R. v. Boudreau, (1987) 81 N.S.R.(2d) 359 (CA)

• Judge: Clarke, C.J.N.S., Hart and Chipman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 02, 1987
• Jurisdiction: Nova Scotia
• Citations: (1987), 81 N.S.R.(2d) 359 (CA)

R. v. Boudreau (1987), 81 N.S.R.(2d) 359 (CA);

    203 A.P.R. 359

MLB headnote and full text

R. v. Boudreau

(S.C.C. 01622)

Indexed As: R. v. Boudreau

Nova Scotia Supreme Court

Appeal Division

Clarke, C.J.N.S., Hart and Chipman, JJ.A.

December 2, 1987.

Summary:

The accused was charged with unlawfully fishing without licence. He was acquitted. The Crown's appeal was dismissed by the Nova Scotia County Court in a judgment unreported in this series of reports. The Crown appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal and remitted the matter to the trial judge.

Civil Rights - Topic 4945

Presumption of innocence - Evidence - Reverse onus provisions - The accused was charged with fishing without a licence - The Criminal Code, s. 730 (2), placed the burden on the accused of proving that he had a licence - The Nova Scotia Court of Appeal held that s. 730(2) did not violate the presumption of innocence of the accused - See paragraph 4.

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - The accused was charged with fishing without a licence - The Criminal Code, s. 730 (2), placed the burden on the accused of proving that he had a licence - The Crown offered an inadmissible affidavit to prove that the accused was not licensed and the trial judge acquitted the accused - The summary conviction appeal court dismissed the Crown's appeal, ruling that because the Crown elected to call evidence, it assumed a burden that it failed to discharge - The Nova Scotia Court of Appeal allowed the Crown's appeal and held that the burden of proof on the accused could not be displaced by the Crown electing to adduce evidence.

Cases Noticed:

R. v. O'Brien, [1965] 3 C.C.C. 95, disapprvd. [para. 6].

R. v. Nat Bell Liquors Ltd., [1922] A.C. 128, not folld. [para. 7].

R. v. Singh (1981), 12 Man.R.(2d) 319; 63 C.C.C.(2d) 156, consd. [para. 7].

R. v. Lee's Poultry Limited (1985), 7 O.A.C. 100; 17 C.C.C.(3d) 539, consd. [para. 7].

R. v. Hundt (1971), 3 C.C.C.(2d) 279, consd. [para. 7].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d).

Criminal Code, R.S.C. 1970, c. C-34, sect. 730(2) [para. 4].

Counsel:

Douglas L. Richard, for the appellant;

Respondent not present or represented.

This case was heard on December 2, 1987, at Halifax, Nova Scotia, before Clarke, C.J.N.S., Hart and Chipman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On December 2, 1987, Chipman, J.A., orally delivered the following judgment for the Appeal Division: