R. v. Smith (D.H.), (2011) 382 Sask.R. 150 (QB)

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 01, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 382 Sask.R. 150 (QB);2011 SKQB 324

R. v. Smith (D.H.) (2011), 382 Sask.R. 150 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. SE.030

Douglas Hugh Smith (appellant) v. Her Majesty the Queen (respondent)

(2010 Q.B.G. No. 2315; 2011 SKQB 324)

Indexed As: R. v. Smith (D.H.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Dawson, J.

September 1, 2011.

Summary:

The accused was charged with contravening a regulation made under s. 117(h) of the Firearms Act respecting the storage of firearms and restricted weapons, contrary to s. 86(2) of the Criminal Code. After the Crown closed its case, the accused applied for a non-suit, arguing that the Crown had failed to prove the identity of the accused. The Crown was allowed to reopen its case and it called two witnesses with respect to the issue of the accused's identity. The accused appealed, arguing that the trial judge erred in permitting the Crown to re-open its case.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening trial to hear additional evidence - The accused, Douglas Hugh Smith, was charged with contravening a regulation made under s. 117(h) of the Firearms Act respecting the storage of firearms and restricted weapons - At the opening of the trial, defence counsel made two admissions of fact that were read into the record as follows: "that Doug Smith resided at Suite 106-115 Ross Street in Lumsden, Saskatchewan, on the date of the offence - And as well that his daughters would visit the apartment when - when the accused was present but none of them had a key to the apartment" - The Crown then called its evidence at the trial - The evidence indicated that a firearm was seized from 106-115 Ross Street, Lumsden, Saskatchewan - After the Crown closed its case, the accused applied for a non-suit, arguing that the Crown had failed to prove the identity of the accused - The defence took the position that the admissions did not prove the identity of the accused as the Crown was still required to call evidence to establish a connection between the Doug Smith referred to in the admissions and the accused sitting in the courtroom - The Crown was allowed to reopen its case and it called two witnesses with respect to the issue of the accused's identity - The Saskatchewan Court of Queen's Bench held that the trial judge did not err in dismissing the non-suit application and allowing the Crown to reopen its case and call the identity evidence - The confusion surrounding the effect of the admissions was what led the Crown to believe that identity had been proven - Reopening of the Crown's case did not prejudice the defence - The trial judge exercised her discretion judicially and in the interests of justice - The evidence called was appropriate.

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 17].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81; 148 D.L.R.(4th) 423, refd to. [para. 18].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, consd. [para. 20].

R. v. Kotchea, 2003 NWTSC 29, refd to. [para. 29].

R. v. Dill (T.T.) (2005), 375 A.R. 210; 2005 ABQB 49, refd to. [para. 30].

R. v. Robillard, [1978] 2 S.C.R. 728; 21 N.R. 557; 85 D.L.R.(3d) 449, refd to. [para. 31].

R. v. Falman, [1970] 2 C.C.C. 273; 70 W.W.R.(N.S.) 438 (B.C.C.A.), refd to. [para. 31].

Counsel:

Foster J. Weisgerber, for the appellant;

Erin L. Schroh, for the respondent.

This appeal was heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on September 1, 2011.