R. v. Sturge, (1987) 82 N.B.R.(2d) 1 (TD)

• Judge: Jones, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 27, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 82 N.B.R.(2d) 1 (TD)

R. v. Sturge (1987), 82 N.B.R.(2d) 1 (TD);

    82 R.N.-B.(2e) 1; 208 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Her Majesty the Queen v. James Ross Sturge

(F/CR/4/87)

Indexed As: R. v. Sturge

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Jones, J.

September 23, 1987.

Summary:

The accused was charged with operating a motor vehicle while having an excessive blood-alcohol content contrary to s. 237(b) of the Criminal Code. The Crown entered into evidence the certificate of analysis containing the results of two breathalyzer tests. The accused challenged the constitutionality of s. 241(1)(c) of the Criminal Code on the ground that it was a reverse onus provision placing the onus on the accused to disprove a matter essential to his conviction thus offending the accused's rights under s. 11(d) of the Charter (right to be presumed innocent until proven guilty).

The trial judge, in a decision reported 80 N.B.R.(2d) 249; 202 A.P.R. 249, held that s. 241(1)(c) violated the accused's rights and dismissed the charge. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the appeal, set aside the acquittal and entered a conviction. The court held that the presumption in s. 241(1)(c) did not deprive the accused of the right to be presumed innocent until proven guilty according to law as guaranteed by s. 11(d) of the Charter.

Civil Rights - Topic 4909

Presumption of innocence - General principles - Circumstances not infringing presumption - Section 241 (1) (c) of the Criminal Code provided that "... evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol ..." - An accused challenged the presumption in s. 241(1)(c) on the ground that it was a reverse onus provision which placed the burden on the accused to disprove a matter essential to the offence, contrary to s. 11(d) of the Charter (the right to be presumed innocent until proven guilty) - The New Brunswick Court of Queen's Bench, Trial Division, held that the reverse onus provision in s. 241(1)(c) did not violate the accused's rights under s. 11(d) of the Charter - The court stated that the accused need only raise a reasonable doubt to defeat the presumption, and did not have to rebut the presumption beyond a reasonable doubt.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - [See Civil Rights - Topic 4909 above].

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321; 26 D.L.R.(4th) 200, consd. [para. 8].

R. v. Moreau, [1979] 1 S.C.R. 261; 23 N.R. 541; 42 C.C.C.(2d) 525; 89 D.L.R.(3d) 449, refd to. [para. 19].

R. v. Proudlock, [1979] 1 S.C.R. 525; [1978] 6 W.W.R. 357; 24 N.R. 199; 43 C.C.C.(2d) 321; 91 D.L.R.(3d) 449; 5 C.R.(3d) 21, refd to. [para. 23].

Boyle and The Queen, Re (1983), 41 O.R.(2d) 713; 5 C.C.C.(3d) 193; 35 C.R.(3d) 34; 148 D.L.R.(3d) 449, refd to. [para. 32].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [paras. 4, 6, 7, 9, 10, 13, 16, 17, 34, 38, 39].

Criminal Code, R.S.C. 1970, c. C-34, sect. 237(b) [para. 1]; sect. 241(1)(c) [paras. 4, 16, 17, 19, 21, 23, 39]; sect. 242(1)(a) [para. 41]; sect. 312(2) [para. 32].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 8 [paras. 8, 9, 10, 38, 39].

Counsel:

Glendon J. Abbott, for the appellant, Crown;

B. Richard Bell, for the respondent, accused.

This appeal was heard on April 27, 1987, before Jones, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on September 23, 1987: