R. v. Biron (D.), (1992) 127 N.B.R.(2d) 142 (PC)

• Judge: Brien, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: July 22, 1992
• Jurisdiction: New Brunswick
• Citations: (1992), 127 N.B.R.(2d) 142 (PC)

R. v. Biron (D.) (1992), 127 N.B.R.(2d) 142 (PC);

    127 R.N.-B.(2e) 142; 319 A.P.R. 142

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. David Biron

Indexed As: R. v. Biron (D.)

New Brunswick Provincial Court

Brien, P.C.J.

July 22, 1992.

Summary:

The accused was charged with selling a multi-game Nintendo cartridge contrary to the Copyright Act.

The New Provincial Court entered an acquittal.

Copyright - Topic 6205

Offences - Evidence - Doctrine of wilful blindness - [See second Copyright - Topic 6208 ].

Copyright - Topic 6208

Offences - Selling infringing works - Requisite intent - Section 42(1)(b) of the Copyright Act, made it an offence to knowingly, sell or rent an infringing copy of any work in which copyright subsists - The New Brunswick Provincial Court held that the offence created by this provision was one of full mens rea - See paragraphs 9 to 13.

Copyright - Topic 6208

Offences - Selling infringing works - Requisite intent - The accused purchased a multi-game video cartridge for Nintendo through a newspaper advertisement - After using it for over a month, he sold the cartridge by advertising in the newspaper - He also bought two other games because he could not buy them locally - The initial cartridge did not bear the "Nintendo" label, but had Oriental script - After placing his ad, the accused received a telephone call suggesting that the game was illegal - The New Brunswick Provincial Court acquitted the accused of selling an infringing cartridge (Copyright Act, s. 42(1)(b)) - The court held that the accused lacked the requisite knowledge that the cartridge was an infringing copy and he was not wilfully blind to its infringing nature.

Copyright - Topic 6224

Offences - Particular works - Video games - [See second Copyright - Topic 6208 ].

Cases Noticed:

R. v. Photo Center Inc. (1986), 9 C.P.R. (3d) 425 (Que. S.C.), refd to. [para. 9].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 11].

R. v. City of Sault Ste. Marie - see R. v. Sault Ste. Marie (City).

R. v. Harris (M.D.) (1990), 81 Nfld. & P.E.I.R. 147; 255 A.P.R. 147 (Nfld. Prov. Ct.), refd to. [para. 13].

R. v. Ghnaim and Midland Enterprises Ltd. (1989), 102 A.R. 345 (C.A.), refd to. [para. 13].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C. (3d) 223, refd to. [para. 20].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 42(1)(b) [para. 1].

Counsel:

Karen Colpitts, for the Crown;

Wilbur McLeod, for the accused.

This case was heard before Brien, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision on July 22, 1992.