ARCTIC OBITER
March/April 2013 - Law Society of the Northwest Territories March/April 2013 - Law Society of the Northwest Territories
In order to authenticate the recording, the Crown must prove the file on the DVD is a digital encoding of an unaltered and accurate audio recording of the telephone conversation. To authenticate the recording, there must be a ‘prima facie’ case for authentication. The judge has the role of ‘gate-keeper’ and can only allow evidence which is properly authenticated to go before the trier of fact. In this case, there was not sufficient evidence that the recording was authentic. That evidence could have come from one of two sources: the witness could have confirmed that the recording accurately depicted the conversation she had with the accused; or a person from North Slave Correctional Centre could have described the process that links the telephone conversation to the recording. The burden of establishing authenticity rests on the Crown. There is no presumption the recording has not been altered or that it fairly represents the conversation. The burden does not change because the Crown is seeking to have the recording admitted during a preliminary inquiry as opposed to a trial. FAMILY LAW – MAINTENANCE ENFORCEMENT Kangegana v Gruben 2013 NWTTC 05 (March 20, 2013) Presiding: Judge B.E. Schmaltz for the Creditor/Designated Authority: T. Ralph For the Debtor: self-represented The debtor and garnishee sought a stay of garnishment, indicating maintenance payments had been made and the debtor’s obligations had been met. The debtor said he met his child support obligations by payments directly to the child or allowing the child to use his grocery account. Application for a stay dismissed – Monies or benefits given directly to the child cannot satisfy child support obligations. The parent who is entitled to child support is to have the discretion of how that money is spent for the benefit of the child. The debtor did not make child support payments to GNWT for the benefit of the creditor, who had the financial responsibility for the child, as he was by law required to do. ~ CRIMINAL LAW – CREDIBILITY R v Huntus 2013 NWTTC 06 (April 3, 2013) Presiding: Judge B.E. Schmaltz For the Crown: C. Bastedo, K. Onyskevitch For the Accused: C. Wawzonek Accused convicted of assault ~ FOR MORE INFRMATION AND REGISTRATION DETAILS, VISIT: www.cba.org/cba/sections_neerls/ 28 ■ MARCH/APRIL 2013 ARCTIC OBITER
causing bodily harm. The accused testified that the complainant sustained her injuries while attacking him, and that he did not touch her. The complainant testified he assaulted her. His evidence was fantastic, far fetched, and preposterous. His evidence could not raise a reasonable doubt. The complainant was believed. There was no justification. This was not done in self-defence, nor was it a consensual fight. ~ CRIMINAL LAW – SENTENCING – DISCHARGES – CONSIDERATION OF ABORIGINAL HERITAGE R v Bourke 2013 NWTTC 07 (April 3, 2013) Presiding: Chief Judge R.D. Gorin For the Crown: J. Wynne-Edwards For the Defence: M. Hansen The 32-year-old Aboriginal offender pleaded guilty to assaulting a police officer and breach of an undertaking. The offender called the police to her home. When her husband was arrested she took offence. She was intoxicated. When the officer told her he would report the matter to social services, she punched him in the shoulder. The guilty plea is a sign of remorse and has saved the Crown the resources which would otherwise have been required to prosecute the case. The offender had no prior criminal record. The Crown sought a suspended sentence. The defence sought a conditional discharge. Conditional discharge granted – Section 718.2(e) does not apply directly as imprisonment is not being considered. However, casespecific factors having to do with the A bo rigi nal offender’s background can lessen the moral blameworthiness of the offender. A restorative approach would be one which does not leave the offender with a criminal record that could interfere with her rehabilitation and integration into society in the future. ~ CRIMINAL PROCEDURE - DISCLOSURE – MISTRIAL R v DD 2013 NWTTC 08 (April 12, 2013) Presiding: Judge G. Malakoe For the Crown: J. Bond For the Accused: C. Davison The accused sought a mistrial after conviction but prior to sentencing on a charge of sexual assault, after discovering the father of the complainant has been charged (but not convicted) with assaulting the complainant in the past. One of the charges against the father had been stayed, three had been withdrawn, and one ended with an acquittal after trial. The accused’s trial turned on an assessment of the credibility of the accused, the complainant, and her father. Absent a specific request by defence, there is no duty to disclose criminal charges against a witness which are finished and did not result in a finding of guilty. For this reason, there was no breach of the accused’s right to make full answer and defence. Application for a mistrial denied -- C ro s s- e xami n a tion o f t h e complainant and her father on the issue of the past charges could not reasonably be expected to have affected the result. ■ Maureen McGuire is an Appellate Counsel with Alberta Justice. She is a member of the Bar in the NWT, Ontario, and Alberta. Any comments or questions regarding case digests would be welcomed at her email address, Maureen.McGuire@gov.ab.ca. ARCTIC OBITER MARCH/APRIL 2013 ■ 29
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In order to authenticate the<br />
recording, the Crown must prove<br />
the file on the DVD is a digital<br />
encoding of an unaltered and<br />
accurate audio recording of the<br />
telephone conversation. To<br />
authenticate the recording, there<br />
must be a ‘prima facie’ case for<br />
authentication. The judge has the<br />
role of ‘gate-keeper’ and can only<br />
allow evidence which is properly<br />
authenticated to go before the trier<br />
of fact. In this case, there was not<br />
sufficient evidence that the<br />
recording was authentic. That<br />
evidence could have come from<br />
one of two sources: the witness<br />
could have confirmed that the<br />
recording accurately depicted the<br />
conversation she had with the<br />
accused; or a person from North<br />
Slave Correctional Centre could<br />
have described the process that<br />
links the telephone conversation to<br />
the recording. The burden of<br />
establishing authenticity rests on<br />
the Crown. There is no<br />
presumption the recording has not<br />
been altered or that it fairly<br />
represents the conversation. The<br />
burden does not change because<br />
the Crown is seeking to have the<br />
recording admitted during a<br />
preliminary inquiry as opposed to<br />
a trial.<br />
FAMILY LAW – MAINTENANCE<br />
ENFORCEMENT<br />
Kangegana v Gruben<br />
2013 NWTTC 05 (March 20, 2013)<br />
Presiding: Judge B.E. Schmaltz<br />
for the Creditor/Designated Authority: T. Ralph<br />
For the Debtor: self-represented<br />
The debtor and garnishee sought a<br />
stay of garnishment, indicating<br />
maintenance payments had been<br />
made and the debtor’s obligations<br />
had been met. The debtor said he<br />
met his child support obligations<br />
by payments directly to the child<br />
or allowing the child to use his<br />
grocery account.<br />
Application for a stay dismissed –<br />
Monies or benefits given directly<br />
to the child cannot satisfy child<br />
support obligations. The parent<br />
who is entitled to child support is<br />
to have the discretion of how that<br />
money is spent for the benefit of<br />
the child. The debtor did not make<br />
child support payments to GNWT<br />
for the benefit of the creditor, who<br />
had the financial responsibility for<br />
the child, as he was by law<br />
required to do.<br />
~<br />
CRIMINAL LAW – CREDIBILITY<br />
R v Huntus<br />
2013 NWTTC 06 (April 3, 2013)<br />
Presiding: Judge B.E. Schmaltz<br />
For the Crown: C. Bastedo, K. Onyskevitch<br />
For the Accused: C. Wawzonek<br />
Accused convicted of assault<br />
~<br />
FOR MORE INFRMATION AND REGISTRATION DETAILS, VISIT:<br />
www.cba.org/cba/sections_neerls/<br />
28 ■ MARCH/APRIL 2013 <strong>ARCTIC</strong> <strong>OBITER</strong>
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