SUPREME COURT Citation: R. v. Butcher, 2018 Between: Her Majesty V. Nicholas Jordan DECISION: VOIR Defence Application — Admissibility Judge: The Honourable Justice Heard: April 19, 2018, in Halifax, Nova Written Decision: May 2, 2018 Counsel: Carla Ball and Tanya Peter Planetta and Jonathan OF NOVA SCOTIA NSSC 106 Date: 201804 19 Docket: HFX No. 455873 Registry: Halifax the Queen Butcher DIRE 13 of Electronic Communications Joshua M. Arnold Scotia Carter, for the Crown Hughes, for the Defence
By the Court: Overview [1] The Crown alleges that Mr. Butcher 2016. Mr. Butcher wishes to introduce between himself and Ms. Johnston. Both evidence called at the trial, including all evidence can be relied on in this voir dire. [2] In an earlier decision (R. v. Butcher, 2018 presented at Voir Dire 1, I admitted antemortem Crown to show Ms. Johnston’s state of mind relationship with Mr. Butcher. [3] The witnesses on Voir Dire 1 presented end her relationship with Mr. Butcher, but was She said her feelings for him were not as strong was closing and she wanted to eventually The Text Messages [4) The text messages on this voir dire exchanging romantic and affectionate comments of small talk. They also include introspective each individual in their day to day lives. employment issues. [5] These text messages were not provided Voir Dire I. Mr. Butcher says he was exercising and did not want to reveal any aspect of his For its own part, the Crown offers no explanation not presented to the court during Voir Dire they were not asking for them to be admitted, and Johnston was being trnthfiil with Mr. Butcher produced for the court. [6] The text messages in question on this are direct written communications between Page 2 murdered Kristin Johnston on March 26, into evidence a series of text messages the Crown and Mr. Butcher agree that all called on the pre-trial voir dires, NSSC 74), based on the information hearsay evidence proposed by the and present intention as it related to her evidence that Ms. Johnston wanted to unsure of how to best end things. as his feelings for her. Her business relocate and start a new life without him. involve Ms. Johnston and Mr. Butcher with each other. They include a lot comments about issues of concern to This includes their financial and to the court for consideration during his constitutional right to silence defence until the Crown closed its case. as to why these text messages were 1, although the inference is that since because they did not believe Ms. in her texts to him, they were not voir dire are not hearsay evidence. They Ms. Johnston and Mr. Butcher. Mr.
Butcher has indicated that he will be testifying, messages while on the witness stand. [7] These text messages were a spontaneous and Ms. Johnston. In the context of this with March 26, 2016. The Decision in Voir Dire I [8] The antemortem hearsay statements a recognized exception to the hearsay rule. proposed hearsay evidence that were not admissible, because witnesses’ testimony on those aspects of opinion, or were mere summaries by the witnesses or present intention. Here we have Ms. Johnston Butcher in writing. [9] Additionally, the comment, “I just wanted introduced for the truth of its contents on a balance of probabilities, considering the evidence led on the voir dire rules out alternative remaining likely explanation for the statement is or the accuracy of, the material aspects of [10] The remainder of the antemortem hearsay Ms. Johnston’s state of mind regarding her stated intention regarding continuing her relationship very clear instructions in this regard. [11] I found the probative value of Ms. Johnston’s her relationship with Mr. Butcher to be significant. the nature of the relationship between Ms. Johnston her desire to end the relationship. They provide possible motive on the part of Mr. Butcher killer. The trier of fact should have this decision. Admission of the text message evidence necessary for the jury to come to a fair determination Mr. Butcher. Page 3 and will introduce these text back and forth between Mr. Butcher trial, they were written contemporaneous from Voir Dire 1 were introduced under There were some aspects of the earlier the specific reporting the evidence was unreliable, speculative, of Ms. Johnston’s state of mind directly communicating with Mr. broke up with Nick”, that the Crown was not admissible. I was not satisfied test in Bradshaw, that the corroborative explanations such that the only the declarant’s truthfulness about, the statement. statements were admitted to show relationship with Mr. Butcher and her with him. The jury was given statement of intention regarding That evidence tends to describe and Mr. Butcher. It indicates evidence of possible animus and a and go to the identity of Ms. Johnston’s information in order to make an accurate proposed by Mr. Butcher is now of the guilt or innocence of
State of Mind and Present Intention [12) In the alternative, if the texts are hearsay messages proposed by Mr. Butcher to counterbalance Ms. Johnston’s state of mind and present intention with Mr. Butcher. These text messages also present intention regarding her relationship only half of the picture on this issue would [13) Similarly, the texts that relate to Ms. Johnston’s yoga studio and being sued are admissible introduced for the truth of their contents, i.e. to sued or that her yoga studio was closing, but they Johnston’s state of mind and possible stress Page 4 evidence, the jury requires the text the Crown evidence regarding as it related to her relationship go to Ms. Johnston’s state of mind and with Mr. Butcher. For the jury to have be unfair to Mr. Butcher. finances, the closing of her for a limited purpose. They cannot be establish that she was actually being are admissible to show Ms. levels at the relevant times.
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