R. v. Farrell (P.), (2002) 249 N.B.R.(2d) 208 (TD)

• Judge: Robichaud, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 08, 2002
• Jurisdiction: New Brunswick
• Citations: (2002), 249 N.B.R.(2d) 208 (TD);2002 NBQB 150

R. v. Farrell (P.) (2002), 249 N.B.R.(2d) 208 (TD);

    249 R.N.-B.(2e) 208; 648 A.P.R. 208

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[French language version follows English language version]

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

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Temp. Cite: [2002] N.B.R.(2d) TBEd. MY.012

Her Majesty The Queen v. Patrick Farrell

(MI003601; 2002 NBQB 150)

Indexed As: R. v. Farrell (P.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Robichaud, J.

April 8, 2002.

Summary:

The accused sold counterfeit Nike, Tommy Hilfiger, FUBU and Oakley goods at a flea market. The accused received the fake goods for sale by consignment from a dis­tributor he previously dealt with. The accused was charged with four counts of knowingly offering for sale goods infringing subsisting copyright (Copyright Act, s. 42(1)(a)) and four counts of passing off with intent to deceive or defraud (Criminal Code, s. 412(1)(a)). The accused submitted that he neither knew nor ought to have known (wilful blindness) that the goods provided to him for sale were counterfeit.

The New Brunswick Court of Queen's Bench, Trial Division, found the accused not guilty on all counts. The court was satisfied that the accused did not know the goods were counterfeit and had no intent to defraud or deceive flea market customers. Given the circumstances of the case, the court was also not satisfied that the accused was wilfully blind.

Copyright - Topic 6205

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

Copyright - Topic 6208

Offences - General - Selling infringing works - The accused sold counterfeit brand name goods at a flea market - The accused received the goods for sale by consignment from a reliable distributor he previously had dealt with - The accused, who alleged that he had no reason to question the au­thentic­ity of the goods, was charged with knowingly offering for sale goods infring­ing subsist­ing copyright (Copyright Act, s. 42(1)(a)) and passing off (Criminal Code, s. 412(1)(a)) - The accused sub­mitted that he neither knew nor ought to have known (wilful blindness) that the goods provided to him for sale were counterfeit - The New Brunswick Court of Queen's Bench, Trial Division, found the accused not guilty on all counts - The Copyright Act offences were not strict liability - The court was satisfied that the accused did not know the goods were counterfeit, had no knowledge of two of the four brand names, had never handled any of the brand names goods to know the goods he was selling were fake, and had no intent to defraud or deceive - The Crown also failed to prove that the accused was wilfully blind - See para­graphs 53 to 75.

Criminal Law - Topic 2150

Fraudulent transactions - Particular of­fences - Passing off wares or services - [See Copyright - Topic 6208 ].

Cases Noticed:

R. v. Photo Centre Inc. (1986), 9 C.P.R.(3d) 425 (Que. S.C.), dist. [para. 57].

R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 58].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 58].

R. v. Biron (D.) (1992), 127 N.B.R.(2d) 142; 319 A.P.R. 142 (Prov. Ct.), refd to. [para. 61].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218 (S.C.C.), refd to. [para. 72].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 73].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 42(1)(b), sect. 42(1)(g) [para. 53].

Criminal Code, R.S.C. 1985, c. C-46, sect. 408(b)(i), sect. 412(1)(a) [para. 55].

Counsel:

Jean A. Cormier, for the Crown;

Robert L. Rideout, for the accused.

This case was heard on March 26-27, 2002, before Robichaud, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following oral judgment on April 8, 2002.