R. v. Beck (C.), (2015) 370 Nfld. & P.E.I.R. 41 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 14, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 370 Nfld. & P.E.I.R. 41 (NLPC)

R. v. Beck (C.) (2015), 370 Nfld. & P.E.I.R. 41 (NLPC);

    1153 A.P.R. 41

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AU.017

Her Majesty the Queen v. Cecil Beck

(Docket: 0814A00250; 0815A00011)

Indexed As: R. v. Beck (C.)

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

August 6, 2015.

Summary:

The accused was charged with theft of a shovel, uttering threats and mischief.

The Newfoundland and Labrador Provincial Court acquitted the accused.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - [See Criminal Law - Topic 2254 ].

Criminal Law - Topic 1646

Offences against property - Theft - Elements - Ownership of property taken - The accused was charged with theft of a shovel - The accused asserted that the shovel was his - The accused's wife testified that she had loaned the shovel to the complainant while the accused was at work - The Newfoundland and Labrador Provincial Court acquitted the accused, stating, "Clearly, ownership of the item(s) allegedly stolen is an essential element of the offence. However, on the evidence heard, ownership of the tools which the accused took from the fence construction scene on August 1, 2014 is unclear. It is an error of law to simply prefer one version of fact over the other. There is no reason not to believe the accused. Following the three stage test in R. v. D.W., if the accused is believed, or if his evidence raises a reasonable doubt, then he must be acquitted. Since ownership of these tools has not been proven to the extent of proof beyond reasonable doubt, the offence of theft is not made out, and must be dismissed." - See paragraphs 24 to 29.

Criminal Law - Topic 1658

Offences against property - Theft - Evidence and proof - [See Criminal Law - Topic 1646 ].

Criminal Law - Topic 2254

Wilful acts respecting property - Mischief - Defences - Justification or colour of right - The accused and the complainant were neighbours who disputed the boundaries of their property - The complainant started to erect a fence - The accused took down the fence posts - He was charged with mischief - The Newfoundland and Labrador Provincial Court acquitted the accused, stating, "The owner of property (including a person who, on reasonable grounds, believes he owns the property) has a right in law to use reasonable force to eject trespassers, and to prevent trespassers from entering on his property. The accused relies on a survey which he maintains gives him title to the property. The complainant claims to have a different survey. Absent evidence on the issue, the title to the property is unproven. The onus of proof as to guilt in a criminal case is always on the Crown, and never shifts to the accused. Section 429(2) [of the Criminal Code] makes colour of right a defence for the offence of mischief. ... Section 429(2) does not place a burden of proof upon the accused but rather it is for the Crown to establish the absence of legal justification or excuse and colour of right" - The Crown had not met that onus - The only verdict available was acquittal - See paragraphs 32 to 39.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 25].

R. v. Wilson (B.S.) (2013), 412 N.B.R.(2d) 100; 1070 A.P.R. 100; 2013 NBCA 38, refd to. [para. 30].

R. v. Watson (P.F.) (1999), 176 Nfld. & P.E.I.R. 263; 540 A.P.R. 263 (Nlfd. C.A.), refd to. [para. 38].

R. v. Creaghan (1982), 1 C.C.C.(3d) 449 (Ont. C.A.), refd to. [para. 38].

Counsel:

A. Manning, for the Crown;

E. O'Gorman, for the accused.

This case was heard at Grand Bank, N.L., on July 14, 2015, by Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on August 6, 2015.