R. v. Barkhouse, (1983) 58 N.S.R.(2d) 393 (ProvCt)

• Judge: MacDonald, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: April 05, 1983
• Jurisdiction: Nova Scotia
• Citations: (1983), 58 N.S.R.(2d) 393 (ProvCt)

R. v. Barkhouse (1983), 58 N.S.R.(2d) 393 (ProvCt);

    123 A.P.R. 393

MLB headnote and full text

R. v. Barkhouse

Indexed As: R. v. Barkhouse

Nova Scotia Provincial Court

MacDonald, P.C.J.

April 30, 1983.

Summary:

The accused was charged with assaulting a police officer in the execution of his duty contrary to s. 246(2)(e) of the Criminal Code of Canada. The Nova Scotia Provincial Court acquitted the accused on the assault charge, because the police officer was engaged in the illegal seizure of a motor vehicle and therefore not in the execution of his duty. The court also acquitted the accused of the included offence of common assault, because he acted in self-defence.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure, defined - The Nova Scotia Provincial Court held that seizure of a motor vehicle because of the driver's failure to possess a driver's licence or a motor vehicle permit is contrary to the right to be secure against unreasonable search and seizure as guaranteed in s. 8 of the Canadian Charter of Rights and Freedoms - See paragraphs 31 to 35.

Criminal Law - Topic 1413

Offences against person and reputation - Assaults - Common assault - What constitutes - A police officer struggled with a driver, attempting to illegally seize the driver's car - A passerby arrived, struck the officer and ran - The officer pursued the passerby and a fight resulted - The passerby was acquitted of assaulting a police officer in the execution of his duty (because the seizure was unlawful) - The Nova Scotia Provincial Court also acquitted the passerby of the included offence of common assault, because the defence of self-defence applied - See paragraphs 36 to 41.

Criminal Law - Topic 1414

Offences against person and reputation - Assaults - Assault of a police officer - A driver, suspected of driving without a licence, was released - He discourteously slammed the police car door - The officer then attempted to seize the driver's vehicle for failure to carry a motor vehicle permit - A struggle ensued, during which the officer was assaulted by the accused, who came to the driver's assistance - The Nova Scotia Provincial Court held that because the seizure was unreasonable as contrary to s. 8 of the Charter of Rights and Freedoms, the officer was not engaged in the execution of his duty and so acquitted the accused of assaulting the police officer - See paragraphs 21 to 35.

Criminal Law - Topic 1420

Offences against person and reputation - Assaults - Defences - Self-defence - An accused was acquitted of assaulting a police officer in the execution of his duty, because the officer was acting unlawfully and therefore not engaged in the course of his duty - The officer choked a driver while attempting to seize the driver's car, when the accused passerby arrived, struck the officer and ran - The officer pursued the accused and a fight resulted - The Nova Scotia Provincial Court held that the accused was entitled to the same protection as a rescuer, at common law, where the accused did not use excessive force - The court applied s. 37(1) of the Criminal Code regarding justifiable use of force to prevent an assault - See paragraphs 36 to 41.

Motor Vehicles - Topic 3281

Regulation of vehicles and traffic - Insurance - General - The Nova Scotia Provincial Court stated that there is no requirement in the Motor Vehicle Act that a driver must carry evidence of insurance (the pink card) on his person or in the vehicle while it is being driven - See paragraphs 28 to 29.

Motor Vehicles - Topic 3345

Regulation of vehicles and traffic - Vehicles - Seizure of - When authorized - The Nova Scotia Provincial Court referred to cases where seizure of a motor vehicle under the powers contained in s. 245(1) of the Motor Vehicle Act would be justified - See paragraph 33.

Motor Vehicles - Topic 3345

Regulation of vehicles and traffic - Vehicles - Seizure of - When authorized - The Nova Scotia Provincial Court held that seizure of a motor vehicle because of the driver's failure to possess a driver's licence or a motor vehicle permit while driving is contrary to the right to be secure against unreasonable search and seizure as guaranteed in s. 8 of the Canadian Charter of Rights and Freedoms - See paragraphs 31 to 35.

Cases Noticed:

R. v. Acker (1970), 1 N.S.R.(2d) 572, refd to. [para. 35].

R. v. Duffy (1966), 50 Cr. App. R. 68 (U.K.), refd to. [para. 38].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 31].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 7(3) [para. 39]; sect. 37(1) [para. 36].

Motor Vehicle Act, R.S.N.S. 1967, c. 191, sect. 14(1) [paras. 25, 30]; sect. 205(a) [paras. 25, 30]; sect. 245(1) [paras. 23, 34].

Authors and Works Noticed:

Crankshaw's Criminal Code of Canada (8th Ed.), p. 1-157 [para. 38].

Counsel:

Rod J. Chisholm, Q.C., for the Crown;

Malcolm Jeffcock, for the accused.

This charge was heard before MacDONALD, P.C.J., of the Nova Scotia Provincial Court, at Sheet Harbour, Nova Scotia, on April 5, 1983. The decision of MacDONALD, P.C.J., was delivered at Antigonish, Nova Scotia, on April 30, 1983.