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ELEMENTS OF THE OFFENCE - Actus reus

Wednesday, May 27, 2020 @ 6:19 AM  


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Appeal by Hweld from a decision of the Summary Conviction Appeal Court (SCAC) that allowed the Crown’s appeal from acquittal on a charge of driving in a lane occupied by a stopped emergency vehicle. The appellant testified at trial he could not pull into the adjacent lane because of other traffic. The police officer testified the other lane was available to the appellant. The adjudicator had a reasonable doubt whether the other lane was available and acquitted the appellant. The SCAC concluded the unavailability of the adjacent lane was not an essential element of the offence but operated as an exception or defence to the charge. It found the appellant must establish on a balance of probabilities that the other lane was not available and ordered a new trial.

HELD: Appeal allowed; appellant’s acquittal reinstated. The SCAC erred in law by transposing one of the external circumstances that defined the offence into the equivalent of an exception or defence to the offence. There was nothing in the language of s. 106F of the Motor Vehicle Act that suggested the burden was on the respondent to establish an exemption, exception, proviso, excuse, or qualification. The onus remained on the prosecution to prove beyond a reasonable doubt all the essential elements of the s. 106F offence. The fact s. 106F was a strict liability offence did not displace the prosecution’s burden to establish the actus reus of the offence. The adjudicator’s finding of a reasonable doubt in the appellant’s favour was not overturned on appeal and was final.

R. v. Hweld, [2020] N.S.J. No. 155, Nova Scotia Court of Appeal, D.R. Beveridge, L.L. Oland and P. Bryson JJ.A., April 15, 2020. Digest No. TLD-May252020006