R. v. W.(N.), 2017 NSPC 38

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. W.(N.), 2017 NSPC 38 Date: July 19, 2017 Docket: 3015277 Registry: Halifax Between: Her Majesty the Queen v. W.(N.) RESTRICTION ON PUBLICATION:

section 110 YCJA - Identity of Young Person and

section 111 – Identity of Victim or Witness DECISION ON THE EVIDENCE OF ALIBI Judge: The Honourable Judge Anne S. Derrick Heard: July 19, 2017 Decision: July 19, 2017 Charges:

section 235, Criminal Code Counsel: Terry Nickerson and James Giacomantonio, for the Crown Roger Burrill and Anna Mancini, for W. (N.) By the Court: [1] During N.W.’s direct examination, in response to questioning about his activities on the night J.C. was murdered, he said the nightended for him when M.B. drove him home and he went inside and to bed. [2] The Crown identified this evidence as evidence of alibi.

This has raised several questions: 1) Is this alibi evidence? 2) If it is, was the Crown given timely and adequate notice of it? 3) If it is alibi evidence, can the Crown cross-examine N.W. on it? 4) Was there late notice such that an adverse inference may be drawn? [3] Mr. Burrill says this is not alibi. He says it is “a denial with supplemental alibi aspects.” [4] I find it is alibi evidence. It is a claim that N.W. was elsewhere at the time of J.C.’s murder. (R. v. Nelson, (ONCA), [2001] O.J. No. 2585, para. 8) The inference he is inviting me to draw is that he therefore could not have killed him. [5] Mr.

Burrill relies on R. v. Wright, an Ontario Court of Appeal decision, 2009 ONCA 623 , [2009] O.J. No. 3550 (C.A.) [6] I find R. v. Wright, to be distinguishable. In that case, the witness’ evidence was incorrectly characterized as alibi evidence. On thatbasis, it was concluded by the court that the trial judge should not have given the adverse inference instruction. [7] In Wright, the Ontario Court of Appeal concluded that had Mr. Wright disclosed his defence – that he went along part of the way

but did not ultimately participate with his associates in their commission of a violent robbery – 24…he would have implicated himself by acknowledging his presence at the outset of the transaction with those who eventuallycommitted the crimes. Prior disclosure of this kind of defence could well generate new theories of liability based on accessorialresponsibility.

To require an accused to disclose this kind of defence and thereby implicate himself in the crime, or risk an adverseinference instruction is to impose a significant intrusion on the accused's right to silence. [8] That is not comparable to what I am dealing with in N.W.’s case. N.W.’s alibi would not have implicated him in the murder. Itcould have implicated him in other offences arising out of his presence in a stolen car, where there was a loaded prohibited weapon thatwas used in the Lakecrest Drive shooting.

But his claim of being at home in bed in the very early morning hours of March 29, 2016, ifultimately believed, constitutes a complete defence to the murder charge. [9] The next issue I must confront is the issue of alibi notice. The Crown says it did not receive notice from the Defence of N.W.’salibi. As the Supreme Court of Canada established in R. v.

Cleghorn, (SCC), [1995] 3 S.C.R. 175, “…proper disclosureof an alibi has two components: adequacy and timeliness.” (para. 3) The Crown says learning during direct examination what N.W. hadto say about his whereabouts around the time J.C. was shot is neither timely nor adequate. [10] What the Crown did know before N.W. testified was that N.W.’s mother had been spoken to by a police officer assisting thehomicide investigators. I heard about the facts from retired Cst. Daniel Berrigan who testified in the voir dire. [11] Mr.

Berrigan testified that he had spoken to N.W.’s mother, [M...] on a couple of occasions on the telephone and also at herresidence on Kennedy Drive. This was in early May 2016. It was before N.W. was arrested. Cst. Berrigan knew [M…] and had a positiverapport with her. He encouraged her to have N.W. talk to the police. [M…] was harbouring some resentment over how investigators hadconducted a search of her residence on April 1. She and Cst. Berrigan talked about that too. [M…] also told Cst.

Berrigan that she knewN.W. wasn’t involved in the murder of J.C. because he had been helping her all night with her migraine headache. Mr. Berriganremembers that she told him N.W. was getting compresses. [M…] said this had lasted all night. [12] Mr. Burrill says this is all the notice the Crown needed in relation to N.W.’s alibi. Equipped with this information the Crown hasnot been taken by surprise and had the opportunity to conduct a meaningful investigation into N.W.’s whereabouts. [13] The problem with Mr. Burrill’s argument is that what [M…] provided to Cst.

Berrigan cannot be considered adequate in my view.It is only reasonable to compare it to what I know N.W. would have provided in the nature of specifics. In his testimony N.W. said hewas helping his mother deal with her migraine but that he then played video games with his little brother and afterwards went out. Hewas out for awhile with M.B., L.D., L.C. and J.C. He says M.B. dropped him off home in the very early morning and he went to bed, hisyounger brother sleeping with him.

That is what a sufficient notice of his alibi would have looked like. [14] It would be speculative to suggest that there could have been no meaningful investigation of an alibi disclosed by N.W. with thedetails he testified to in his direct evidence. The Ontario Court of Appeal in R. v. Borde, 2011 ONCA 534 refers to the placing of “animpossible burden on the Crown to show what the investigation it was unable to do would have yielded.” (para 18) [15] There is now no opportunity for the Crown to meaningfully investigate N.W.’s alibi. The night of March 29 is almost 16 months inthe past.

Also, the Crown indicates that N.W.’s mother has sat through most of this trial. What meaningful opportunity may have existedto investigate the alibi has largely, if not entirely, evaporated. [16] What is the significance of these conclusions? 1) I expect I will be invited by the Crown to draw a negative inference from N.W.’s late disclosure of an alibi. I may do so. That is not abridge I must cross now. 2) What the Crown is seeking now is the right to cross-examine N.W. on the reasons for his later disclosure. The Ontario Court ofAppeal in R. v.

Alphonso, 2008 ONCA 238 held that: 9 The Crown was entitled to explore the appellant's alibi evidence on cross-examination and test that evidence for details or theabsence of details as a means of challenging the appellant's credibility. Details can include questions concerning the appellant'swhereabouts and the people the appellant was with at the relevant time… Conclusion [17] I find this is a classic alibi situation with implications for N.W.’s right to silence due a lack of timely and adequate notice. TheCrown may cross-examine on the alibi and seek to have a negative inference drawn. Derrick, P.C.J.