R. v. Ogilvie, (1971) 3 N.B.R.(2d) 687 (CA)

• Judge: Limerick, Hughes and Bugold, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 15, 1971
• Jurisdiction: New Brunswick
• Citations: (1971), 3 N.B.R.(2d) 687 (CA)

R. v. Ogilvie (1971), 3 N.B.R.(2d) 687 (CA);

    3 R.N.-B.(2e) 687

MLB headnote and full text

Sommaire et texte intégral

R. v. Ogilvie

Indexed As: R. v. Ogilvie

Répertorié: R. v. Ogilvie

New Brunswick Court of Appeal

Limerick, Hughes and Bugold, JJ.A.

June 8, 1971.

Summary:

Résumé:

The New Brunswick Court of Appeal dismissed the appeal and affirmed the conviction of the accused before a County Court Judge without a jury of having possession of marihuana for the purposes of trafficking.

The New Brunswick Court of Appeal affirmed the trial Judge's finding of possession where the accused being the sole occupant of a car, stopped the car 100 yards from a road block and a police officer observed the passenger door of the car open and saw a brown paper parcel thrown out of the car. The police officer found a large paper parcel containing over 7 lbs. of marihuana in the ditch near the passenger side of the motor vehicle operated by the accused.

The New Brunswick Court of Appeal stated that section 451(b) of the Criminal Code of Canada with respect to adjournment for more than 8 days, does not apply where the accused is tried under authority of an indictment.

The New Brunswick Court of Appeal affirmed the trial Court's finding that it is not necessary for Crown counsel to carry or produce written authority to act on behalf of the Attorney-General and stated that there is a presumption of proper appointment which can only be set aside by evidence led by the defence to the contrary.

Criminal Law - Topic 2850

Jurisdiction - Consent jurisdiction, elections and re-elections - Re-election by accused, general - Prosecution - Authority of counsel to act for Attorney-General - Criminal Code of Canada, section 489 - The New Brunswick Court of Appeal held it is not necessary for Crown counsel to carry or produce written authority to act and that there is a presumption of proper appointment by the Attorney-General which can only be set aside by evidence to the contrary.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - Notice to accused under section 475 of the Criminal Code of Canada of hearing on re-election - The New Brunswick Court of Appeal held that the absence of a formal notice under section 475 does not affect the validity of the proceedings where accused appeared at the hearing and re- elects.

Cases Noticed:

R. v. Budovitch (1969), 1 N.B.R.(2d) 163, folld.

Statutes Noticed:

Criminal Code of Canada, S.C. 1953-54, c. 51, sect. 451(b), sect. 475(2), sect. 489.

Counsel:

Allen M. Ruben, for the accused, appellant;

J. Brian Malone, and C. Blake Lynch, for the Crown, respondent.

APPEAL from an unreported judgment of Creaghan, Co. Ct. J., dated March 15, 1971 convicting the accused of having possession of a narcotic contrary to lsection 3 of the Narcotic Control Act.

The judgment of the Court was delivered by Limerick, J.A.: