R. v. Howe

R. v. Howe

Application dismissed: no legal duty to create or record the September 15 contact; even assuming non‑recording an arguable breach, defendants failed to prove material prejudice to the right to make full answer and defence or that police conduct met the high threshold for residual abuse of process; alleged perjury not established; evidence (audiotaped statement of Sept 16) and officers' evidence were credible so no stay or exclusion warranted.

Citation
2016 NSSC 151
Parties
Crown: Her Majesty the Queen; Defendant: Duayne Jamie Howe; Defendant: Patrick Michael James; Defendant: David John Pearce
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
30 June 2016
Procedural Posture
Criminal / Pre Trial Application for Stay and Voir Dire (abuse of Process)
Outcome
Application dismissed in all respects; no stay of proceedings granted
Legal Topics
Abuse of Process, Stay of Proceedings, Section 7 Charter, Lost Evidence, Disclosure, Witness Statements, Police Misconduct, Perjury Allegation
Source Language
English
Criminal Law Constitutional Law Evidence Organized Crime Abuse of Process Stay of Proceedings Section 7 Charter Lost Evidence +4 more

Case Brief

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Parties

Her Majesty the Queen

Crown

Duayne Jamie Howe

Defendant

Patrick Michael James

Defendant

David John Pearce

Defendant

Procedural Posture

Criminal / Pre Trial Application for Stay and Voir Dire (abuse of Process)

Legal Issues

  1. 1 Whether police had a constitutional or legal duty to create/record a statement from a potential complainant at first contact
  2. 2 Whether failure to record or take detailed notes breached the accuseds' s.7 right to make full answer and defence
  3. 3 Whether officers used threats or inducements amounting to police misconduct/duress that would justify a stay as an abuse of process

Ratio Decidendi

Application dismissed: no legal duty to create or record the September 15 contact; even assuming non‑recording an arguable breach, defendants failed to prove material prejudice to the right to make full answer and defence or that police conduct met the high threshold for residual abuse of process; alleged perjury not established; evidence (audiotaped statement of Sept 16) and officers' evidence were credible so no stay or exclusion warranted.

Court Disposition

Application dismissed in all respects; no stay of proceedings granted

Orders

  • Application for stay of proceedings dismissed
  • No exclusion ordered of complainant R.M.'s out-of-court statements or viva voce evidence