R. v. G.L.J.P.

R. v. G.L.J.P. Court Supreme Court Date 2003-07-25 Citation 2003 NSSC 168 Docket CRSK 11025 Judge/Registrar/Adjudicator Boudreau, Allan (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. G.L.J.P., 2003 NSSC 168 Date: 20030725 Docket: CRSK 11025 Registry: Kentville Between: Her Majesty the Queen v. G. L. J. P. Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Allan P. Boudreau Heard: July 21, 2003, in Kentville, Nova Scotia Written Release of Decision: August 12, 2003 Counsel: Darrell Carmichael, Esq., for the Crown Joel Pink, Q.C., on behalf of child subpoenaed Robert C. Stewart, Q.C., for the defendant Boudreau, J., (Orally): INTRODUCTION [1] The present motion or application raises the appropriateness of the subpoena of a ten year old boy in this criminal proceeding. G. L. J. P. is charged on a five count indictment dated September 30, 2002. The charges allege: (1) assault with a weapon, (2) aggravated assault, (3) using a weapon in committing a sexual assault, (4) unlawful confinement and (5) uttering a death threat. All accusations are alleged to have occurred during a protracted incident on November 9, 2001 and all are against the person of D. M.. [1] The boy under subpoena is the now ten year old son of Ms. M.. All the factual allegations giving rise to the charges occurred in Ms. M.’s residence when only she and Mr. P. were present. Mr. P. contends that the testimony of the boy is essential to show that Ms. M. has not told the truth about the state of their relationship and other collateral matters, particularly with regard to the evening of November 8th and the morning of November 9th, 2001. Mr. P. contends that credibility is seriously in issue in these proceedings and unless he is permitted every opportunity to challenge Ms. M.’s credibility, then he will be denied his right to a fair trial and to make full answer and defence. [2] On the other hand, counsel on behalf of the boy contends that Mr. P. has not shown that the boy “is a person likely to give material evidence in this proceeding” as required by s. 698(1) of the Criminal Code. He contends that for this and other policy or cost benefit reasons, the subpoena should be quashed. FACTUAL BACKGROUND [3] By way of factual background, Ms. M. and Mr. P. had a relationship which lasted several months prior to November 9, 2001. Mr. P. had a few of his personal things such as grooming supplies, a few clothes, etc., at Ms. M.’s house. He was spending many, if not most, nights at her house. She claims that he did not live exclusively at her house and that he had his clothes in garbage bags in his car and that he spent the night elsewhere on occasion. [4] Ms. M. testified that the relationship had broken off when Mr. P. had moved out some two weeks prior to the alleged offences. She testified she had taken initial steps to obtain a peace bond against Mr. P. but that she never followed through with a peace bond application. She testified that Mr. P. arrived at her house on the evening of November 8th, 2001, basically uninvited or unexpected. She said she could not recall how he came to be there. She said he arrived carrying a roll of duct tape which he placed in her bedroom. She testified that she could not recall having anything whatsoever to do with Mr. P. during the two weeks prior to November 8th. [5] Ms. M. and an acquaintance, L. M., were both attending the same community school at the time of the charges. They had been commuting together, sometimes taking Ms. M.’s car, sometimes Mr. P.’s car and sometimes going with Ms. M.. Ms. M. testified that they had planned to be driven to school by Mr. P. on the morning of November 9th, as she said had been the case earlier that week, contradicting Ms. M. that she had had nothing to do or could not recall having had anything to do with Mr. P. for some two weeks. [6] Ms. M. also contradicted Ms. M. on several other aspects of her testimony. Ms. M. testified she, herself, had not been the one primarily providing the transportation to school. She also testified that it was not to be Ms. M.’s car on the morning of November 9th and she also testified that Ms. M. did not tell her that she “could not write down” an email address when Ms. M. called around 10:30 of that morning, all of which had been testified to the contrary by Ms. M.. [7] Ms. M. testified that after she and Mr. P. got up the morning of November 9th, she got the children, the children being the boy in question and his younger sister, ready for school. She denied that it was Mr. P. who got the children ready for school. She testified that Mr. P. drove her in his car and they took the children to school but she denied that there was any argument or fighting in the car between she and Mr. P.. She stated that she told Mr. P. they would talk about their relationship after the children had been taken to school. [8] Ms. M. testified that, after dropping the children