NEW BRUNSWICK CRIMINAL LAW UPDATE

October 2006 to May 2007[1]

Volume 2

Note: All links are to Canadian Legal Information Institute (CanLII). You may access the full version of the case by clicking on the citation. This is not a comprehensive list of cases.

COURT OF APPEAL

Brideau and St-Onge. v., R, 2006 NBCA 94 Sentence-Break, Enter and Mischief and Assault: The appellants were sentenced for Breaking and Entering a dwelling house and committing mischief and also an assault on the homeowner. The trial judge sentenced the appellants to a fine and a period of probation. The accused broke into Julien Haché’s dwelling, where they assaulted Mr. Haché and damaged his property. The appellants attacked Mr. Haché in a scuffle that involved grabbing as well as an exchange of blows in which a door was broken down, a wall was smashed in two places, and a mirror and chain were broken. HELD: The Court of Appeal found that given s. 348.1 and the circumstances of the case, that the objectives of denunciation and deterrence required the imposition of a sentence of imprisonment. They varied the sentence to a six month term of imprisonment to be served in the community (indicating that it would have been much harsher but for the lack of a record and other mitigating circumstances)

Ferris v. R., 2006 NBCA 97 Fresh Evidence-An appeal against a conviction for aggravated assault was allowed, as was the admission of fresh evidence, on the consent of the Respondent.

Flowers v. R., 2006 NBCA 96 After Event Conduct-Self Defence: The appellant appealed his conviction for second degree murder on the basis that the trial judge erred in law by refusing to instruct the jury on the availability of the defence of self-defence and in her instructions to the jury on the use of evidence of “after-event conduct”. The appellant was holding as shotgun when it discharged during the course of a struggle between the victim and a third party. The Crown suggested the appellant pulled the trigger, the appellant submitted the gun discharged accidentally. The appellant conceded that he fled the scene and attempted to conceal the shotgun to avoid arrest and prosecution. The trial judge refused to put the defence of self-defence to the jury. She also provided an instruction to the jury relative to both favourable conduct of the appellant after the event and the more typical “after event conduct”. HELD: On the issue of self defence DESCHÊNES, J.A,, writing for the Court said: “In this case, looking at the evidence in its entirety and the evidence relied upon by the accused, and assuming the evidence relied upon by the accused to be true, my view is that the trial judge made the correct decision in not putting the defence of self-defence under section 34(1) to the jury and that Mr. Flowers’ contention in this regard is without merit.” On the issue of “after event conduct” the Court held that the trial judge erred in leaving with the jury the mere possibility that they could consider the unfavourable post-offence conduct in determining if the accused had the specific intent required for a conviction of second degree murder. The error, however, was harmless given that: i) Crown counsel never suggested at any time that it was relying on the unfavourable post-offence conduct for a purpose other than as evidence that Mr. Flowers knew he had done something wrong; ii) defence counsel did discuss the competing interpretations that could be placed upon the unfavourable post-offence conduct, and iii) the trial judge’s faint reference to the unfavourable post-offence conduct as possibly having any significance on the crucial issue of murderous intent was more than neutralized by her decision to mention it in the context of just another piece of circumstantial evidence to be considered with all the evidence, along with favourable post-offence statements and conduct inconsistent with murderous intent. The Court invoked the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

Moffitt v. R., 2006 NBCA 100 Appeal from Summary Conviction Appeal Court-Question of Law Alone-Credibility of Witnesses: The applicant applied for leave to appeal the dismissal by a judge of the Court of Queen’s Bench of his appeal against his summary conviction for uttering a threat to cause death or bodily harm. HELD: The credibility of trial witnesses is not a question of law alone and thus the application for leave was denied.

Latouf v. R., 2006 NBCA 105 Leave to appeal was dismissed on the basis that the Court was in substantial agreement with the decision in R. v. Latouf (P.) 2005 NBBR 318 (IIJCan), (2005), 289 N.B.R. (2d) 161 (Q.B.), [2005] N.B.J. No. 377 (QL), 2005 NBQB 318

Cormier v. R., 2006 NBCA 106 Findings of Fact: The appellant advanced grounds of appeal that involved questions of fact from his conviction for possession for the purpose of trafficking, and trafficking in hydromorphone. HELD: The Court found that the trial judge assessed the evidence, considered the arguments advanced by the appellant’s counsel and made findings of fact that were supported by the evidence. Leave to appeal was dismissed.

