Cite as: R. v. Tupper, 1992 NSCO 25 1991 ' IN THE COUNTY COURT OF BETWEEN: MICHAEL MORGAN - HER MAJESTY ' HEARD: At Annapolis Royal, of January, A.D. 1992 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 254(5) of the Criminal Code DECISION: The 20th day of March, COUNSEL: W. Bruce Gillis, Q.C., Esq., for the Appellant David E. Acker, Esq., for the Respondent 0 E C I S I 0 N C.AR. No. 02647 DISTRICT NUMBER THREE TUPPER APPELLANT and -THE QUEEN RESPONDENT Nova Scotia, on the 21st day A.D. 1992 0 N 1\ P P E A L
' ' HALIBURTON, J.C.C. This is an appeal from a conviction entered by Phillip R. Woolaver, J.P.C., on the charge that Mr. Tupper did without reasonable excuse, breathalyzer demand made Douglas Shields, a peace officer, to provide ... samples of his breath ... to enable a in order to determine the alcohol in his blood, contrary to Section 254(5) of the Criminal Code. The appeal was argued by Counsel at Annapolis Royal on the 21st day of January, A.D. 1992. A decision was reserved pending the receipt of further written submissions from Counsel issue raised on the appeal which was: ' Was Constable Shield's evidence made to him by Tammy holding of a voir dire? Briefly, the facts are that on the night in question, after having returned from a dance the morning, the Accused and his commonl aw became embroiled in an argument. attention of a neighbour,. Peter eventually drive away from their automobile, with the Accused passenger seat: At some point MacNeil telephoned the R.C.M.P. The Accused had driven half Ms. Hall was able to get the keys out of the ignition and refuse to comply with a to him by Constable William proper analysis to be made concentration, if any, of with respect to the primary regarding statements Hall admissible without the and at approximately 2:30 in spouse, Tammy !Ia 11, Their dispute attracted the HacNe i 1 , who saw the coup 1 c place of residence in their driving and Tammy Hall in the during the altercation, Mr. a mile down the road when throw
- 2 them out the window. She subsequently got out and recovered the keys and left the scene. The staggered up the road where he Shields of the R.C.M.P. who was neighbour's complaint. Constable Shields, looking for the motor vehicle, continued on he found the vehicle abandoned, of the roadway. Shortly after locating this car, with other friends. She was talking very loud or in the course of which she information to Constable Shields, according to his evidence: (Page 51, Line 24) ... she stated that her and and that Michael had drove the· car out to here and that she'd been fighting with finally had shoved the car keys and thrown them out. vehicle, Michael did too, keys, she found them and ran Mr. Marty Conrad and left. Constable Shields testified occasion during the succeeding "said that he hadn't been driving that evening". All the above recited findings of fact made by the Trial Judge with the exception of the quotation from Constable Shields' evidence. what was to be decided on the trial is the question considered by Judge Woolaver at page 90, line 9: l Accused, who was very drunk, was picked up by Constable arriving in response to the who testified he was down the road until parked improperly in the middle Tammy Hall arrived "screaming", communicated the following Michael had been fighting him all the way out and up into park, grabbed the She then got out of the they were searching for the and got into a car with (Emphasis added) that on more than one minutes or hours, the Accused information reflects the 'l'he essence of
- 3 ... did Shields have re3sonable and probable grounds for making that demand? He answered that question by saying: It's my view that the evidence he did have reasonable and probable grounds for making that demand. While the testimony of Constable Shields quoted above is the clearest evidence that probable grounds at the time of the only evidence in that regard. by his testimony: He was investigating a complaint from tl1e telecoms operator. He says, at page 44: ... as a result of a call from our telecoms in Yarmouth indicating a disturbance, ' vehicle ... on Queen Street .. In the course of looking course, located Mr. Tupper, and whom he arrested for being drunk in a public place. He subsequently located the vehicle he was looking for parked in the manner already described. It is arguable that he might have drawn the necessary inference from just those circumstances, evidence that the "two people" were It seems apparent that Judge Woolaver, in reaching his decision, relied partly on the evidence of Constable those words "screamed" at him by Ms. Hall. On the trial, ;)efence - was overwhelming, that he did have reasonable and making the demand, it was not The following points are made two people a blue for this blue vehicle, he, of the Accused, who was very drunk although it is not in Ms. Hall and the Accused. Shields, including Counsel objected to the
