R. v. Franks (B.), (1991) 4 B.C.A.C. 72 (CA)

• Judge: Carrothers, Wallace and Locke, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 20, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 4 B.C.A.C. 72 (CA)

R. v. Franks (B.) (1991), 4 B.C.A.C. 72 (CA);

    9 W.A.C. 72

MLB headnote and full text

Regina (appellant) v. Bert Franks (respondent)

(CA013006)

Indexed As: R. v. Franks (B.)

British Columbia Court of Appeal

Carrothers, Wallace and Locke, JJ.A.

August 19, 1991.

Summary:

Franks was convicted of the unlawful possession of dead wildlife. Franks appealed.

The British Columbia Supreme Court allowed the appeal and set aside the conviction on the ground that the prosecutor acted improperly when he failed to call a witness. The Crown appealed.

The British Columbia Court of Appeal allowed the appeal and reinstated the conviction.

Barristers and Solicitors - Topic 1806

The prosecutor - Duty to call witnesses - The British Columbia Court of Appeal stated that a prosecutor has a discretion to determine who should be called to testify for the Crown - The court added that it should not interfere with that discretion unless it be shown that the prosecutor has been influenced by some oblique or improper motive in the exercise of his discretion - See paragraph 13.

Barristers and Solicitors - Topic 1806

The prosecutor - Duty to call witnesses - A prosecutor decided not to call a witness who was not essential to the Crown's case - The witness was subpoenaed and in court and the defence knew of the witness and his testimony - The British Columbia Court of Appeal held that the prosecutor acted properly in the circumstances - The court stated that the prosecutor's discretion may be interfered with if an oblique or improper motive is shown which adversely affects the fairness of the trial - See paragraph 15.

Cases Noticed:

Lemay v. The King (1951), 102 C.C.C. 1 (S.C.C.), refd to. [para. 14].

R. v. Caccamo (1975), 4 N.R. 133; 21 C.C.C.(2d) 257 (S.C.C.), refd to. [para. 14].

Cunliffe, Re and Law Society of British Columbia (1984), 13 C.C.C.(3d) 560 (B.C.C.A.), refd to. [para. 14].

R. v. Yebes (1987), 78 N.R. 351; 36 C.C.C.(3d) 417 (S.C.C.), refd to. [para. 14].

R. v. M.H.C. (1991), 123 N.R. 63; 63 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 14].

Boucher v. The Queen (1954), 110 C.C.C. 263, refd to. [para. 14].

R. v. Antley, [1964] 2 C.C.C. 142 (Ont. C.A.), refd to. [para. 14].

Statutes Noticed:

Wildlife Act, S.B.C. 1982, c. 57, sect. 34(2) [para. 29]; sect. 88(3) [para. 30]; sect. 109(1) [para. 28].

Counsel:

A. Budlovsky, for the Crown appellant;

   W.J. Heflin, for the respondent.

This appeal was heard by Carrothers, Wallace and Locke, JJ.A., of the British Columbia Court of Appeal at Vancouver, B.C., on June 20, 1991. The decision of the court was delivered by Wallace, J.A., on August 19, 1991.