R. v. Zamora

R. v. Zamora

The exceptions to the bail condition pleaded in the information were not essential elements of the offence but constituted surplusage; the Crown was only required to prove the essential elements of the offence (that the accused was bound by the recognizance and committed the prohibited act). Once the Crown proves...

Source-derived case information.

Citation
2013 BCSC 473
Parties
Appellant (crown): Regina; Respondent (accused): Pedro Luis Zamora
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 March 2013
Procedural Posture
Criminal Summary Conviction (breach of Recognizance S.145(3) Criminal Code) / Appeal by Crown From Acquittal in Provincial Court; Disposition: Acquittal Set Aside and New Trial Ordered
Outcome
Appeal allowed in part; acquittal set aside
Legal Topics
Burden of Proof, Onus of Proof, Lawful Excuse, Surplusage Rule, No Evidence Motion, Summary Conviction Procedure
Source Language
english
Criminal Law Criminal Procedure Bail and Recognizance Law Evidence Law Burden of Proof Onus of Proof Lawful Excuse Surplusage Rule +2 more

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Parties

Regina

Appellant (crown)

Pedro Luis Zamora

Respondent (accused)

Procedural Posture

Criminal Summary Conviction (breach of Recognizance S.145(3) Criminal Code) / Appeal by Crown From Acquittal in Provincial Court; Disposition: Acquittal Set Aside and New Trial Ordered

Legal Issues

  1. 1 Whether the Crown must negative exceptions/exemptions pleaded in the information as elements of the offence under s.145(3) Criminal Code
  2. 2 Whether the statutory burden provisions in s.145(3) and s.794(2) shift the onus to the accused to prove a lawful excuse once the Crown proves the prima facie breach
  3. 3 Whether particulars in the information that set out exceptions to a bail condition constitute material averments or mere surplusage

Ratio Decidendi

The exceptions to the bail condition pleaded in the information were not essential elements of the offence but constituted surplusage; the Crown was only required to prove the essential elements of the offence (that the accused was bound by the recognizance and committed the prohibited act). Once the Crown proves those elements the evidential and legal onus shifts to the accused to establish a lawful excuse; therefore the trial judge erred in granting the no-evidence motion and entering an acquittal. The acquittal is set aside and a new trial ordered.

Court Disposition

Appeal allowed in part; acquittal set aside

Orders

  • Acquittal set aside
  • New trial ordered