R. v. Phinney (L.B.), (1998) 173 N.S.R.(2d) 312 (SC)

• Judge: Scanlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 10, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 173 N.S.R.(2d) 312 (SC)

R. v. Phinney (L.B.) (1998), 173 N.S.R.(2d) 312 (SC);

    527 A.P.R. 312

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JA.004

Her Majesty The Queen (appellant) v. Lewis Brian Phinney sometimes known as Brian Lewis Phinney (respondent)

(S.T. No. 07917)

Indexed As: R. v. Phinney (L.B.)

Nova Scotia Supreme Court

Scanlan, J.

December 10, 1998.

Summary:

The accused was acquitted of digging clams without a proper licence. The Crown appealed.

The Nova Scotia Supreme Court allowed the appeal and ordered a new trial.

Evidence - Topic 2231

Special modes of proof - Judicial notice - Particular matters - Statutes, statutory orders and regulations - The accused was charged with digging clams without a proper licence - The trial judge dismissed the charge on the ground that the Crown failed to prove the regulation that the accused was charged under - The regula­tion was published in the Canada Gazette -The Crown appealed - The Nova Scotia Supreme Court allowed the appeal and ordered a new trial - The court stated that if statutory instruments were not published in the Gazette they must be proven - However, where the regulation was pub­lished in the Gazette, there was no need for the Crown to prove the regulation - Therefore, the trial judge was required to take judicial notice of the regulation.

Cases Noticed:

R. v. Steam Tanker Evgenia Chandris, [1977] 2 S.C.R. 97; 8 N.R. 338; 12 N.B.R.(2d) 652; 10 A.P.R. 652, refd to. [para. 8].

R. v. Arenburg (1988), 87 N.S.R.(2d) 164; 222 A.P.R. 174 (Co. Ct.), refd to. [para. 8].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 21(a), sect. 21(b), sect. 21(e) [para. 3].

Statutory Instruments Act, R.S.C. 1985, c. S-22, sect. 2(1) [para. 4]; sect. 16 [para. 5].

Counsel:

Michael W. Stokoe (Burchell Mac­Dougall), for the appellant;

Respondent was not represented and did not appear.

This appeal was heard in Truro, Nova Scotia, on December 10, 1998, by Scanlan, J., of the Nova Scotia Supreme Court, who delivered the following decision on Decem­ber 10, 1998.