R. v. Thorne and Marks, (1985) 64 N.B.R.(2d) 29 (TD)

• Judge: Jones, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 25, 1985
• Jurisdiction: New Brunswick
• Citations: (1985), 64 N.B.R.(2d) 29 (TD)

R. v. Thorne (1985), 64 N.B.R.(2d) 29 (TD);

    64 R.N.-B.(2e) 29; 165 A.P.R. 29

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R. v. Thorne and Marks

(S/M/195/84)

Indexed As: R. v. Thorne and Marks

Répertorié: R. v. Thorne and Marks

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Jones, J.

July 5, 1985.

Summary:

Résumé:

The accused were charged with unlawfully hunting at night contrary to s. 33(1)(a) of the Fish and Wildlife Act.

The New Brunswick Provincial Court convicted the accused. Marks was sentenced to seven days in jail plus a $500 fine. Thorne was sentenced to 15 days in jail plus an $800 fine. Both accused appealed against conviction. Thorne appealed against sentence, which had now been served.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeals against conviction. The court allowed the sentence appeal, holding that Thorne should only have received the mandatory seven day jail sentence; that since the 15 days had been served the fine should be reduced to the $500.00 minimum.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - The New Brunswick Court of Queen's Bench, Trial Division, distinguished between a reverse onus provision and a provision providing that proof of certain facts established a prima facie case of guilt - The court held that only the reverse onus provision violated the presumption of innocence under s. 11(d) of the Canadian Charter of Rights and Freedoms - See paragraphs 11 to 14.

Civil Rights - Topic 4946

Presumption of innocence - Evidence and proof - Prima facie case - Charter of Rights and Freedoms, s. 11(d) - The accused were charged with unlawfully hunting at night contrary to s. 33(1)(a) of the Fish and Wildlife Act - Section 109(1)(b) of the Act provided that proof of certain facts established a prima facie case of hunting - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 109(1)(b) did not infringe the accused's right under s. 11(d) to be presumed innocent, because a prima facie case did not require the accused to prove their innocence by disproving guilt - See paragraphs 11 to 20.

Criminal Law - Topic 5223

Evidence - Burden of proof - Burden where Crown proves a prima facie case - The New Brunswick Court of Queen's Bench, Trial Division, stated that an accused could meet a prima facie case where a reasonable doubt was raised - The court stated that it was not necessary for an accused faced with a prima facie case to establish his innocence - See paragraphs 11 to 20.

Fish and Game - Topic 2301

Hunting offences - Hunting at night - What constitutes - Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, s. 33(1)(a) - Game wardens spotted the two accused travelling in a car on a secondary gravel road in a game resort at 2:25 a.m. - While being pursued, the accused tossed a loaded rifle from the car - The New Brunswick Court of Queen's Bench, Trial Division, affirmed their conviction for unlawfully hunting at night - The court held that the facts established prima facie proof of hunting under s. 109(1)(b) of the Act, and the trial judge was justified in finding that the evidence raised no reasonable doubt as to the accuseds' guilt - See paragraphs 11 to 23.

Fish and Game - Topic 2484

Hunting offences - Evidence and proof - Burden on accused - The accused were charged with unlawfully hunting at night contrary to s. 33(1)(a) of the Fish and Wildlife Act - Section 109(1)(b) of the Act provided that proof of certain facts was prima facie proof of hunting - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 109(1)(b) did not infringe the accused's rights under s. 11(d) of the Charter of Rights and Freedoms to be presumed innocent - The court held that the section did not shift the burden of disproving guilt to the accused - See paragraphs 11 to 20.

Fish and Game - Topic 2705

Offences - Sentence, fines and penalties - Hunting at night - Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, s. 33(1)(a) - The Act provided for a mandatory seven day jail sentence and a minimum $500. fine for first offences - An accused was previously convicted of an offence under a related Act - The trial judge sentenced the accused to 15 days in jail and an $800. fine - On appeal, the New Brunswick Court of Queen's Bench, Trial Division, held that the accused should only have received the mandatory seven days in jail; that since his sentence had been served, the fine should accordingly be reduced to the minimum $500. - See paragraphs 27 to 31.

Cases Noticed:

R. v. St. Pierre and Thibault (1983), 45 N.B.R.(2d) 435; 118 A.P.R. 435, ref'd to. [para. 12].

R. v. Proudlock, [1979] 1 S.C.R. 525; 24 N.R. 199; 5 C.R.(3d) 21, appld. [para. 14].

R. v. Davis, 108 C.C.C. 257, ref'd to. [para. 14].

R. v. Oakes (1983), 32 C.R.(3d) 193 (Ont. C.A.), appld. [para. 21].

Statutes Noticed:

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 33(1)(a) [para. 1]; sect. 106(1) [para. 24]; sect. 109(1)(b) [para. 11].

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 18].

Counsel:

Wendell J. Maxwell, for the appellants;

James R. McAvity, for the Crown.

This appeal was heard on May 25, 1985, before Jones, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on July 5, 1985: