Joshua Matthew Christopher Tupper

In a second degree murder trial where the accused raised self-defence, the defence sought to introduce an exculpatory audio and video statement made to police shortly after arrest.

The Crown opposed admission on the basis that the statement was a prior consistent statement and not spontaneous.

Applying the principles in R. v. Edgar, the court held that spontaneous out-of-court statements by an accused made upon arrest may be admitted as evidence of reaction to an accusation and as circumstantial evidence relevant to credibility.

The court found the statement had significant probative value in demonstrating the accused’s emotional state, cooperation with police, and consistency with his anticipated testimony, and could rebut evidence of post-offence conduct suggesting guilt.

The post‑arrest statement was therefore admitted.

The accused was charged with operating a motor vehicle with excess blood alcohol.

The principal issue at trial was whether an admitted breach of the accused's Charter right to counsel should lead to exclusion of breath test results under section 24(2) of the Charter.

The breach occurred because the first duty counsel provided was difficult to understand, and the accused complained about this to officers.

A second duty counsel was provided between the two breath tests.

The court dismissed the application to exclude the evidence and found the accused guilty.

The court applied the three-part test from R. v. Grant, finding the state conduct was at the low end of the breach spectrum, the impact on Charter-protected interests was relatively minor, and society's interest in adjudication on the merits favored admission of the evidence.