off at school, Mr. P. drove the two of them back to her house. She said she had a sick feeling in her stomach as if she were scared of what may be about to happen. She said she decided to go to her neighbours house when she got out of Mr. P.’s car in her driveway. After they arrived at her house Ms. M. started to walk towards her neighbour’s house unimpeded by Mr. P., but she went only part way there before she decided she needed a cigarette, which were located in her house. She said she then abandoned the idea of continuing to her neighbour’s house and returned and unlocked the door to the house so she and Mr. P. could enter. [9] Ms. M. testified that she went directly to the couch in the living room where she sat down and picked up the telephone to call the police. She said she never had a chance to dial before she was attacked by Mr. P. holding a large kitchen knife. This is when she alleges she received the wound to her face. She testified the incident continued from there for some three hours until she jumped from Mr. P.’s moving car on the main street through New Minas at around 11:30 that morning. [10] Ms. M. has also testified that it was her plan to use her [...] to go pick up Ms. M. and drive the both of them to school that morning. However, the police evidence shows that Ms. M.’s car was not present at her house that morning. I note these differences in testimony to show that there are already apparent contradictions between the testimony of Ms. M. and that of other witnesses. The defence argues that the boy has knowledge that will also contradict the testimony of Ms. M.; for example, regarding the state of the relationship between Ms. M. and Mr. P. on November 8th and where Mr. P. had been staying during that week; also as to whether Ms. M. was telling the truth about what occurred on the morning of November 9th before the children were dropped off at school, as well as other general collateral matters regarding Mr. P.’s involvement with Ms. M. and her two children during the relationship. ISSUES [11] I will now discuss the issues raised by the parties on this application. The first issue was raised by the defence. It is whether I am functus officio (in lay terms lack jurisdiction) on this application because I earlier, on June 23, 2003, dismissed a similar motion by the Crown to quash the subpoena in question. The second issue is, if I am not functus officio, whether I should reconsider my earlier dismissal of the Crown’s motion regarding this subpoena. The third issue is, was the subpoena issued by the prothonotary in compliance with the Criminal Code, in particular s. 698(1). The fourth issue is, has it been established that the boy “is a person likely to give material evidence in this proceeding”? The fifth issue is, if the boy is found to be likely to give some material evidence in this proceeding, which as I understand is evidence which may tend to support an argument against the credibility of Ms. M., is the evidence necessary for a fair trial and in order to accord Mr. P.’s right to make full answer and defence, or, are its possible benefits to the defence far outweighed by other policy considerations? ANALYSIS [12] With regard to the first issue, it is clear that I am not functus to consider or reconsider a motion to quash the subpoena in question. All of the jurisprudence from the Court of Appeal of this Province, as well as other courts, indicates that a trial judge is not functus until the end of the trial, which is after a verdict and/or a sentence has been finalized. [13] The second and subsidiary question is whether I should reconsider my earlier ruling. The jurisprudence indicates that judges should approach this question with some degree of caution and restraint. Otherwise rulings could be argued or reargued ad infinitum. There should, therefore, be good reason to reconsider an earlier ruling. The cases indicate that good reason could be new evidence. [14] In this case we not only have the new and additional evidence of Ms. T. and Dr. Perrott, but the applicant is a different party, namely, the boy himself. Also, new arguments or points have been raised on this application. The Crown presented the previous motion and made it clear that it was not representing the boy. In fact, I have serious reservations that the Crown is the proper party to make an application to quash a subpoena issued to a witness, especially to a lay person as opposed to a Crown official. Such a reservation was expressed in the Manitoba Court of Appeal case of R. v. Robinson (2000), 145 Man. R.(2d) 123. I find that it is appropriate in the circumstances, and I will therefore go on to consider the present application on behalf of the boy. [15] The third issue raised on behalf of the boy is whether the subpoena was issued in compliance with the Criminal Code. The prothonotary testified as to how she came to issue the subpoena. This subpoena, along with several others, was taken to the prothonotary by a sheriff’s officer on my instructions after discussions in court on the first day of the trial. This was the prothonotary’s understanding based on the information given to her by the sheriff’s officer and she did not talk to or conduct any separate inquiry of Mr. P., who was then in court attending his trial and acting in his own defence. [16] Counsel on behalf of the boy contends that since the prothonotary did not conduct any separate inquiry or receive any direct representations from Mr. P. that she could not have acted judiciously and for that reason alone the subpoena should be quashed. On the other hand, the defence contends that there were sufficient discussions and representations by Mr. P. in court to satisfy the requirements of the Criminal Code and that the prothonotary was made aware the subpoena was being issued at the direction of the court. The defence contends that nothing further was required. [17] Counsel on behalf of the boy contends the proper course is to quash the subpoena because the prothonotary herself did not conduct an independent inquiry into the merits of Mr. P.’s request for a subpoena. Counsel states that Mr. P., or counsel on his behalf, could thereafter reapply for a new subpoena and if granted then a new application to quash could be made and heard. That is, go through the whole process again. With all due respect, I cannot agree. [18] When one considers that an issuer of a subpoena is not required to act judicially but only judiciously, it is difficult to see how a subpoena could be refused to be issued initially on the representations of the defence in this case. The issuer of an In-Province subpoena does not weigh the reasons advanced for a subpoena for this would be acting judicially. That is not the function of an issuer of a subpoena. I find that in this case the prothonotary acted judiciously because she was made aware by the sheriff’s officer that the subpoenas were to be issued at the direction of the Court. Therefore, all the requirements of the Criminal Code and the jurisprudence were met by the prothonotary in this instance. I also find that the court acted judiciously in directing the subpoenas be issued after discussions and representations by Mr. P.. A judicial determination of the reasons for the subpoena is not required at the issuing stage. Otherwise evidence would have to be presented and weighed and findings of fact made at that stage. That is surely not required. [19] “Judicious” means “careful” or “showing sound judgment” and there is nothing to indicate that the court or the prothonotary were not careful in the issuance of this subpoena. We have to be cautious not to overburden the administration of justice unnecessarily by requiring evidence and findings of fact at stage of issuing subpoenas. All that is required is being careful. Subpoenas are not search warrants and they can always be challenged before any rights or sanctions are brought into question. Of the tens of thousands issued each year few are ever challenged. [20] Counsel on behalf of the boy has requested that I revisit my decisions in R. v. Ross (1994), 134 N.S.R.(2d) 258, and this court’s decision in R. v. Regan (1998), 173 N.S.R.(2d) 298; however, in view of my findings that the subpoena in question was properly issued, I see no such need and I decline to do so. As I said in R. v. Ross, supra, subpoenas which are challenged and found to be wanting are not necessarily a nullity or void, but they are only subject to being set aside. [21] I will therefore go on to the fourth issue and consider the present application on its merits, that is, with regard to whether the boy is a person who is likely to give material evidence in this proceeding. [22] Counsel for the boy contends that the boy cannot possibly give material evidence in these proceedings because he was not present when the alleged acts were committed. On the other hand, the defence contends that credibility is always an issue, particularly where the alleged acts occurred when only the complainant and the defendant were present. The defence contends that one way to attack or challenge the credibility of Ms. M. is to show that she may have been untruthful in her testimony of the events leading up to the alleged offences. They contend that the boy was the only other person present and who can testify to the events leading up to and shortly before the alleged offences. [23] There is already some contradictory testimony as I have recited earlier, which it can be argued supports the contention that Ms. M. was not truthful about those events. Besides Mr. P. and the boy there is no indication that anyone else possesses some of that knowledge. [24] Counsel for the boy states that whether or not the boy possesses that knowledge is not relevant, that it is not evidence which is material to these proceedings because it