R. v. Francis (R.), (1993) 135 N.B.R.(2d) 225 (CA)

• Judge: Rice, Ayles and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 11, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 135 N.B.R.(2d) 225 (CA)

R. v. Francis (R.) (1993), 135 N.B.R.(2d) 225 (CA);

    135 R.N.-B.(2e) 225; 344 A.P.R. 225

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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Romeo Francis (appellant) v. Her Majesty The Queen (respondent)

(45/93/CA)

Indexed As: R. v. Francis (R.)

New Brunswick Court of Appeal

Rice, Ayles and Ryan, JJ.A.

May 14, 1993.

Summary:

The accused was charged with unlawfully hunting wildlife at night. The Provincial Court judge held that the Crown did not prove beyond a reasonable doubt that the accused was hunting and acquitted the ac­cused. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 131 N.B.R.(2d) 361; 333 A.P.R. 361, al­lowed the appeal, set aside the acquittal and remitted the matter to the trial judge to determine treaty and aboriginal rights issues raised at trial. The accused appealed.

The New Brunswick Court of Appeal allowed the appeal, set aside the decision of the Trial Division and restored the acquittal.

Criminal Law - Topic 5215

Evidence and witnesses - Burden of proof - General - The accused was acquitted of hunting at night - The summary convic­tion appeal court set aside the acquittal and ordered a continuance of the trial - The New Brunswick Court of Appeal set aside the decision of the summary conviction appeal court and restored the acquittal where the appeal court erred in imposing a burden on the accused to show an in­nocent purpose and in substituting its assessment of the evidence for that of the trial judge.

Criminal Law - Topic 7464

Summary conviction proceedings - Ap­peals - Powers on appeal - [See Criminal Law - Topic 5215 ].

Fish and Game - Topic 2392

Hunting offences - Hunting at night - What constitutes hunting - During a stake-out at night, game wardens heard a moose call and observed a flash of light - The wardens pursued vehicles fleeing the area and eventually arrested the accused - Lights and a cardboard horn were found in the area - The accused was charged with unlawfully hunting wildlife at night - The trial judge held that the Crown did not prove beyond a reasonable doubt that the accused was hunting and acquitted the accused - The New Brunswick Court of Queen's Bench, Trial Division, allowed the Crown's appeal, holding that the Crown proved the actus reus and the accused did not rebut the presumption that he was hunting - The New Brunswick Court of Appeal restored the acquittal.

Cases Noticed:

R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 7].

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. 7].

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

R. v. Collicott (1990), 105 N.B.R.(2d) 355; 264 A.P.R. 355 (C.A.), refd to. [para. 8].

R. v. Schriver (1983), 49 N.B.R.(2d) 364; 129 A.P.R. 364 (C.A.), refd to. [para. 9].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 813 [para. 2].

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 33(1)(a) [para. 1].

Counsel:

Donald J. Stevenson, for the appellant;

John J. Walsh, for the respondent.

This appeal was heard on May 11, 1993, before Rice, Ayles and Ryan, JJ.A., of the New Brunswick Court of Appeal. The fol­lowing decision was delivered by the court on May 14, 1993.