R. v. Ballantyne

2009 BCSC 92 R. v. Ballantyne

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ballantyne, 2009 BCSC 92 Date: 20090130 Docket: 25023 Registry: Prince George Regina v. Leonard Freedom Ballantyne Corrected Judgment: The text of the judgment was corrected on page 1 where changes were made on July 9, 2009. Before: The Honourable Mr. Justice Chamberlist Oral Ruling re: Editing January 30, 2009 Counsel for the Crown: A.J. MacDonell and M. Brown Counsel for the Accused: S. Narbonne and S. Merrick Place of Trial/Hearing: Prince George, B.C. [1] This is my ruling on the Crown's application to place before the jury a certain portion of statements contained in a recording of a telephone conversation the accused had with his sister. [2] The accused is charged with second degree murder. There are numerous statements or portions of telephone communications the Crown wishes to tender as part of the Crown's case. [3] The Crown and defence have been able to edit most of the telephone conversations but have asked the court for assistance with respect to one of those telephone conversations. Earlier this week I ruled on the editing of one of the controversial portions leaving only one controverted portion of conversations they were unable to agree on. This conversation is labelled Conversation No. 2 in the Crown's booklet of wiretapped conversations. After submissions, I have determined that the portions sought to be

edited out by the defence must succeed for the following reasons. Conversation No. 2 [4] This is an authorized wiretap being a Part VI Criminal Code interception of private communications. The portion sought to be edited out is found on page 10 of the transcript of the recording between the accused and his sister, intercepted on October 10, 2006, at approximately 4:36 p.m. and consists of the following portion of that conversation, starting at line 8 and continuing to line 17: 8 Lotta: Ah. Ballantyne: 'Cause they know I'm going to get nailed over there eh. Lotta: Yeah. Ballantyne: So whatever, [Trans: But if] they offer me 15, I'm going to take it man. 11 Lotta: Yeah. Ballantyne: That's a good deal, Lott. If I get 15 man, you know what I mean? Lotta: Yeah. Ballantyne: Fifteen years is a good deal man. Better than a fucking life bit, man. Lotta: Yeah that's right. 16 Ballantyne: Cause they can give me life for each one. Lotta: Ahh. [5] There is agreement between the parties that if this portion is edited out by my ruling then, as I understand the submissions from counsel, the balance of the conversation should also be edited out. Position of the Crown [6] The Crown submits that in this portion of the conversation the accused is having with his sister it is clearly about the subject murder and is clearly an admission against ­­­­­­­­­­­­­­­­­interest in that the accused is

admitting to his identity as the shooter and is clearly an admission against interest. Of course an admission against interest made by the accused is admissible as a recognized exception to the hearsay rule. Given that this portion of the conversation all relates to what happened in British Columbia and is clearly contrary to his interest, the Crown submits it should not be excluded because it is relevant and probative. [7] The Crown submits that prejudice as referred to in the case law means prejudice in the terms of the jury being misled and that in this case there are no concerns of the jury being misled by the statement as often happens when there is possible reference to similar fact evidence or character evidence. The Crown, as I understand it, submits that the admission by the accused is a straight admission with respect to the subject charge. Going on, the Crown concedes that although the admission is certainly contrary to his interest, it is not prejudicial as that term generally is understood in the case law. [8] The defence submits that in the same conversation there is already reference to his identity as the shooter and also other references in other conversations. Thus the defence submission is that this is not the only evidence that will be before the jury with respect to the identity of the accused as the shooter. [9] Indeed, following the earlier submissions, I

asked defence if it would be the theory of the defence to the jury that identity of the shooter was still an issue. The defence, through Ms. Narbonne, clearly and unequivocally submitted that the defence would not be suggesting to the jury that the accused is not the shooter. [10] The defence further submits that if this portion of the conversation is admitted into evidence then it is so highly prejudicial to the accused because of the overall inference that if he is willing to go to jail for 15 years then he must be guilty of the offence as charged. The defence also submits that juries are not supposed to know of the possible penalty and that these lines in the conversation which would suggest to the jury that the accused receiving 15 years is no big deal is highly prejudicial to the accused's fair trial. Analysis [11] The Crown, in its submissions, referred to R. v. Terry[1], both at the Court of Appeal level and the Supreme Court level. In that case the identity of the accused was certainly in issue. The admissibility of a poem, allegedly written by the accused, where the accused described a killing, was in issue. That is not the case here as the defence has clearly indicated that they will not be suggesting to the jury that the accused is not the shooter and other identity evidence is available. [12] Thus, the concern here is the trial fairness issue. [13] In R. v.

Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, the Supreme Court of Canada held that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value. [14] In R. v. Pritchard, 2002 BCSC 459, Mr. Justice Preston, at paragraph 32, succinctly dealt with the rule of evidence governing exclusion of evidence dealing with the balancing of prejudicial effect versus probative value. He stated: [32] The rule of evidence governing the exclusion of evidence on the basis that it is more prejudicial than probative in these circumstances is set out in R. v. Morris, [1983] 2 S.C.R. 190 and R. v. Lepage, [1995] 1 S.C.R.

654. The rule requires: 1. that the evidence be shown by the Crown to be relevant to some issue at trial before the court will embark on an enquiry; 2. that relevant evidence not be excluded solely because it incidentally imports otherwise inadmissible hearsay, opinion, or evidence of bad character; 3. that relevant evidence only be excluded when the prejudicial effect of the incidentally imported inadmissible component outweighs the probative value of the relevant evidence and cannot be redressed by limiting instructions to the jury. [33] The evidence must be relevant to an issue in the case but not necessarily to an element of the offence. In this regard, the Crown referred me to S.G.G. v. The Queen, [1997] 2 S.C.R. 716, 116 C.C.C. (3d) 193 at pp. 217 and 218, where Mr. Justice Cory, speaking for the majority on this point, said: Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means: see R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para.

135. Evidence of motive, for example is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, [1979] 2 S.C.R. 821, 47 C.C.C. (2d) 24, 98 D.L.R. (3d) 111. [15] In this case, the evidence sought to be tendered before the jury is not the only evidence of the identity of the accused as the shooter. In addition, evidence led by the Crown in this case leads to the conclusion that possible defences to the charge facing the accused arise relative to the death of the victim. [16] I am of the view that the admission of these words indicating that the accused would be willing to receive a term of imprisonment for 15 years would be overly prejudicial to the accused when the jury considers whether the Crown has negatived the possible defences of self-defence and defence of home which have thus far, on the evidence produced by the Crown, become possible live issues in this trial. [17] I am unable to imagine any instruction to the jury which would negative the effect of the impugned words when the jury considers the possible defences of self-defence and defence of home. One must ask whether the jury members could impartially consider these defences when the accused has himself concluded that he would happily accept a 15 year sentence. Surely, the elephant in the jury room

would be this statement when consideration of those defences were being discussed. As a result, the balancing of the probative value against the prejudicial effect leads me to the conclusion that the prejudicial effect is simply too great to allow these words to go before the jury. [18] Given the success of the defence position with respect to the exclusion of this particular evidence, it follows that the balance of the statement commencing at line 18 to the end of page 13 must also be excluded. "Chamberlist, J." The Honourable Mr. Justice Chamberlist [1] 91 C.C.C. (3d) 209, (1996) 2 S.C.R. 207