R. v. Isbill, 2006 NBCA 107 Statutory Interpretation-Onus regarding Exemptions: The appellant Attorney General appealed against a decision of the summary conviction appeal court which overturned a Trial Judge’s decision. The summary conviction appeal court judge held that the Crown must prove that the accused was not subject to a statutory exemption and that the trial judge had erred in not applying a strict interpretation to the Clean Water Act. The appeal judge applied the rule of “strict statutory construction” and the so-called “Limited Class Rule” (ejusdem generis) to s. 15(1) of the Act. HELD: The Court held that the appeal judge erred in using the rules of “strict construction” and “Limited Class” because the application of those rules is only appropriate where it is necessary 1) to assist in ascertaining the intention of the drafter of the document, and (2) to resolve ambiguity. The Court held there was no conflict or ambiguity in the section and thus no need to apply the rules adopted by the summary conviction appeal judge. On the second issue, the Court held that the appeal judge erroneously found that the Attorney General was required to prove that the respondent’s activities did not fall within an exemption under the Act. Pursuant to section 104 of the Provincial Offences Procedures Act, it was the defendants, not the Attorney General, that has the onus of proving they were exempt from the Clean Water Act requirement that they obtain a permit before proceeding with their activities. The Appeal was set aside and the conviction restored.

Goodine v. R., 2006 NBCA 109 Charter of Rights-Section 9 Lawfulness of Arrests: The appellant appealed his conviction for the indictable offence of possession of a tobacco product that was not stamped as required by the Excise Act, 2001, S.C. 2002 c. 22. He alleged his arrest had been unlawful because the officers acted upon information emanating exclusively from an untested anonymous tipster whose allegations were uncorroborated by independent sources. The Court stated the issue as: must the allegation of criminal activity by an untested anonymous tipster always be corroborated through other independent investigative means before the police can lawfully act upon that allegation and proceed to arrest its target? The facts of the case were that the RCMP was advised, through the New Brunswick Crime Stoppers service, that the appellant was traveling to the Montreal, Quebec area on a regular basis - every two to three weeks - and returning with contraband tobacco products. The tipster provided information both about the nature of the offence and information about the appellant. Through surveillance the RCMP were able to confirm the accuracy of practically every “neutral” bit of information supplied by the tipster. On the basis of further information from the tipster the appellant was arrested in Grand Falls and as a result fo the arrest and a subsequent warrant the police seized 14 cardboard cases containing 50 cartons of white filtered cigarettes, 5 cardboard cases containing 50 cartons of brown filtered cigarettes, and 1 plastic baggie containing 37 white filtered cigarettes. At trial the appellant was found guilty and convicted. HELD: The Court held that lack of corroboration of the “criminal” aspect of a tip by an untested anonymous source does not preclude a finding that an arrest based on that tip was lawful, at least where the following circumstances are in play: (1) there is no evidence that an improper motive underlies the tipster’s report; (2) the corroborated “neutral” data would lead a reasonable and dispassionate observer to infer that the tipster is both closely acquainted with the target and privy to the criminal activity being reported; and (3) that observer would be at a loss to point to any fact-based, as opposed to speculative, justification for the conclusion that the allegation of criminal conduct is unreliable. The judge must view the grounds for arrest and their sufficiency on the totality of the circumstances. Once the trial judge determines that there were reasonable grounds for the arrest this finding is one of fact. The Court held that the trial judge’s finding that there were reasonable grounds for arrest must stand because it has not been shown to be the product of any palpable and overriding error in the assessment of the evidence.

R. v. R.F.G., 2006 NBCA 104 Sentence-Sexual Assault-Breach of Trust-Principles of Sentence: The Attorney General applied for leave to appeal against the sentence imposed upon the respondent of two years less a day to be served in the community, for sexual assault. The appellant alleged that the trial judge erred in failing to give proper emphasis to deterrence and denunciation and that the trial judge imposed a demonstrably unfit sentence. At the time of the offence, the respondent was a 27 year old school teacher, and the victim of the assault, P.B., was 13 years of age. The nature of the sexual contact included intercourse. HELD: The Court held that trial judge had to do more than pay lip service to the principles of deterrence and denunciation. General deterrence was so pressing in this case that a conditional sentence could not respond to it. The sentence does not adequately take into account the principle that deterrence must play a determining role in sentencing for sexual assaults against students by teachers. The Court also held that the sentence should be increased because the offender in committing the offence not only abused a person under the age of eighteen years (s. 718.2(a)(ii.1)), but also abused a relationship of trust with the victim. The Court granted leave to appeal, allowed the Attorney General's appeal and varied the sentence imposed at trial by substituting a sentence of two years less a day in prison.

