R. v. Shrubsall (W.C.), (2000) 188 N.S.R.(2d) 154 (SC)

• Judge: Cacchione, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 27, 2000
• Jurisdiction: Nova Scotia
• Citations: (2000), 188 N.S.R.(2d) 154 (SC)

R. v. Shrubsall (W.C.) (2000), 188 N.S.R.(2d) 154 (SC);

 587 A.P.R. 154

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. OC.035

Her Majesty The Queen v. William Chandler Shrubsall

(C.R. No. 162264)

Indexed As: R. v. Shrubsall (W.C.)

Nova Scotia Supreme Court

Cacchione, J.

June 27, 2000.

Summary:

The accused was charged with robbery and aggravated assault. At the preliminary inquiry, two Crown witnesses gave testi­mony respecting times that might pro­vide the accused with an alibi. At trial, the evi­dence of the witnesses respecting times did not raise the possibility of an alibi. The accused did not testify nor present alibi evidence. The accused's counsel, in address­ing the jury, submitted that the accused had an alibi emanating from the two Crown wit­nesses. The Crown sought permission to address the jury on the ac­cused's failure to testify and asked the trial judge to instruct the jury on the drawing of an adverse infer­ence from his failure to do so.

The Nova Scotia Supreme Court held that the Crown was not entitled to comment on the accused's failure to testify. This was not a case of an accused raising an affirmative defence of alibi and not subject­ing himself to cross-examination. The accused was merely rely­ing on an alibi that may exist depending on the jury's findings of credibil­ity respecting the evidence of the two wit­nesses. If the jury accepted their trial evi­dence as to times, there was no alibi. If they did not accept the evidence as credible, or had a doubt as to the correctness of the time estimates, the accused may have an alibi.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - [See Criminal Law - Topic 207 ].

Criminal Law - Topic 207

General principles - Common law de­fences - Alibi - At the preliminary in­quiry, two Crown witnesses gave testi­mony respecting times that might pro­vide the accused with an alibi - At trial, the evi­dence of the witnesses respecting times did not raise the possibility of an alibi - The accused did not testify nor present alibi evidence - The accused's counsel, in ad­dress­ing the jury, submitted that the accused had an alibi emanating from the two Crown witnesses -The Crown sought permission to address the jury on the ac­cused's failure to testify and asked the trial judge to instruct the jury on the drawing of an adverse infer­ence from his failure to do so - The Nova Scotia Supreme Court held that the Crown was not entitled to com­ment on the accused's failure to testify - This was not a case of an accused raising an affirmative defence of alibi and not subject­ing himself to cross-examination - The accused was merely rely­ing on an ali­bi that may exist depending on the jury's findings of credi­bil­ity respecting the evi­dence of the two witnesses - If the jury accepted their trial evidence as to times, there was no alibi - If they did not accept the evidence as cred­ible, or had a doubt as to the correctness of the time estimates, the accused may have an alibi.

Criminal Law - Topic 4411

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reference to accused's failure to testify - [See Criminal Law - Topic 207 ].

Criminal Law - Topic 5314

Evidence and witnesses - Inferences - From silence of accused or failure to ex­plain - [See Criminal Law - Topic 207 ].

Cases Noticed:

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, dist. [para. 5].

Counsel:

Paul Carver and Robert Fetterly, for the Crown;

Lonny Queripel and Cecil Woon, for the accused.

This application was heard on June 27, 2000, at Halifax, N.S., before Cacchione, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on June 27, 2000, with written release on Octo­ber 10, 2000.