- 4 admission of Ms. Hall's comments to Constable Shields and sought .) to have a voir dire as to the admissibility of that evidence. THE ISSUE The question to be answered on this appeal, then, is whether or not the evidence of Tammy Hall was properly admitted and/or whether failure to hold a voir dire was an omission fatal to the proceedings. When is a voir dire required? At the trial, Tammy Hall, when asked about the alleged statement to Constable Shields, said: (Page 40, Line 12) QUESTION: ... Did you say anything to Constable Shields that would lead him to believe that Michael had been driving? ANSWER: No I don't recall no. QUESTION: I'm sorry? ANSWER: I don't recall for anything in that indication no. QUESTION: Did you say, give any indication whether you were driving? ANSWER: I didn't refer to who was driving at all. QUESTION: At all. All right. At any later tirnC', did you .. you say you discussed this with Constable Shields the next day, did you give any indication at that time about who was driving? ANSWER: That I was driving, I .. QUESTION: Sorry? ANSWER: I was driving, but at the same time he was asking me a lot of questions and stuff and I could have said yes to something I didn't realize I was saying yes to.
- 5 ' Defence Counsel has interpreted this as s~ying: ... she said nothing to the that the accused was, at any time, driving her vehicle. A second point he makes is that Constable Shields' "hearsay .. and not admissible" because it that the alleged comments "took Accused". And thirdly, that by Constable Shields, "the Crown evidence of its own witness" which is not allowed. Counsel has cited the Practice in Canada", Ewaschuk, proposition: ' Where an accused does not the statement, a voir dire generally is when the admissibility of evidence ... One of the authorities for this tJroposition is R. Rawlinson, [1989] 2 S.C.R. 393. admitted evidence from five ?Olice officers who testified as to the identity of the accused based on having viewed of a break and enter. Only knowledge of the accused prior to seeing videotape itself was apparently Leaney's conviction was upheld on the basis that the Provincial Court Judge himself had found that he could identify the Accused without the evidence of the ' - Pol ice Officer to indicate evidence is was not established place within hearing of the eliciting this evidence from purported to contradict the text "Crimin~l Plc.:tdings ~nd 17:2170, for the following waive the vol untariness of is necessary, as it accused objects to the v. Lea!1ey and In that case, the trial judge a videotape one of the policemen had any the videotape. The evidence before the Court. police officers by viewing the
- videotape. Therefore, the Appeal Court held that no miscarriage of justice had resulted. In the Court of Appeal, that the conviction must be quashed putting (Page 404) emphasis on the fact that defence request for a voir dire on the admissibility of police testimony identifying person in the videotape. Mr. Justice Lamer, in his following observation: I agree with Harradence J .A. have been held. But, Sergeant Cess ford, been heard, was fully Leaney did not raise the matter in the Court of Appeal, and, in this Court, did evidence to indicate in what way he his defence by that omission .... Ewaschuk continues with the following comment: Moreover, where an accused objects to the admissibility of Crown evidence against generally be held, but need not be where a statement of counsel as to the nature will suffice to permit the trial judge to rule matter. Obviously, in inconvenience to the jury are important considerations in expediting a voir dire. Counsel makes the point that there was neither a voir dire Counsel on which the Judge purpose of the evidence and 6 Harradence, J.A., had decided and a new trial ordered, the trial judge refused a Leaney as the taller dissenting judgment, makes the that a voir dire should after having cross-examined; furthermore, not seek through affidavit was prejudiced in (My emphasis) him, a voir dire should and purpose of the evidence on tho this regard delay and (My emphasis) in this case against Mr. Tupper, held nor any explanation by could determine the nature and rnake a ruling as to its
- ' admissibility before the evidence argues that: ... it is procedurally wrong to proceed without holding a voir dire, or at least and purpose of the evidence ... the sole evidence on the question of reasonable and probable grounds before the Court, which favoured the Crown's case, was the precise evidence that was challenged and on which was requested. All of the other evidence before the Court was contrary to the Crown's case. I consider the last sentence to It is, nonetheless, clear that the evidence which was challenged was important material evidence to the Crown's case. In the text "Canadian Edition, P. K. McWi 11 iams, the ' topic 15:13010, entitled "Necessity of Voir Dire": In England a voir dire raises the issue ... However, the law that a voir dire is responsibility of the trial that a statement is voluntary ... Now in Erven v. The Queen S.C.C., Dickson J. has rejected the dire is necessary only where special circumstances cast doubt on voluntariness and that it is unnecessary where a confession is volunteered .... "Unusual prescience would be required to determine that a statement before the accused has had testify, and present argument, persons involved have not cons ide red the unsatisfactory defence could not ca: 1 evidence had to wait until after the evidence ... "Once the confession was read to the jury it was hopeless for the accused to call witnesses to show it was not a voluntary statement. and could not be undone." ' 7 - was, in fact, heard. He an inquiry as to the nature a voir dire (My emphasis) be an overstatement. Criminal Evidence", Third following comments appear under is not held unless counsel in Canada it has long been necessary, it being the judge to satisfy himself (r-.1y emphasis) (1978), 44 C.C.C. (2d) 76 view that a voir obviously voluntury or is obviously voluntary a chance to call witnesses, and where all the been called ... ". He also consequence if the on the voir dire and satement was admitted in The damage was done
- Obviously, the subject analysis is confessions by an respect to the futility of inadmissible evidence after it relevant to our considerations. I should, I think, digress to point out that the Crown takes· the position that while there certainly was a reasonable examination of witnesses" the comments of Tammy Hall would/could Tupper, the Accused, and that in any event, the evidence of what she said to Constable Shields dire" (and indeed) without "her being a witness". Reflecting the observations Leaney, the Defence having requested Judge was virtually obliged to grant that request or, at least, to inquire about the nature and purpose of the evidence about to be tendered. My reference to the texts persuades Judge ought to have required a hear the out of court statement. have heard representations as to the nature of the evidence, its purpose and admissibility. To paraphrase Dickson, J. in Erven, rules of evidence must be such as are easily applied, requiring a voir dire only after involuntariness appears 1 ikely, would create a applied". 8 -matter of the foregoing accused. The observations with attempting to countermand has been heard, however, is was no voir dire, "there opportunity to canvass .. through question of whether or not the have been heard by Mr. "was admissible without a voir of the Court in R. v. a voir dire, the Trial me that the Trial voir dire before proceeding to At the very least, he should or inadmissibility rule neither "c 1 ear nor eas i 1 y
- 9 ' The relevancy and materiality question are undoubted. The essence of the determination which which was whether or not the pol ice constable had and probable grounds" for making the s. 254 demand. The object of a voir dire would have been to determine the nature of the evidence which purpose for which it was to be received. determine its relevance and admissibility. for which the evidence was tendered police constable had an objective reasonably form the opinion that the Accused had this motor vehicle within the previous ' not the statement was made, the manner in which it was made, apparent relationship between the declarant and the Accused, other surrounding circumstances for a voir dire. Accepting however that Ms. to the effect described by Constable Shields, form a proper basis on both an objective and subjective sense to underpin the necessary belief of the police officer. The Crown has referred including R. v. Chetwynd 25 N.S.R. (unreported Freeman, J.C.2.) where second-hand information received by a police constable was found to be adequate foundation for the requisite belief. ' - of this evidence in evidence relates to the very Judge Woolaver had to make "reasonable was to be tendered and the In other words, to The primary purpose was to establish that the basis upon which he might been driving two hours. Whether or the and were the proper subject matter Hall did make a statement her words could the Court to several cases, (2d) 452 and R. v. MacLean C.LP. No. 3349, May 17, 1990,
