R. v. Nickerson (W.S.), (1999) 178 N.S.R.(2d) 189 (CA)

• Judge: Pugsley, Flinn and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 21, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 178 N.S.R.(2d) 189 (CA);1999 CanLII 2014 (NS CA);1999 NSCA 168;[1999] CarswellNS 203;[1999] NSJ No 210 (QL);178 NSR (2d) 189

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189 (CA);

    549 A.P.R. 189

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JL.018

Her Majesty The Queen (appellant) v. Warren Samuel Nickerson (respondent)

(C.A.C. 152969)

Indexed As: R. v. Nickerson (W.S.)

Nova Scotia Court of Appeal

Pugsley, Flinn and Cromwell, JJ.A.

June 9, 1999.

Summary:

The accused was convicted by a Provincial Court judge of fishing during a closed time. The accused appealed his conviction.

The Summary Conviction Appeal Court allowed the appeal, acquitting the accused because of an officially induced error of law. The Crown appealed.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal and restored the conviction.

Fish and Game - Topic 2105

Fishing offences - Defences - Officially induced error - The accused was convicted by a Provincial Court judge of fishing during a closed time - The Summary Con­viction Appeal Court allowed the accused's appeal and acquitted the accused because of an officially induced error of law - The accused made an error of law in thinking that the fishery was open when it was closed, which was officially induced by the accused reasonably relying on a dockside monitoring company's advice - The Nova Scotia Court of Appeal allowed the Crown's appeal and restored the conviction - The trial judge erred at law by substitut­ing his view for that of a trial judge con­cerning the credibility and cogency of the evidence.

Trials - Topic 1196

Summary convictions - Appeals - Function or powers of summary conviction appeal court - The accused was convicted by a Provin­cial Court judge of fishing during a closed time - The accused appealed his conviction - The Summary Conviction Appeal Court allowed the appeal and acquitted the accused because of an offi­cially induced error of law, being that the accused reason­ably relied on a dockside monitoring com­pany's advice - The Nova Scotia Court of Appeal allowed the Crown's appeal and restored the conviction - The Summary Conviction Appeal Court's scope of review of the trial court's findings of fact was the same as on appeal against conviction to the Court of Appeal in in­dictable offences - The appropriate test being whether the findings of the trial judge were unreason­able or could not be supported by the evidence - See paragraphs 1 to 6.

Cases Noticed:

R. v. Miller (G.C.) (1999), 173 N.S.R.(2d) 26; 527 A.P.R. 26 (C.A.), refd to. [para. 5].

R. v. Gillis (1981), 45 N.S.R.(2d) 137; 86 A.P.R. 137; 60 C.C.C.(2d) 169 (C.A.), refd to. [para. 6].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 6].

R. v. Morash (1994), 129 N.S.R.(2d) 34; 362 A.P.R. 34 (C.A.), refd to. [para. 18].

Counsel:

Gordon S. Campbell, for the appellant;

S. Clifford Hood, Q.C., for the respondent.

This appeal was heard on May 21, 1999, by Pugsley, Flinn and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. Cromwell, J.A., delivered the following decision for the court on June 9, 1999.