R. v. Godin, [1988] 1 SCR 226

r. v. godin, [1988] 1 S.C.R. 226

William Godin, Réginald Devost, Donald Dionne and Rhéal Lizotte         Appellants

v.

Her Majesty The Queen                                                                   Respondent

indexed as: r. v. godin

File No.: 19294.

*1987: March 30.

*Present: Beetz, McIntyre, Lamer, Wilson and Le Dain JJ.

**Re‑hearing: 1988: January 27; 1988: February 11.

**Present: Beetz, McIntyre, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for new brunswick

                   Criminal law ‑‑ Discharge of firearm to prevent arrest ‑‑ Gunfire exchanged between accused and Forest Service officers ‑‑ Rights and powers of Forest Service officers uncertain at the time of the incident five years ago ‑‑ Interests of justice best served by restoring the acquittals.

                   Held: The appeal should be allowed.

                   APPEAL from a judgment of the New Brunswick Court of Appeal (1985), 62 N.B.R. (2d) 91, 161 A.P.R. 91, allowing the Crown's appeal from the acquittals of the accused on a charge of intentionally discharging a firearm in an attempt to prevent arrest contrary to s. 228 (c) of the Criminal Code . Appeal allowed.

                   Maurice F. Bourque, for the appellants.

                   Graham J. Sleeth, for the respondent.

                   The following is the judgment delivered by

1.                       The Court‑‑There were acquittals at trial on the principal offence of discharging a firearm with intent to avoid arrest. The acquittals were overturned on appeal and a new trial ordered: (1985), 62 N.B.R. (2d) 91, 161 A.P.R. 91. The Court of Appeal found error in the directions, relating to included offences, which were given to the jury by the trial judge. Assuming without deciding that such error existed, we are nevertheless of the view that in light of the uncertainty concerning the rights and powers of the Forest Service officers at the time ‑ a matter which was not canvassed in the Court of Appeal ‑ and in light also of the fact that a period in excess of five years has elapsed since the events giving rise to the charge occurred, the interests of justice will be best served by allowing the appeal and restoring the acquittals.

                   Appeal allowed.

                   Solicitors for the appellants: Charest, Bourque & Cyr, Edmundston.

                   Solicitor for the respondent: Graham J. Sleeth, Fredericton.