R. v. Bourque, (1991) 106 N.S.R.(2d) 1 (CA)

• Judge: Matthews, Chipman and Freeman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 20, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 106 N.S.R.(2d) 1 (CA)

R. v. Bourque (1991), 106 N.S.R.(2d) 1 (CA);

  288 A.P.R. 1

MLB headnote and full text

Philip L. Bourque (appellant) v. Her Majesty The Queen (respondent)

(S.C.C. No. 02436)

Indexed As: R. v. Bourque

Nova Scotia Supreme Court

Appeal Division

Matthews, Chipman and Freeman, JJ.A.

August 20, 1991.

Summary:

The accused was charged with a fishing offence contrary to the Fisheries Act and the Atlantic Fishery Regulations. The accused applied to dismiss the charge on the ground that the Crown failed to give reasonable notice of its intention to pro­duce certain documents, as required by s. 28 of the Canada Evidence Act.

The Nova Scotia Provincial Court, in a judgment not reported in this series of reports, allowed the application and dis­missed the charge. The Crown appealed.

The Nova Scotia County Court, in a judg­ment not reported in this series of reports, allowed the appeal and remitted the matter for completion of trial. The accused appealed.

The Nova Scotia Supreme Court, Appeal Division, Freeman, J.A., dissenting, dis­missed the appeal.

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - Section 28(1) of the Canada Evidence Act provided that rea­sonable notice must be given of an in­ten­tion to produce a copy of any docu­ment in evidence - Section 28(2) pro­vided that a minimum of seven days' notice must be given - The accused did not object to admission until after the Crown closed its case and the documents were introduced and subjected to ex­amination and cross-examination - The Nova Scotia Court of Appeal stated that "by not objecting to the introduction of the documents into evi­dence when they were placed into evi­dence, on the facts of this case defence counsel tacitly con­sented to their admis­sion" - See para­graphs 18 to 23.

Evidence - Topic 3246

Documentary evidence - Admission under Evidence Acts - Notice require­ments - [See Evidence - Topic 507 ].

Evidence - Topic 3246

Documentary evidence - Admission under Evidence Acts - Notice requirements - Section 28(1) of the Canada Evidence Act provided that no copy of any document was admissible in evidence unless reason­able notice was given of the intention to produce the document - Section 28(2) provided that at least seven days' notice was required - The Nova Scotia Court of Appeal stated that compliance with s. 28 should be determined before admitting the documents in evidence - Otherwise, docu­ments could be admitted and used, and if it were then determined that reasonable notice was not given, all the evidence would have to be struck from the record, which would be a difficult task, especially in a jury trial - See paragraph 18.

Evidence - Topic 3246

Documentary evidence - Admission under Evidence Acts - Notice requirements - On April 6, the accused was given notice of inten­tion to produce documentary evidence - The trial was April 17 - Section 28(2) of the Canada Evidence Act required that at least seven days' notice be given - Section 27(1) of the Interpretation Act excluded the 6th and 17th from the calcu­lation - The Nova Scotia Court of Appeal stated that at least seven days' notice was given - The court stated that for the pur­poses of s. 28 you did not exclude from the seven day period Saturdays, Sundays and holi­days - See paragraphs 47 to 53.

Time - Topic 2501

Days - General - On April 6, the accused was given notice of intention to produce documentary evidence - The trial was April 17 - Section 28(2) of the Canada Evidence Act required that at least seven days' notice be given - Section 27(1) of the Interpretation Act excluded the 6th and 17th from the calculation - The Nova Scotia Court of Appeal stated that at least seven days' notice was given - The court stated that for the purposes of s. 28 you did not exclude from the seven day period Saturdays, Sundays and holi­days - See paragraphs 47 to 53.

Cases Noticed:

R. v. Luckhart (1975), 10 N.S.R.(2d) 619; 2 A.P.R. 619 (C.A.), refd to. [para. 13].

R. v. Meisner (1981), 46 N.S.R.(2d) 456; 89 A.P.R. 456 (C.A.), refd to. [para. 17].

R. v. Drew (1991), 104 N.S.R.(2d) 115; 283 A.P.R. 115 (C.A.), refd to. [para. 20].

R. v. Bowles (1974), 16 C.C.C.(2d) 425 (Ont. C.A.), refd to. [para. 25].

R. v. Marcil (1976), 31 C.C.C.(2d) 172 (Sask. C.A.), refd to. [para. 25].

R. v. Morgan (1983), 51 A.R. 201; 29 Alta. L.R.(2d) 183 (Q.B.), refd to. [para. 25].

R. v. Champagne, [1970] 2 C.C.C. 273 (B.C.C.A.), refd to. [para. 27].

R. v. Martel (1980), 23 A.R. 361 (N.W.T.S.C.), refd to. [para. 28].

R. v. M. (1975), 25 C.C.C.(2d) 507 (Man. Q.B.), refd to. [para. 29]

R. v. Oakley (1980), 31 A.R. 579; 6 M.V.R. 158 (Q.B.), affd. 9 M.V.R. 218 (C.A.), refd to. [para. 29].

R. v. Tunke (1975), 25 C.C.C.(2d) 518 (Alta. S.C.), refd to. [para. 30].

R. v. Osborne (1984), 46 Nfld. & P.E.I.R. 356; 135 A.P.R. 356 (P.E.I.S.C.), refd to. [para. 30].

R. v. Good, Schmidt and Winnipeg (1983), 6 C.C.C.(3d) 105, refd to. [para. 43].

R. v. Kutynec (1990), 57 C.C.C.(3d) 507; 50 C.R.R. 311 (Ont. Dist. Ct.), refd to. [para. 63].

Stirland v. Director of Public Prosecutions, [1944] A.C. 315; [1944] 2 All E.R. 13 (H.L.), refd to. [para. 72].

R. v. Pettinicchi (1970), 2 C.C.C.(2d) 93 (Que. P.C.), refd to. [para. 72].

R. v. Schubert, [1977], 5 W.W.R. 292 (B.C.P.C.), refd to. [para. 72.].

R. v. Kinch (1961), 131 C.C.C. 342 (P.E.I.C.A.), refd to. [para. 81].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 24 [para. 72]; sect. 28 [paras. 5, 58].

Civil Procedure Rules (N.S.), rule 3.01(a) [para. 88]; rule 3.01(h) [para. 90]; rule 10.13 [para. 91].

Civil Service Act Regulations, sect. 47 [para. 75].

Criminal Code, R.S.C. 1985, c. C-46, sect. 20 [para. 50]; sect. 654 [para. 83].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 26, sect. 27(1) [paras. 48, 78]; sect. 35 [para. 79].

Judicature Act, R.S.N.S. 1989, c. 240, sect. 2 [para. 84].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [paras. 94, 95].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed.), para. 3:10410 [para. 68].

Random House Dictionary of the English Language [para. 97].

Webster's New International Dictionary (2nd Ed.) [para. 96].

Counsel:

S. Clifford Hood, Q.C., for the appellant;

Michael A. Paré, for the respondent.

This appeal was heard on June 13, 1991, before Matthews, Chipman and Freeman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On August 20, 1991, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Matthews, J.A. (Chipman, J.A., concur­ring) - see paragraphs 1 to 53.

Freeman, J.A., dissenting - see para­graphs 54 to 112.