cannot go to prove any of the essential elements of the alleged offences. Counsel for the boy states that one of the essential elements of the offences is intent. As we know, intent involves the state of mind of an accused. [25] Mr. P. in his request for the subpoenas on the first day of his trial alluded to a possibility of accident. Obviously, credibility looms large in such a defence. The defence contends it must be able to avail itself of every opportunity to challenge Ms. M.’s credibility if it is to be accorded its right to make full answer and defence. It stresses the importance of the cumulative effect of contradictions in testimony when it comes to assessing credibility and consequently raising a reasonable doubt. The defence argues it will be denied its right to a fair trial if the subpoena is quashed because it will be denied some evidence which will impact upon Ms. M.’s credibility. The defence has indicated that Mr. P. intends to testify and directly challenge Ms. M.’s testimony, thereby putting Mr. P. and Ms. M.’s credibility squarely in issue. [26] We should look at what does impact upon credibility in cases such as this. Counsel for the boy argues that it is mainly assessing the witness on the witness stand; demeanour, etc. However, we are told by experts that that is one of the most unreliable indices of credibility because many other variables in a person’s background, such as age, social, racial or cultural, economic, religious or emotional factors, as well as upbringing and others can affect the way individuals present their testimony in court. In other words, we must resist any tendencies towards a stereotypical type of analysis. It is my understanding that the consistency of a witness’s testimony within itself and with the testimony of others, particularly on significant matters, is a more reliable way to assess credibility. [27] In this case we are told by Ms. M. that she had nothing to do with Mr. P. as far as she can recall for approximately two weeks prior to the alleged offences and that he came into the house on the evening of November 8th, basically as an intruder or uninvited person carrying duct tape. What conclusion or inference would this testimony support? It would obviously support an argument of premeditation or planning and go to the state of mind or intent of Mr. P.. It could be argued that such evidence goes to the essential element of “intent” for most, if not all, of the offences and that it negates a defence of accident for some of the alleged offences. The defence contends Mr. P. should be permitted to present evidence, in particular the testimony of the boy, which it says will contradict Ms. M.’s testimony and thereby negate possible unfavourable inferences from her testimony with regard to “intent”. [28] It may be that the Crown will concede that the court should not draw any inferences whatsoever against Mr. P. from the fact that he allegedly imposed himself upon Ms. M. on the evening before the alleged offences while carrying a roll of duct tape. However, I have no indication that this is or will be the case. [29] I will now go on to consider the test for upholding the subpoena, which is that I must be satisfied that the boy is “a person likely to give material evidence in a proceeding to which this act applies”. This Act being the Criminal Code of Canada. My initial impression was that the person need only be a person likely to “possess” or “have” material evidence; however, the drafters of the legislation used the word “give” not “possess” or “have”. Does “to give” mean anything different than “to possess” or “have”. Webster’s New World Dictionary, College Edition, defines “give” in many ways; among which are: “to hand or turn over, deliver, to let have in answer to a petition, to turn over the possession of to someone, to part with for some cause, to surrender, to utter, emit or produce, put in words, communicate, state, etc. [30] On the other hand “possess” is defined in several ways, for example, to have, to keep control over, maintain, to have knowledge of, to gain control over. “Have” is defined in much the same way as “possess”; such as to hold in the hand, or in control. In fact, “have” and “possess” are described as synonymous. [31] Therefore, on a literal and ordinary meaning of the phrase “likely to give material evidence” - it means more than simply possess or have. It means also being able to deliver it, in this case in oral testimony. [32] My conclusion in this regard is also supported by the comments of Justice Hill in R. v. Dickie (1996), 110 C.C.C.