S.C.C. No. 02551 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Matthews and Freeman, JJ.A. BETWEEN: KEVIN JOSEPH DOUCETTE and HER MAJESTY THE QUEEN Respondent Richard W.P. Murphy for the appellant Denise C. Smith for the respondent Appeal Heard: January 23, 1992 Judgment Delivered: January 23, 1992 THE COURT: Leave to appeal permitted, the appeal allowed, the conviction set aside and new trial ordered per oral reasons for judgment of Matthews, J.A.; Clarke, C.J.N.S. and Freeman, J.A. concurring. The reasons for judgment were delivered orally by: MATTHEWS, J.A.: The appellant, on March 26, 1991, was found guilty of break and enter into lobster car situate at Metaghan wharf and the theft of lobsters therefrom. He now appeals from that conviction. The main issue on appeal is whether the trial judge erred in admitting into evidence a statement by the appellant to an R.C.M. Police officer without holding a voir dire. The constable made notes of conversation he had with the appellant respecting some of the circumstances surrounding the offence. The trial judge agreed with the submission of Crown counsel that the conversation should not be admitted into evidence because of an alleged inducement. Whether Crown counsel was correct in his submission is not in issue on this appeal. There was no voir dire held to determine if the statement was voluntary. The trial judge refused to permit the constable to read his notes into the record however, over the objection of defence counsel the constable did testify as follows: "CORPORAL OLDFORD: Okay, following my conversation with Kevin Doucet had talked with Meteghan R.C.M.P. members, mainly Constables Turcotte and Doucette and informed them of several places that they should look for stolen lobsters and informed them of numerous people that had purchased the lobsters based on the information that had received. further advised them of the price that was paid for the lobster and the quantity of lobsters purchased. Further to that advised them of the time of day the lobster were purchased and for some parties the location the purchase was made. also advised him at the same time that my information was that there were axes used in the commission of the offence that were in the ocean, in the water near the scene and also informed them that crates the lobsters had been in are in the ocean and that the lobsters had been sold live to certain people and had addresses for some of the people. None of which knew myself, didn't know any of the people." The trial judge in effect permitted into evidence what he previously said he would not allow: the conversation between the constable and the appellant. That should not have been done without a voir dire to determine if the statement was voluntary. See Erven v. The Queen (1978), 1978 CanLII 19 (SCC), 44 C.C.C. (2d) 76 (S.C.C.) 25 N.R. 49. In rendering his decision the trial judge said: "The evidence of the Crown witnesses also establish that there was an axe found in the water by Corporal. Brian Oldford of the Ident Section and it's been established by exhibit here today that the paint samples taken from the axe as well as from the door would indicate that the axe was used to gain access to the lobster car and thus to the amount of lobsters in the car floating near the wharf at Meteghan, Digby County, Nova Scotia." ... "The crucial evidence think that comes out in cross examination is the tying in of the axe from Corporal Oldford and the finding of the axe in the water near the car which was found as result of conversation with Corporal Oldford and the defendant, Kevin Doucet. ... I'm satisfied by this tying in of the axe through Doucet through Corporal Oldford that Mr. Doucet was in fact the person who did break and enter the certain place, to wit, the lobster car at Meteghan wharf and did commit the indictable offence of theft and find him guilty of the offence as charged." In fact the axe was not found in the water by Corporal Oldford or as result of his conversation with the appellant. It was found there by the owner of the lobster car before that conversation took place. That the trial judge misconstrued that and other evidence is not the only problem. The fact is that he relied upon the inadmissible conversation between Corporal Oldford and the appellant which he termed crucial, to reach his conclusion of guilt. In doing so he erred. We permit leave to appeal, allow the appeal, set aside the conviction and order a new trial. J.A. Concurred in: Clarke, C.J.N.S. Freeman, J.A. PROVINCE OF NOVA SCOTIA 1991 S.C.C. 02551 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE PROVINCIAL COURT HER MAJESTY THE QUEEN ‑versus- KEVIN JOSEPH DOUCET HEARD BEFORE: His Honour Judge John R. Nichols, J.P.C. PLACE HEARD: Little Brook, Nova Scotia DATES HEARD: January 22, March 26 and June 26, 1991 COUNSEL: V. Blaine Allaby, Esq., Q.C., for the Prosecution Richard W. P. Murphy, Esq., for the Defence R. Alain Deveau, Esq., Q.C., for the Co‑accused CASE ON APPEAL S.C.C. No. 02551 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: KEVIN JOSEPH DOUCET and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MATTHEWS, J.A.
Where on a charge of break, enter and theft, the trial judge agreed with the Crown that a conversation between a police officer and the appellant was inadmissible, but then effectively allowed the evidence by permitting the testimony of the police officer, and no voir dire had been held to determine if the conversation was admissible. The appeal against conviction was allowed and a new trial ordered.