- Notwithstanding the fact that there was there was ample opportunity for Defence Counsel to cross-examine both Tammy Hall and the two police officers with respect to the alleged statement and whether or not it was not a voir dire had been held, would have been before the admissible· for the purpose for discovered no exclusionary rule circumstances. The Defence has put forward no basis for the exclusion of the evidence. It is not hearsay Voluntariness is not in issue because it is not made by the Accused. Whether the statement was made in the presence of the Accused or not is of no consequence. The essence of the evidence before Defence Counsel in cross-examining Constable Shields at page 60: QUESTION: So the only anybody that Michael might have hysterical screaming statement from Tammy which Michael had denied? ANSWER: Correct. Whether or not he heard the statement, he was the driver. If he had heard the statement, done nothing more. If Constable Shields had heard him make that denial immediately, in the face of the allegation, have disqualified Shields from making the demand? 10 -no voir dire, .) made. Whether or I am satisfied the statement Court because it was clearly which it was tendered. I have which would apply in the a statement the Court is summed up by inference that you had from been driving, was the the Accused denied that he could have would that At page 59 of
- ' the transcript, Constable Shields testified that denied he was the driver, both at the scene and afterwards, specifically, at the time of refusing the breathalyzer. On the trial, Ms. Hall, for the Crown, testified that she vehicle at the relevant time. testified to the same effect. of the evidence, including the full cross-examination as to the manner and circumstances of the impugned statement, made certain findings of fact at page 86: I accepted (the evidence of Mr. and got the distinct impression of character and believable. the driver's seat .. the accused drove Hall in the passenger seat. ' At page 87: (Ms. Hall) says ... she drove the accused as being "very drunk". And at page 88: I didn't believe her at all ... she was truth about who was driving occasion. (Her description of t.he manner seats was) bizarre, incredible and unbelievable. It is clear that Judge Woclaver rejected her evidence that was, in fact, the driver, as he implicitly rejected her evidence that she had given no indication to the police officer that the Accused was the driver, except possibly when confused by of questions from the pol iceman. ' would not have affected the findings of Judge Woolaver, evidence upon which he based his findings. 11 - the Accused and who was called as a witness was the driver of the motor The Accused in his defence, Judge Woolaver, having heard all MacNeil) at face value a young man of high ( rvtr. MacNeil said) he got in away ... with Tammy away ... and she describes not telling the the vehicle on that in which they changed she a rain The holding of a voir dire nor the
- A SECONDARY ISSUE It remains to deal Defence has argued that having called Ms. Hall as a witness, the Crown was "stuck" with her testimony that she was the driver of the vehicle on the night in question. had not indicated otherwise to the pol ice constable. argues that the Crown was prohibited from calling the evidence of Constable Shields in contradiction of this Crown witness. points out that the Crown made witness under the provisions submits, based on "Cudmore's Civil Evidence Handbook'', 1987), page 10-1: Because, by calling a attesting to his reliability, offering evidence to show that he is not reliable. While the criminal process is an adversarial one, position of the Crown is very Accused, especially in current thinking. the Crown has an obligation to bring forward and material evidence and the witnesses necessary to produce the appropriate narrative. It is certainly well recognized that the Crown must now communicate evidence of "all" witnesses intended to call all those witnesses or not. the Crown is to place that evidence before the Court, whether it is in conflict with the theory of 12 -with one further point. The At trial, she said she Counsel He no effort to impeach their own of the Canada Evidence l\c t and (Toronto, witness, you are in effect you should not be the different from that of the It is accepted that a 11 the re 1 evant the identity and the expected to the Defence, whether it is The obligation of the Crown or not. It is for
