R. v. D.B.T.

R. v. D.B.T. Court Court of Appeal Date 1996-01-08 Citation 1996 NSCA 54 Docket CAC 117038 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content C.A.C. No. 117038 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Flinn, JJ.A. Cite as: R. v. D.B.T., (a young person), 1996 NSCA 54 BETWEEN: HER MAJESTY THE QUEEN ) Robert E. Lutes, Q.C. ) for the appellant Appellant ) ) ) - and - ) ) ) D.B.T. (a young person) ) Frank DeMont ) for the respondent Respondent ) ) ) ) ) ) Appeal Heard: ) January 8, 1996 ) ) Judgment Delivered: ) January 8, 1996 ) ) THE COURT: Appeal allowed and matter remitted to the Youth Court for trial before another judge, per oral reasons for judgment of Freeman, J.A.; Bateman and Flinn, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: FREEMAN, J.A.: The respondent was charged in youth court with assaulting his girlfriend J.J.P. with a mirror, contrary to s. 267 and threatening bodily harm to his mother M.R.T., contrary to s. 264.1(1) of the Criminal Code on January 15, 1995. When the matter came on for trial April 13, 1995, J.J.P. and M.R.T. refused to be sworn and stated they would not testify. The youth court judge made no comment to them and they were permitted to step down. The Crown sought to recall the police witness in an effort to prove its case through statements taken from J.J.P. and M.R.T. during the investigation, relying on principles relating to the admissibility of previous inconsistent statements for the truth of their contents discussed in R. v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.). When the youth court judge held the criteria of K.G.B. had not been met the Crown called no further evidence and the matter was dismissed for want of a prima facie case. The Crown appealed the refusal to admit the statements. We are not persuaded the trial judge erred in that regard. However, the Crown has applied for leave, which we have granted, to add the following grounds pursuant to Rule 62.04(4) and Rule 65.03 of the Civil Procedure Rules: 3. That the trial judge erred in law in predetermining the manner in which judicial discretion would be exercised with regards to the victim witnesses, and 4. That the trial judge further erred in failing to take judicial action, to have the witnesses sworn or provide a solemn affirmation and to give evidence, by way of reference to and/or application of the judicial power of contempt of court. The youth court judge explained his position as follows: Well, I'm not going to call them back to the stand. They said they wouldn't even be sworn. That they're just not going to give evidence. I am not going to cite them for contempt or institute a contempt proceeding or ask the Crown to bring a contempt proceeding against them. They are the alleged victims of this offence. . . . [The accused's] mother is sitting on one side of him and his girlfriend is all but snuggled up to him on the other side. Months have passed since the alleged offence. Obviously from a domestic point of view, a family point of view, these people do not wish to see this accused punished by the courts and obviously they have for whatever reason forgiven the incident and though I realize the state needs examples to act as a deterrent in weighing the potential harms it is my view that it does society greater harm in a given case to imprison people who have already been victims of violence, and there is no special prison for a reluctant witness, . . . . I am willing to put it on record that I am not going to accede to a request under the appropriate section of the Code to force the witnesses to give evidence. It's fine for the state to have that as its policy but the court is independent of that consideration and must decide every case as it comes before it . . .. The decision whether to prosecute a particular case is within the discretion of the Crown and when that discretion has been properly exercised it is not for the courts to question its wisdom. (See, for example, R. v. Boutilier (Unreported--N.S.C.A. , December 18, 1995.) The Crown's appeal factum states: It is submitted in summary therefore that the trial judge was in error in making a predetermination in open Court, prior to any evidence being called, that the victim witnesses would not be compelled in any way to give evidence. It is also submitted that the trial judge was in error in not taking any action at the time the witnesses refused to be sworn. The least the trial judge should have done is to advise the witnesses of the importance of giving evidence, the significance of their compellability to come to court, their compellability to give evidence, and the possible consequences of failing to be sworn or give a solemn affirmation and to give evidence. . . . [I]t is submitted that a trial judge is required to canvass these options which essentially form the foundation of the exercise of judicial discretion. The youth court judge was responsible for the orderly functioning of his court, and for maintaining its dignity and reputation. It is essential to the operation of that court that witnesses must testify; justice cannot be done if persons called as witnesses can refuse with impunity to give evidence, or even to be sworn. A reluctant witness is obviously a problem, but it is a problem the judge must solve; his discretion for doing so is broad, including contempt proceedings with the possibility of custody or other sanctions as a last resort if cautionary or persuasive efforts fail. In our opinion the trial judge erred in fettering his discretion by appearing to adopt a policy of refusing to compel evidence from alleged victims of offences. Having failed to elicit information as to the basis of the two witnesses' refusal to testify, he further erred in purporting to exercise his discretion in the absence of an evidentiary foundation. In the circumstances of this case, the trial judge's conclusion was not a valid exercise of discretion but rather a refusal to exercise jurisdiction. The appeal is allowed and the matter is remitted to the youth court for trial before another judge. J.A. Concurred in: Bateman, J.A. Flinn, J.A.