BM v. AC, 2019 NSSC 100

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: BM v. AC , 2019 NSSC 100 Date: 2019-03-26 Docket: 104022 Registry: Sydney, N.S. Between: BM Applicant v. AC Respondent LIBRARY HEADING Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: June 6, 2017

Summary: Surreptitiously obtained recording admitted into evidence after voir dire . Weight to be assessed in light of all admissible evidence. Key words: Family Evidence, admissibility, surreptitious recording Legislation: Maintenance and Custody Act, R.S.N.S. 1989, c. 160 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . _________________________________________________________________ SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: BM v. AC, 2019 NSSC 100 Date: 2019-03-26 Docket: 104022 Registry: Sydney, N.S. Between:

BM Applicant v. AC Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: June 6, 2017, in Sydney, Nova Scotia Written Release: March 26, 2019 Counsel: Stephen Jamael, for the Applicant Greg Englehutt, for the Respondent By the Court: [orally] [ 1 ] This is the decision in relation to a Voir Dire held on the preliminary objection raised in Mr. Jamael’s letter of April 25 th . His objection relates to the admissibility of the voice recording attached to AC’s Affidavit. That objection was based on a number of factors: 1. BM didn’t know that he was being recorded; 2.

He denies that it is his voice on the recording; 3. Although the recording was made on his phone, the phone had been reported stolen; 4. AC didn’t have permission to use his phone; 5. AC is familiar with manipulation of electronic recordings. [ 2 ] AC says the evidence is admissible and relevant to the best interests of the child, which is the primary factor to be considered in any proceeding involving children. The response AC makes is that: 1. The recording is not illegal because it doesn’t contravene the Criminal Code ; 2.

BM acknowledged that it’s his voice on some parts of the recording, but he says it’s the voice of [another person] on the rest of the recording, which is not credible; 3.

AC had the phone in her possession, so it is not a stolen phone as alleged; she says BM gave it to her at Christmas; 4. she doesn’t know how to manipulate or edit recordings such as this; and 5. she says the flow of the recording is logical and it doesn’t appear to be manipulated. [ 3 ] In order to meet the threshold test for admissibility, AC must prove, on a balance of probabilities, that: 1. the recording is relevant to an issue that I have to determine; and 2. that the recording is authentic, meaning that it’s not been manipulated, and that the identity of the speaker can be confirmed. [ 4 ] In terms of relevance, as I’ve already said, the best interests of the child is the test that I must use in relation to any parenting hearing.

Evidence of parental conduct and behavior, including domestic violence, would be relevant to any such hearing, because the ability to safely parent in a healthy way is relevant to a court’s determination of what’s best for a child. [ 5 ] The ultimate reliability of this evidence would have to be determined after all the evidence comes in. That, obviously, goes to the weight to be given to any such recording. I accept that there is a threshold relevance that’s been proven by AC.

[ 6 ] In terms of authentication, I am satisfied, on a balance of probabilities, that there’s evidence capable of supporting a finding that the recording is exactly what it purports to be. I am satisfied that the best evidence was made available, that is, that the recording was made straight off the cell phone that was presented in court, and we heard the recording off of that cell phone. [ 7 ] I am satisfied that the recording was not made illegally and that there is no public policy reason not to admit it. Further, I am satisfied that the recording is BM’s voice, and not that of [another person].

I note in particular, that the [other person’s] voice has a Cape Breton twang that is quite apparent to a listener, and that twang was not apparent in the recording. [ 8 ] The flow of the recording is very spontaneous, smooth and logical, and it does not come across as something that has been staged. I am satisfied that it wasn’t manipulated by AC or anyone on her behalf. [ 9 ] I accept the evidence of AC and the [other person] that it is BM’s voice on the recording; they know his voice. I listened to the recordings carefully, as did counsel when we heard the recordings last day.

The context is consistent with it being BM: the nature of the discussion and the subjects that were discussed, are all consistent with it being someone who is very familiar with AC. I am satisfied that there are details only BM would know, and I am satisfied it’s a reasonable, natural inference from the nature of the conversation and the people involved in the recording, that it is BM’s voice. [ 10 ] What weight should be given to the recording will be the subject of argument after the end of the evidence. On the initial objection, I rule that the recording is admitted. MacLeod-Archer, J.