R. v. Bonnell (C.), (2012) 410 N.B.R.(2d) 241 (TD)

R. v. Bonnell (C.) (2012), 410 N.B.R.(2d) 241 (TD);

    410 R.N.-B.(2e) 241; 1065 A.P.R. 241

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

.........................

Temp. Cite: [2013] N.B.R.(2d) TBEd. OC.066

Renvoi temp.: [2013] N.B.R.(2d) TBEd. OC.066

Her Majesty the Queen v. Curtis Bonnell

(N/CR/7/2010; 2012 NBQB 289; 2012 NBBR 289)

Indexed As: R. v. Bonnell (C.)

Répertorié: R. v. Bonnell (C.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Ferguson, J.

September 7, 2012.

Summary:

Résumé:

The accused was charged with first degree murder of his 16 year old cousin (Hilary). In this motion, the Crown requested a ruling on the admissibility of certain text messages allegedly sent from Hilary's cellular telephone to her best friend and aunt (Haylie) on the morning of September 5, 2009, just before she disappeared: (1) at 7:25 a.m. "Omg Haylie I want to leave"; (2) at 7:40 a.m. "Omg where are yoou"; at 7:52 a.m. "Plea8e [sic] answer me im scared"; and (4) at 8:20 a.m. "Omf text me im scared".

The New Brunswick Court of Queen's Bench, Trial Division, held that text messages (1) and (2) were not admissible, while text messages (3) and (4) were admissible.

Editor's Note: there are several cases involving this accused.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was charged with first degree murder of his 16 year old cousin (Hilary) - In this motion, the Crown requested a ruling on the admissibility of certain text messages allegedly sent from Hilary's cellular telephone to her best friend and aunt (Haylie) on the morning of September 5, 2009, just before she disappeared: (1) at 7:25 a.m. "Omg Haylie I want to leave"; (2) at 7:40 a.m. "Omg where are yoou"; at 7:52 a.m. "Plea8e [sic] answer me im scared"; and (4) at 8:20 a.m. "Omf text me im scared" - The Crown argued that the text messages were admissible, inter alia, as meeting the preconditions for admissibility under the principled exception to the hearsay rule because the evidence was both necessary and reliable - The New Brunswick Court of Queen's Bench, Trial Division, held that text messages (1) and (2) were not admissible, while text messages (3) and (4) were admissible - Texts (1) and (2) had little or no evidentiary context to assist in determining the reliability of the statements made - On the other hand, texts (3) and (4) were both sent after the deceased left 4D Convenience store heading towards the Micmac Road where she was later seen walking and texting on her cellular telephone - In both messages she appeared to have been in a heightened sense of fear, one that appeared to increase from text (3) to text (4) - The two messages appeared to be spontaneous in nature - The recipient was someone Hilary trusted - The statements appeared to have emerged from her thoughts into text naturally - Both were similar in their description of her heightened state fear - She urgently solicited a prompt reply from Haylie in both instances - Texts (3) and (4) carried sufficient weight and little prejudice to allow it to be received - See paragraphs 61 to 73.

Evidence - Topic 1631.1

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - State of mind - The accused was charged with first degree murder of his 16 year old cousin (Hilary) - In this motion, the Crown requested a ruling on the admissibility of certain text messages allegedly sent from Hilary's cellular telephone to her best friend and aunt (Haylie) on the morning of September 5, 2009, just before she disappeared: (1) at 7:25 a.m. "Omg Haylie I want to leave"; (2) at 7:40 a.m. "Omg where are yoou"; at 7:52 a.m. "Plea8e [sic] answer me im scared"; and (4) at 8:20 a.m. "Omf text me im scared" - The Crown argued that the text messages were admissible, inter alia, as falling under the traditional common law "state of mind" exception to the hearsay rule - The New Brunswick Court of Queen's Bench, Trial Division, held that text messages (1) and (2) were not admissible, while text messages (3) and (4) were admissible - Text (1) was sent at a time when, by the weight of the evidence, Hilary and the accused had not yet been in contact with each other - Nor was the text rationally connected to other relevant evidence - Text (2) did not evince Hilary's "state of mind" - It simply posed a question - Text (3) was a statement of Hilary's "state of mind" and text (4) was a reaffirmation of text (3) in more emphatic language - They both evinced a level of fear in Hilary's mind - See paragraphs 48 to 60.

Preuve - Cote 1527

Règle du ouï-dire - Exceptions et exclusions - Nécessité de l'admission du ouï-dire et fiabilité de la preuve - [Voir Evidence - Topic 1527 ].

Preuve - Cote 1631.1

Règle du ouï-dire - Exceptions et exclusions à la règle du ouï-dire - Déclarations de personnes maintenant décédées - ༄༅tat d'esprit - [Voir Evidence - Topic 1631.1 ].

Cases Noticed:

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. 44].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 47].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 47].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 48].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 52].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 59].

R. v. Bari (A.) (2006), 308 N.B.R.(2d) 247; 797 A.P.R. 247 (C.A.), refd to. [para. 59].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 61].

R. v. Post (D.F.) (2007), 237 B.C.A.C. 208; 392 W.A.C. 208 (C.A.), refd to. [para. 61].

R. v. Smith, [2007] N.S.J. No. 56 (C.A.), refd to. [para. 63].

R. v. Blackman (L.) (2006), 218 O.A.C. 291 (C.A.), refd to. [para. 63].

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. 66].

Counsel:

Avocats:

William Richards and Jonathon Matters, for the Crown;

Gilles Lemieux, for Curtis Bonnell.

This motion was heard on March 13-15, 2012, by Ferguson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on September 7, 2012.