- ' the Court to determine the guilt conclusions, of course, in large measure, credibility. It is the Defence whose adversarial position will be to emphasize that evidence which will, consistent with their theory of the case, promote the acquit tal of the that context, there can be no requirement that be uniform in their evidence nor even consistent with respect to collateral matters, although cases, there wi 11 be consistency with respect to circumstances essential to the guilt of the Accused. In dealing with the calling witnesses, I refer again Criminal Evidence", topic 27:10810: ' In Wu v. The King (1934), Lamont, J., said at p. 101: I have always understood that it·was the duty of the Crown counsel to place before evidence of those who were crime with which the accused was charged, they give evidence 1,.;hich commission of the crime otherwise. I have always considered that counsel for the crown was in the position of an officer of the Court whose du~y is irrespective of whether supports the Crown's case. Similarly, Lord RochE~ in [1936] 3 All E.R. (P.C.)., said at p. 49:: Witnesses essential to narratives on which the must, of course, bt:! called whether in the result testimony is for or against prosecution. ' 13 - or innocence basing its on its assessment of Accused. In Crown witnesses one would anticipate, in most general duty of the Crown in to McWilliams on "Canadian 62 c.c.c. 90 (S.C.C.), the Court the eyewitnesses of the whether is consistent with the by the accused or to get at the truth or not the evidence Seneviratne v. The King, the unfolding of the prosecution is based, by the prosecution the effect of their the case for the
- 14 -In view of the age of the citations, the ob 1 i gat ions of the Crown are, perhaps, not necessarily a "new age" concept. The fact that the Crown called Ms. Hall whose evidence at trial was inconsistent with the guilt of the Accused, was not prohibited and did not lead to any procedural unfairness to the Accused. No reversible error was committed by Judge Woolaver on the trial. His findings of fact were amply supported by the evidence. That being so, the appeal is hereby dismissed and the conviction and sentence confirmed. DATED at Digby, Nova Scotia, this 20th day of March, A.D. 1992. CHARLES E. HALIBURTON JUDGE OF THE COUNTY COURT OF DISTRICT NUMBER THREE TO: Mrs. Patricia Connell Clerk of the County Court P.O. Box 129 Annapolis Royal, Nova Scotia 80S lAO Mr. W. Bruce Gillis, Q.C~ Durland, Gillis & Parker Barristers, Solicitors, Notaries P.O. Box 700 Middleton, Nova Scotia BOS lPO Solicitor for the Appellant
- 15 - ' AND TO: Mr. David E. Acker Crown Attorney P.O. Box 1270 Middleton, Nova Scotia BOS lPO Solicitor for the Respondent CASES AND STATUTES CITED: "Criminal Pleadings and Pra::tice in Canada", Ewaschuk, 17:2170 & 27:10810 R. v. Leaney and Rawlinson, [1989} 2 S.C.R. 393 "Canadian Crimina 1 Evidence", Third Edit ion, P. K. McWi 11 i ams, topic 15:13010, entitled "Necessity of Voir Dire" Erven v. The Queen (1978), 44 C.C.C. (2d) 76 (S.C.C.) ' R. v. Chetwynd 25 N.S.R. (2d) 452 R. v. MacLean (unreported- Freeman, J.C.C.) C.LP. No. 3349, May 17, 1990 Canada Evidence Act, R.S., c. E-10, s.1 "Cudmore's Civil Evidence Handbook", (Toronto, 1987) Wu v. The King (1934), 62 C.C.C. 90 (S.C.C.) Seneviratne v. The King [1936] 3 All E.H. (P.C.) '
CANADA PROVINCE OF NOVA SCOTIA 1991 246692 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus MICHAEL MORGAN TUPPER HEARD BEFORE: His Honour Judge Phillip R. Woolaver PLACE HEARD: Middleton Provincial Court DATES HEARD: August 26, 1991 CHARGE: That he, at or near Bridgetown in the County of Annapolis, Province of Nova Scotia, on or about the lOth day of June, 1~91 did without reasonable excuse, refuse to comply with a breathalyzer demand made to him by Constable William Douglas Shields, a peace officer, to provide then or as soon thereafter as was practicable, samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code. David E. Acker, Esq., for the Prosecution W. Bruce .Gillis, Q.C., for the Defence
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.