(3d) 573, where he stated the following at page 575: “. . . legal sufficiency is absent where the application establishes no more than that the prospective witness “may have” evidence material to the case. . .” [Emphasis Added]. I am also satisfied that the burden is on the party requesting that the subpoena be upheld to show, on a balance of probabilities,that the person under subpoena is likely to give material evidence. In the case of most persons under subpoena all that would be required would be to show a likelihood of possession of the evidence because it is usually a simple matter of delivering the evidence through oral testimony. However, there may be cases where a closer scrutiny of the likelihood that the person will give the evidence is warranted, if not in fact demanded. These could be cases involving the subpoena of a young child, a person who has suffered a stroke or suffers from alzheimers, or persons of all ages who suffer from serious mental or physical afflictions, which may render them unlikely to give material evidence. [33] In this case Dr. Stephen Perrott, a clinical psychologist testified. He was qualified as an expert witness able to give opinion evidence generally on the possible effects, both immediate and long term, on children around age ten testifying in court and, more particularly, on those same possible effects on the boy in question based on Dr. Perrott’s interview of the boy. [34] Dr. Perrott testified as to the possible effects of testifying on children in general and upon the boy in particular. His evidence did not convince me that there were any unusual risks with the boy testifying in this case. There is always stress associated with persons of all ages testifying in court. It would therefore be desirable if persons of all ages, especially lay persons and young persons, did not have to testify in court. However, that is a daily occurrence in our courts. There is no evidence before me to indicate that children are permanently adversely affected because of testifying in court. Dr. Perrott was unable to provide such evidence. There was nothing in particular that he could predict with respect to the boy himself, except that the boy might blame himself and lose trust in authority if he felt the proceedings had gone badly for his mother. At one point Dr. Perrott took on the role of an advocate rather than an impartial expert when it came to children testifying in court. It was clear he frowned upon it. He took up the legal arguments for the boy, as expressed by the boy’s counsel, in denouncing “fishing expeditions”. In the final analysis I found there was no overriding psychological reason why children aged ten years, or this boy in particular, should not testify. [35] On the other hand, Dr. Perrott gave opinion evidence relevant to the question of whether the boy was likely to give material evidence in this case. He said he had interviewed the boy for one hour and fifteen minutes. He said that because the boy had not been asked to recall events surrounding the alleged offences prior to the recent events surrounding the subpoena and that because the boy had taken the role of protector of his mother and sister from attacks in the future, that the boy had formed a distorted picture of what happened. The boy did not see his mother for several days after the alleged offences. Dr. Perrott testified that the boy was clearly factually wrong about the basic events of that day; that the boy saw himself as the defender of his mother. Dr. Perrott testified that for those reasons the boy was very unlikely to be able to remember, let alone accurately recount any of the events of the days surrounding the alleged offences. That his testimony would be most unreliable. We should keep in mind that this occurred some eighteen months ago and the boy did not directly witness what one would consider significant events surrounding the alleged offences. [36] When I considered the evidence alluded to by the defence on this application in light of the testimony of Dr. Perrott, relative to his interview with the child, I find that the defence has failed to satisfy me on a balance of probabilities that the boy is “a person likely to give (and I underline give) material evidence in this proceeding”. In fact, the evidence convinces me that that is most unlikely. Therefore, the most probable scenario in this case is that the boy will be put through the difficult and stressful experience for nothing. I therefore quash the subpoena for the boy in question because I am not satisfied that he is a person likely to give material evidence in these proceedings. [37] If I had found that the boy was a person likely to give material evidence in these proceedings, then I would have had to go on and consider issue number five and determine whether the evidence sought to be adduced was necessary for Mr. P. to have a fair trial and to make full answer and defence, and whether it was so marginally relevant that it ought to be excluded for other policy considerations. In view of my findings and my ruling on the fourth issue, it is not necessary for me to consider issue number five at this time. [38] I will issue an order quashing the subpoena, prepared by counsel for the boy. Boudreau, J.