Searle v. R., 2006 NBCA 118 Breathalyzer Demand- Reasonable and probable grounds for Demand: The appellant appealed from a decision of the summary conviction appeal court upholding his conviction for an offence under s. 253(b). He alleged that the officer who read him the demand for a breathalyzer had no reasonable and probable grounds to believe that Mr. Searle had committed the charged offence within the preceding three hours as required by s. 254(3) of the Criminal Code of Canada. The officer, dispatched to an accident, was advised that the appellant was the driver of one of the vehicles involved. When he noted signs of impairment he made the statutory demand. The officer did not directly testify as to his knowledge in regards to the accident, other than he had received a call. The trial judge held that there was a natural inference to be drawn as to when the accident occurred. HELD: The Court found that there was no evidence on the record which allowed the trial judge to infer that somebody had informed Constable Fowler as to the approximate time of the accident he was investigating. Thus, there was no evidence to allow an inference that Constable Fowler subjectively held an honest belief that the offence had been committed within the preceding three hours. The Crown cannot rely on the presumption found in s. 258(1)(c) unless the officer had reasonable and probable grounds to make the breathalyzer demand in the first place. Without this presumption, there is no evidence of the concentration of alcohol in the accused’s blood at the time the offence was alleged to have been committed. The Court granted leave to appeal, allowed the appeal and entered an acquittal on the charge pursuant to s. 253(b).

Bari v. R., 2006 NBCA 119 Admissibility of Out of Court Statements –Admissibility of statements made to a doctor-Instructions to the Jury: The appellant was convicted of first degree murder for the killing of his wife. On appeal he challenged the admissibility of several out of court statements made by his wife after their separation. These statements were those made by Ms. Bari to several police officers and to a civilian the substance of which was that she was fearful of her husband because of his constant harassment and his barely veiled threat to harm her. The trial judge admitted them on the basis that these out of court statements fell within an exception to the hearsay rule in that they constituted evidence of the victim’s state of mind and that they were admissible as it constituted a narrative showing the dynamics of the relationship between the appellant and his wife at the pertinent time. The trial judge also admitting statements made to the appellant’s consulting psychiatrist. He spoke to the psychiatrist about his devastation over separation from his wife and his feelings of betrayal. He also took issue with the trial judge’s instructions to the jury. HELD: The Court held that the trial judge applied the proper criteria to determine the admissibility of Ms. Bari’s out-of-court statements for the purposes for which they were adduced by the Crown. A review of the trial judge’s reasons indicated that it was obvious that the trial judge, in addressing the question of threshold reliability of Ms. Bari’s out-of-court statements to her landlord and to police officers, was alive to the principles enunciated in R. v. Starr. The Court also found that the trial judge did not apply incorrect principles in concluding that the probative value of the impugned evidence outweighed its prejudicial effect. With regard to the admission of the appellant’s statements to his psychiatrist, the Court found that no privilege attached to the statements and that even if it had, the appellant had waived that privilege by offering them at an earlier sentencing for criminal harassment. Finally, the Court found no error in the trial judge’s instructions to the jury.

J.-M.N. v. R., 2006 NBCA 122 The appellant was convicted of indecent assault on C.D., a female person, an “indictable offence [...] under s. 149(1) of the Criminal Code of Canada” and acquitted of two other counts. The trial judge had admitted evidence of a pediatrician that the absence of physical evidence of sexual assault did not indicate that no assault had taken place. The appellant appealed on this basis. The Crown conceded that the evidence was wrongly admitted but argued that the error was trivial. HELD:

The evidence was adduced for an improper purpose: ie to bolster the credibility of the complainant on a fact that was not in issue. The court characterized the Crown’s position as follows: “there is no evidence concerning this, but should you conclude that there was no injury to the complainant’s hymen, this does not mean that the events recounted by the complainant did not occur; in other words, such a conclusion should not affect in any way the complainant’s credibility.” Such an error was significant and the curative proviso could not be applied.

