R. v. Rivers, (1986) 75 N.B.R.(2d) 378 (TD)

• Judge: Paul S. Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 15, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 75 N.B.R.(2d) 378 (TD)

R. v. Rivers (1986), 75 N.B.R.(2d) 378 (TD);

    75 R.N.-B.(2e) 378; 188 A.P.R. 378

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R. v. Rivers

(No. N/M/7/86)

Indexed As: R. v. Rivers

Répertorié: R. v. Rivers

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Newcastle

Paul S. Creaghan, J.

October 17, 1986.

Summary:

Résumé:

 Rivers saw what he believed was a deer, got out of a vehicle, put a rifle to his shoulder in a state of readiness, then got back into the vehicle. The deer was a decoy used by game wardens. Rivers was charged with unlawfully hunting at night, but was acquitted. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the appeal and entered a guilty verdict. The court held that the trial judge erred in finding that Rivers did not hunt within the meaning of the Fish and Wildlife Act.

Civil Rights - Topic 4945

Presumption of innocence - Evidence - Reverse onus provisions - An accused argued that s. 109 of the Fish and Wildlife Act, which provided that when a person carried a firearm at night in an area frequented by game, such evidence was prima facie proof that the person was hunting, violated the presumption of innocence in s. 11 of the Charter - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 109 did not give rise to a reverse onus and that it did not offend the Charter - See paragraph 14.

Fish and Game - Topic 1763

Offences - General - Defences - Entrapment - An accused saw what he believed was a deer - The accused put a rifle to his shoulder but did not fire - The deer was a decoy used by game wardens - Several guns and live ammunition were found in the vehicle in which the accused was a passenger - The accused was charged with unlawfully hunting at night - The New Brunswick Court of Queen's Bench, Trial Division, held that the accused was hunting and that entrapment was not a defence in the circumstances - Whatever the propriety of the game wardens in enticing the accused, it was clear that he had the wrongful intention with respect to the commission of the offence - See paragraph 9.

Fish and Game - Topic 2301

Hunting offences - General principles - Hunting - What constitutes - [See Fish and Game - Topic 1763 above.]

Cases Noticed:

R. v. Bonnar (1975), 30 C.C.C.(2d) 55, consd. [para. 8].

R. v. Monteith (1984), 55 N.B.R.(2d) 181; 144  A.P.R. 181, refd to. [para. 10].

R. v. Thorne and Marks (1986), 64 N.B.R.(2d) 29; 165 A.P.R. 29, folld. [para. 14].

R. v. Oakes (1983), 2 C.C.C.(3d) 339, appld. [para. 15].

Statutes Noticed:

Act Respecting Compliance of Acts of the Legislature with the Canadian Charter of Rights and Freedoms, S.N.B. 1983, c. 4, sect. 7(4) [para. 11].

Canadian Charter of Rights and Freedoms, sect. 11 [para. 13].

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 1(1) [para. 6]; sect. 33(1)(a) [para. 1]; sect. 109 [paras. 11, 13, 14].

Counsel:

Cynthia L. Howie, for the appellant;

Geri Mahoney, for the respondent.

This case was heard on October 15, 1986, before Paul S. Creaghan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Newcastle, who delivered the following judgment on October 17, 1986.