R. v. Calnen (P.T.),

R. v. Calnen (P.T.) (2015), 368 N.S.R.(2d) 107 (SC);

    1160 A.P.R. 107

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.038

Her Majesty the Queen v. Paul Trevor Calnen

(CRH No. 426776; 2015 NSSC 319)

Indexed As: R. v. Calnen (P.T.)

Nova Scotia Supreme Court

Chipman, J.

November 4, 2015.

Summary:

The accused was charged with second degree murder and indecently interfering with the human remains of the victim. At issue on a voir dire was the admissibility of statements made to the police as to the location of the victim's ashes and a subsequent re-enactment of how the victim died.

The Nova Scotia Supreme Court, in a judgment reported (2015), 366 N.S.R.(2d) 71; 1154 A.P.R. 71, determined that the statements were admissible as voluntarily made without threats or promises, oppression or other police trickery. The issue of weighing the prejudicial effect of these statements against their probative value was deferred.

The Nova Scotia Supreme Court, in a judgment reported (2015), 368 N.S.R.(2d) 93; 1160 A.P.R. 93, admitted only those portions of the statements made after the victim's mother entered the interview room. All portions prior to that were limited to police monologues in the questioning process, consisting of police allegations (accused a monster and snapped), theories, hearsay and irrelevant evidence. The substantial prejudicial value of this portion of the recorded statement clearly outweighed its limited probative value. A third voir dire was held to determine the admissibility of text messages sent by the victim to a witness. The text messages were presumptively inadmissible hearsay.

The Nova Scotia Supreme Court admitted all of the text messages.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was charged with second degree murder and indecently interfering with the human remains of the victim - At issue on a voir dire was the admissibility of text messages sent by the victim to a witness in the days prior to her death - One of the texts was to the effect that the accused put his hands on her and she did not feel safe where she was - The messages back and forth were akin to a natural conversation - Admission of the presumptively inadmissible hearsay statements was necessary because the victim was now dead - The issue was the reliability of the text messages - The Nova Scotia Supreme Court admitted all of the text messages - The court stated that "they offer an unvarnished and therefore reliable account of the situation between [the witness] and [the victim] in mid-March 2013. This is obviously a critical time period in relation to this case and the texts are highly probative in terms of the deceased's last days on Earth. From the case law it is clear that Canadian courts have generally seen fit to allow the admission of texts as an exception to the hearsay rule. ... To the extent the Defence wishes to challenge the texts, he will have ample opportunity through cross-examination [of the witness], with the jury present." - See paragraphs 1 to 30.

Evidence - Topic 1631.1

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased person - State of mind - [See Evidence - Topic 1527 ].

Cases Noticed:

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 4].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 5].

R. v. Bonnell (C.) (2012), 410 N.B.R.(2d) 241; 1065 A.P.R. 241; 2012 NBQB 289, refd to. [para. 18].

R. v. Howell (M.W.), [2014] B.C.T.C. Uned. 2196; 2014 BCSC 2196, refd to. [para. 19].

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 20].

R. v. Gerrior (W.A.) (2014), 348 N.S.R.(2d) 354; 1100 A.P.R. 354; 2014 NSCA 76, refd to. [para. 21].

R. v. Savino (J.L.) (2014), 311 Man.R.(2d) 296; 2014 MBQB 221, refd to. [para. 23].

R. v. Gayle (E.) et al., [2013] O.T.C. Uned. 5293; 2013 ONSC 5293, refd to. [para. 24].

Counsel:

Eric R. Woodburn and Susan MacKay, for the Crown;

Peter D. Planetta and Sarah M. White, for the accused.

This voir dire was held on November 3, 2015, at Halifax, N.S., before Chipman, J., of the Nova Scotia Supreme Court, who delivered the following judgment on November 4, 2015.