COURT OF QUEEN’S BENCH

R. c. Domingue, 2006 NBBR 330 Sentence-Possession for the Purpose of Trafficking-Metamphetamine: The accused was found guilty of possession for the purpose of methamphetamine of a value of between $15, 500.00 and $ 29, 500.00. The accused was a 26 year old male from Quebec with a drug problem. The Court imposed a sentence of 30 months in a federal institution.

Chase v. R., 2006 NBQB 331 Impaired Driving-Charter of Rights Section 8 and 10-Reasonable and Probable Grounds: The appellant was found guilty of having operated a motor vehicle while the concentration of alcohol in his blood exceeded .08 contrary to s. 253(b) of the Criminal Code. He was sentenced to pay a fine of $1000, a victim surcharge of $225, and was prohibited from driving for one year. He appealed on the grounds the Trial Judge erred in failing to find that there was a violation of sections 8 and 10(b) of the Charter of Rights and Freedoms, and in finding that the officer who made the demand had the requisite grounds to do so. The officer had seen a vehicle traveling at 82 km/h in a 50 km/h zone, and when he stopped the vehicle he could smell an odour of liquor coming from the vehicle. When the officer requested the appellant’s particulars the appellant produced his Medicare card. The officer asked again for a driver’s license, which, after some fumbling, produced. The officer detected a strong smell of liquor on the appellant’s breath and noticed his eyes were glassy and his speech was slightly slurred. At the police station the appellant could not contact his own lawyer, but was able to contact duty counsel. HELD: The trial judge’s finding that there were sufficient grounds to make the demand in this case was reasonable and supported by the evidence. The Court further held that appellant had been provided both with the information that he had a right to call counsel and the opportunity to do so. He did not testify on the voir dire that his rights had been violated and he did speak to duty counsel. There had been no infringement of his rights as found by the trial judge.

R. v. Eatmon (Excising Application), 2007 NBQB 27 Excising Audio Tapes-Character Evidence-The Applicant sought an order excising portions of a transcript and audiotape of intercepted communications between the Applicant and his parents in the visitor's room of the Youth Centre in Miramichi. The Crown opposed and argued that the best method to resolve the issue of what may be prima facie 'character evidence ' is through the Court's instructions to the jury during the trial HELD: Adopting the rationale in R. v. Bartkowski, 2005 CarswellBC 1546, Glennie, J, held that the passages in the transcript sought to be excised by the Applicant were not logically probative of the charge against the Applicant, were irrelevant and were prejudicial to the Applicant. The impugned portions of the transcript and audio tape were to be excised prior to their delivery and presentation to members of the Jury

R. v. Smith, 2006 NBQB 416 Section 11(b) Charter- Trial within a Reasonable Time-Motion for Stay: The applicant requested a stay of proceedings on the grounds that his right under Section 11(b) of the Charter of Rights and Freedoms to be tried within a reasonable time has been infringed. The applicant was charged with conspiracy to traffic in a controlled substance. He was not in court when the charge was laid and a warrant was issued. Despite having a specific address for him, the RCMP made no attempts to contact him in the 23 months after he was charged and before his arrest. By the time the applicant’s case was being brought to set a trial date all of his alleged co-conspirators had either been found guilty, had died or had their charges dropped. HELD: The motions Judge accepted that all of the delays before the applicant’s arrest were unavoidable. Of the 23 months between the charge being laid and the accused being arrested, Grant, J. found that there was no effort of any attempt by the police to contact the applicant and that he did not otherwise know of the charge. That delay, he found was entirely attributable to the Crown. Grant, J. further held that given the unreasonable length of the delay, the lack of any explanation for it, the prejudice both inferred and actual that it had that there had been a violation of the applicant’s right to be tried within a reasonable time. Further he held that that this was one of those “clearest of cases” for which the only appropriate remedy was a stay of proceedings and he hereby ordered that the charge be stayed.

For any questions or comments related to the above please contact Cameron Gunn at 456 2819 or Cameron.gunn@gnb.ca