R. v. Mercer (L.R.), (1988) 91 N.B.R.(2d) 341 (TD)

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 02, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 91 N.B.R.(2d) 341 (TD)

R. v. Mercer (L.R.) (1988), 91 N.B.R.(2d) 341 (TD);

    91 R.N.-B.(2e) 341; 232 A.P.R. 341

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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Larry Raymond Mercer (appellant) v. Her Majesty the Queen (respondent)

(W/CM/32/88)

Indexed As: R. v. Mercer (L.R.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

McLellan, J.

August 5, 1988.

Summary:

Mercer, a motel proprietor, was convicted in Provincial Court of exposing an obscene videotape to public view, contrary to s. 159(2)(a) of the Criminal Code. See 88 N.B.R.(2d) 140; 224 A.P.R. 140.

The Provincial Court found that the first of the three movies on the videotape was not obscene. The other two movies were obscene. However, the officer seized the tape during the playing of the first movie. Mercer appealed his conviction and sentence.

The New Brunswick Court of Queen's Bench, Trial Division, quashed the conviction; but found Mercer guilty of the included offence of possession of an obscene videotape for the purpose of exposing it to public view. The court affirmed the sentence.

Criminal Law - Topic 580

Public morals - Obscenity - Publication of obscene material - The New Brunswick Court of Queen's Bench, Trial Division, affirmed that videotaped movies played to motel guests were exposed to the public within the meaning of s. 159(2)(a) of the Criminal Code.

Criminal Law - Topic 7464

Summary conviction proceedings - Appeals - General - Powers on appeal - Power to substitute a verdict - The first of three movies on a videotape was not obscene - The other two movies were obscene - However, the police officer seized the videotape during the playing of the first movie - The accused appealed his conviction of showing an obscene videotape to the public - The New Brunswick Court of Queen's Bench, Trial Division, stated that where the complete commission of the offence charged had not been proved, the appeal court had the power to substitute the verdict that should have been found at trial - The court quashed the conviction; but convicted the accused of the included offence of possession of a videotape for the purpose of exposing it to public view - The court affirmed the sentence.

Cases Noticed:

Hodge's Case (1838), 168 E.R. 1136, refd to. [para. 10].

R. v. Prosser (1959), 127 C.C.C. 111, refd to. [para. 15].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 159(2)(a) [paras. 1, 13, 14]; sect. 165(b) [paras. 13, 14]; sect. 587, sect. 589(1) [paras. 5, 16]; sect. 613(3), sect. 755(1) [para. 17].

Counsel:

Robert D. MacElwain, for the appellant;

Jeffrey L. Mockler, for the respondent.

This appeal was heard on August 2, 1988, before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following judgment on August 5, 1988.