R. v. Surette (J.R.W.), (1993) 123 N.S.R.(2d) 152 (CA)

• Judge: Clarke, C.J.N.S., Hart and Hallett, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 14, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 123 N.S.R.(2d) 152 (CA)

R. v. Surette (J.R.W.) (1993), 123 N.S.R.(2d) 152 (CA);

  340 A.P.R. 152

MLB headnote and full text

Her Majesty The Queen (appellant) v. Joseph Robert Wayne Surette (respondent)

(C.A.C. No. 02764)

Indexed As: R. v. Surette (J.R.W.)

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Hart and Hallett, JJ.A.

June 14, 1993.

Summary:

An accused was charged with committing mischief contrary to s. 430(4)(b) of the Criminal Code by wilfully damaging a motor vehicle registered in his estranged wife's name.

The Nova Scotia Provincial Court, in a decision not reported in this series, acquitted the accused. The Crown appealed.

The Nova Scotia County Court, in a deci­sion not reported in this series, dismissed the appeal. The Crown applied for leave to appeal.

The Nova Scotia Court of Appeal allowed the application and dismissed the appeal.

Criminal Law - Topic 2245

Wilful acts respecting property - Mischief - Elements - Ownership of property dam­aged - [See Criminal Law - Topic 2254 ].

Criminal Law - Topic 2254

Wilful acts respecting property - Mischief - Defences - Colour of right - An accused was charged with committing mischief by wilfully damaging a vehicle - The accused had paid for the vehicle, but registered it in his wife's name because of creditors - The wife was required to get permission before using it - She had the vehicle during their one week separation prior to the incident - She considered it communal property - The Nova Scotia Court of Appeal concluded that the accused had an honest belief, founded on reasonable grounds, that he was the sole owner and affirmed his acquittal where he acted with colour of right.

Family Law - Topic 621

Husband and wife - Marital property - General - [See Family Law - Topic 628 ].

Family Law - Topic 628

Husband and wife - Marital property - Personal property - The Nova Scotia Court of Appeal stated that "[a]part from having a proprietary interest in the matri­monial home by reason of the provisions of the Matrimonial Property Act, R.S.N.S. 1989, c. 275, a spouse does not have a proprietary interest in the other spouse's real or personal property. A spouse has only the right under the Act to apply to the court on marriage breakdown to have the matrimonial assets 'divided in equal shares notwithstanding the ownership of these assets' and the court may order such a division (s. 12). This right does not consti­tute an interest in property." - See para­graph 6.

Family Law - Topic 636

Husband and wife - Marital property - Matrimonial home - Title to - [See Family Law - Topic 628 ].

Cases Noticed:

R. v. Rothe, [1966] 4 C.C.C. 400 (B.C.C.A.), refd to. [para. 12].

R. v. Gillis (1981), 45 N.S.R.(2d) 137; 86 A.P.R. 137 (C.A.), refd to. [para. 15].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 15].

R. v. Purves, [1980] 1 W.W.R. 148; 3 Man. R. 88; 50 C.C.C.(2d) 211; 12 C.R.(3d) 362 (C.A.), refd to. [para. 15].

R. v. Wilke (1980), 56 C.C.C.(2d) 61 (Ont. C.A.), refd to. [para. 15].

R. v. Nelson, [1979] 3 W.W.R. 97; 3 Sask.R. 45 (C.A.), refd to. [para. 15].

R. v. Giles and Ash (1990), 81 Nfld. & P.E.I.R.; 255 A.P.R. 1; 54 C.C.C.(3d) 66 (C.A.), refd to. [para. 15].

R. v. Ninos and Walker, [1964] 1 C.C.C. 326 (N.S.C.A.), consd. [para. 17].

R. v. Hook (1955), 113 C.C.C. 248 (C.A.), refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 429(2) [para. 12 et seq.]; sect. 429(3)(a) [paras. 7, 14]; sect. 429(3)(b) [para. 7 et seq.]; sect. 430(4)(b) [para. 1]; sect. 813, sect. 822(1) [para. 15]; sect. 839 [para. 1].

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 12 [para. 6].

Counsel:

Robert E. Lutes, Q.C., for the appellant;

Respondent, on his own behalf.

This appeal was heard on June 4, 1993, before Clarke, C.J.N.S., Hart and Hallett, JJ.A., of the Nova Scotia Court of Appeal.

Hallett, J.A., delivered judgment for the court on June 14, 1993.