R. v. Scott (J.M.), 2004 NSCA 141

• Judge: Glube, C.J.N.S., Roscoe and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 20, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 141;(2004), 228 N.S.R.(2d) 203 (CA)

R. v. Scott (J.M.) (2004), 228 N.S.R.(2d) 203 (CA);

 723 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. NO.046

Jennifer Madeline Scott (appellant) v. Her Majesty the Queen (respondent)

(CAC 214922; 2004 NSCA 141)

Indexed As: R. v. Scott (J.M.)

Nova Scotia Court of Appeal

Glube, C.J.N.S., Roscoe and Fichaud, JJ.A.

November 25, 2004.

Summary:

The accused was charged with robbery and wearing a disguise. She applied to exclude evidence obtained as a result of a consent search of her apartment.

The Nova Scotia Supreme Court, in a decision reported at 221 N.S.R.(2d) 10; 697 A.P.R. 10 dismissed the application. At trial, a Crown witness (Halliday) refused to testify and was found in contempt. The Crown applied to have the witness' sworn videotaped statement entered for the truth of its contents.

The Nova Scotia Supreme Court, in a decision reported at 221 N.S.R.(2d) 1; 697 A.P.R. 1, allowed the application. The accused was convicted and sentenced to 18 months' incarceration followed by probation. The accused appealed the conviction on the grounds that the trial judge erred by admitting both the evidence seized from her residence and the Halliday statement. She also appealed the sentence.

The Nova Scotia Court of Appeal allowed the conviction appeal and ordered a new trial. It was unnecessary to deal with the sentence appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Scott and her boyfriend, Halliday, were detained as suspects in a robbery - The police continued their investigation - Scott matched the suspect's description but her clothes did not - Halliday was on parole - They were arrested at 1:15 a.m. and given their rights - Scott contacted a lawyer at the police station - She was asked to sign a consent to search her apartment - She contacted a lawyer again and then signed the consent to search - The police discovered incriminating evidence at the apartment - The trial judge held that there were insufficient grounds to arrest the couple at 1:15 a.m. - Therefore, the arrest was unlawful - However, the trial judge refused to exclude the evidence - Scott appealed - The Crown conceded that Scott's arrest breached the Charter (s. 9) - The Nova Scotia Court of Appeal held that the trial judge did not err by admitting the evidence - Halliday had made a statement implicating Scott - Therefore, without the consent to search, the police could have obtained a search warrant and obtained the evidence - The evidence seized was not derivative conscriptive evidence against Scott - There was no serious Charter breach - The exclusion of the evidence would adversely effect the administration of justice - See paragraphs 25 to 68.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Scott was charged with, inter alia, robbery - At trial, a Crown witness (Scott's boyfriend, Halliday) refused to testify and was found in contempt - The Crown applied to have Halliday's sworn videotaped statement (K.G.B. statement) entered for the truth of its contents - Scott objected, given, inter alia, Halliday's criminal record, the fact that he had been a suspect in the robbery, and the lack of opportunity to cross-examine him - The trial judge admitted the statement - A jury convicted the accused - The Nova Scotia Court of Appeal allowed Scott's appeal and ordered a new trial - The trial judge failed to properly consider Halliday's motive to lie - A declarant's motive to lie was central to the analysis of threshold reliability and cross- examination was the most important safeguard - Motive to lie, compounded by no cross-examination (neither contemporaneous nor at trial) exponentially extended the reliability deficit - In this case, that combination was lethal to threshold reliability - The reliability deficit was further heightened because the statement submitted to the jury was actually the culmination of repeated police interviews and the jury was given only the final product - See paragraphs 69 to 109.

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 28].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 28].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 33].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, refd to. [para. 36].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 37].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 42].

R. v. Clement (N.), [1996] 2 S.C.R. 289; 198 N.R. 234; 92 O.A.C. 81, refd to. [para. 42].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 42].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 42].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, dist. [para. 48].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 54].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 56].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 56].

R. v. Hyatt (S.A.) et al. (2003), 176 B.C.A.C. 216; 290 W.A.C. 216; 2003 BCCA 27, refd to. [para. 56].

R. v. Goldhart (W.) (1995), 83 O.A.C. 300; 25 O.R.(3d) 72 (C.A.), revd. [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 58].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 69].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 69].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 69].

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. 69].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 69].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 69].

R. v. P.S.B. (2004), 222 N.S.R.(2d) 26; 701 A.P.R. 26; 2004 NSCA 25, refd to. [para. 77].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 140 C.C.C.(3d) 259 (C.A.), refd to. [para. 77].

R. v. Johnson (W.D.) (2004), 225 N.S.R.(2d) 22; 713 A.P.R. 22; 2004 NSCA 91, refd to. [para. 77].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1 (C.A.), refd to. [para. 77].

R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 2001 NSCA 45, refd to. [para. 85].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 60; 169 C.C.C.(3d) 489 (C.A.), refd to. [para. 92].

R. v. Walker (E.S.) (2002), 163 B.C.A.C. 101; 267 W.A.C. 101; 163 C.C.C.(3d) 29 (C.A.), refd to. [para. 92].

R. v. Lauzon (J.) (2000), 137 O.A.C. 153 (C.A.), refd to. [para. 106].

R. v. Burk (O.J.) (1999), 124 O.A.C. 269; 139 C.C.C.(3d) 266 (C.A.), refd to. [para. 106].

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139; 182 C.C.C.(3d) 393 (C.A.), refd to. [para. 106].

Authors and Works Noticed:

Wigmore, John Henry, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd Ed. 1923), generally [para. 87].

Counsel:

Brian Vardigans, for the appellant;

Daniel A. MacRury, for the respondent.

These appeals were heard on September 20, 2004, by Glube, C.J.N.S., Roscoe and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following decision of the court was delivered by Fichaud, J.A., on November 25, 2004.