluntariness of the youth's statement to R.C.M.P. The witnesses were all the persons in authority in the United States who had contact with the youth over the six day period he was in custody, in jail or in court in the United States awaiting his extradition to Canada.

The Nova Scotia Court of Appeal dis­missed the conviction appeal. First, there was no jurisdiction under the Young Offenders Act for the court to again review the decision to transfer the youth. Even if there was jurisdiction, the youth failed to prove perjury and the evidence warranted a transfer. The court held that the trial judge did not err in continuing the trial with 11 jurors after discharging one juror. Lastly, the statement was admissible notwithstanding that some persons in authority did not testify at the voir dire.

Criminal Law - Topic 4325.1

Procedure - Jury - Discharge of juror - Proceeding with reduced number of jurors - Twelve jurors were sworn for a first degree murder trial - The jury panel was dismissed - One juror, who had twice before unsuccessfully sought to be dis­charged, had a question for the trial judge - The trial judge, without objection, first put the accused in the jury's charge by reading the charge and taking his plea - The trial judge had the 11 remaining jurors retire to the jury room and subsequently discharged the 12th juror for cause - No evidence had yet been presented - The trial judge elected under s. 644 of the Criminal Code to proceed with 11 jurors, ruling that the trial had commenced when the accused was in the jury's charge - The accused did not seek a mistrial, but wished the juror replaced, which was impossible where the jury panel had left - The Nova Scotia Court of Appeal stated that although it was preferable to replace a discharged juror before evidence was called, there was no such absolute rule - For the purposes of s. 644, the trial commenced when the accused was in the jury's charge - Ac­cordingly, the trial judge had jurisdiction to proceed with 11 jurors - See paragraphs 25 to 68.

Criminal Law - Topic 4476

Procedure - Trial - Commencement of - When - [See Criminal Law - Topic 4325.1 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - A 17 year old Maine youth was charged with a first degree murder in Nova Scotia - Prior to being extradited, he spent six days in custody in the U.S. - The U.S. author­ities who arrested, detained and transported him did not investigate the crime, nor did they question the youth - When the youth was handed over to the R.C.M.P. at the Cana­dian border, he was advised of his Charter rights - In spite of further warn­ings, the youth elected to give written and video­taped statements - The youth claimed that the Crown was required to call as witness­es at the voir dire all U.S. persons in authority who had any contact with him and, since only five testified, the statement was inadmissible because the Crown failed to prove it was voluntary - The Nova Scotia Court of Appeal held that the trial judge did not err in ruling that the Crown proved voluntariness - The Crown must call or explain the failure to call only those per­sons in authority who reasonably may have been in a position to influence the youth by threats or promises to give a statement - U.S. police, sheriff's officers and correc­tions officers whose contact was remote from the investigation and pros­ecution need not be called - See para­graphs 69 to 111.

Criminal Law - Topic 5359.1

Evidence and witnesses - Confessions and voluntary statements - Evidence and proof - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 8799

Young offenders - Transfer out of youth court - Appeals and reviews - A youth charged with first degree murder was ordered transferred to adult court - That decision was affirmed on appeal - The youth was convicted of first degree murder following a jury trial - The youth appealed, submitting that the Court of Appeal should re-review the transfer decision, because a critical witness com­mitted perjury at the transfer hearing - The Nova Scotia Court of Appeal held that the Young Offenders Act did not authorize the court to review a transfer decision a second time - Apart from the lack of jurisdiction, the issue was without merit where the youth was unable to advise the court what evidence given at the hearing constituted perjury - The court stated that even if the Act permitted a further review on appeal, the evidence clearly warranted a transfer to adult court - See paragraphs 2 to 24.

Cases Noticed:

R. v. R.J.S. (1995), 141 N.S.R.(2d) 386; 403 A.P.R. 386 (C.A.), refd to. [para. 5].

R. v. Basarabas; R. v. Spek (1982), 46 N.R. 69; 2 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 39].

R. v. Barrow (1987), 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271; 38 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 39].

R. v. Plato (1985), 60 A.R. 73; 40 Alta. L.R.(2d) 200 (C.A.), refd to. [para. 41].

R. v. Richardson (1987), 80 N.S.R.(2d) 250; 200 A.P.R. 250; 39 C.C.C.(3d) 262 (C.A.), refd to. [para. 44].

R. v. Mohamed (1991), 64 C.C.C.(3d) 1 (B.C.C.A.), refd to. [para. 47].

R. v. Beaton (E.R.) (1992), 115 N.S.R.(2d) 40; 314 A.P.R. 40 (C.A.), refd to. [para. 48].

R. v. Lo (P.) (1995), 62 B.C.A.C. 62; 103 W.A.C. 62 (C.A.), refd to. [para. 49].

R. v. Varcoe (R.V.) (1996), 88 O.A.C. 127; 104 C.C.C.(3d) 449 (C.A.), refd to. [para. 52].

R. v. Hatfield (1984), 62 N.S.R.(2d) 151; 136 A.P.R. 151 (C.A.), refd to. [para. 70].

R. v. G.A.J. (1993), 120 N.S.R.(2d) 432; 332 A.P.R. 432 (C.A.), refd to. [para. 70].

R. v. Garfield (1974), 21 C.C.C.(2d) 449 (Man. C.A.), refd to. [para. 74].

R. v. Settee (1974), 22 C.C.C.(2d) 193 (Sask. C.A.), refd to. [para. 74].

R. v. Dinardo (1981), 61 C.C.C.(2d) 52 (Ont. Co. Ct.), refd to. [para. 75].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 78].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1985, c. C-46, sect. 642(1) [para. 60]; sect. 644 [para. 25].

Counsel:

Donald C. Murray, for the appellant;

Robert E. Lutes, Q.C., and Peter G. Mac­Kay, for the respondent.

This appeal was heard on September 10, 1996, before Hallett, Freeman and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On October 3, 1996, Hallett, J.A., delivered the following judgment for the Court of Appeal.