This case was heard in the Court of Queen’s Bench in New Brunswick, Trial Division.
Meat shop owners Reginald and Barbara Falconer were charged under the New Brunswick Fish and Wildlife Act. All five counts fell under s. 51(1), which applies to charges for possession of, as well as offering or exposing for sale, trade or barter, a carcass or portion of moose meat.
Undercover employees of the Department of Natural Resources of New Brunswick became aware of a scheme which involved a group of hunters using an Indigenous group member to claim whatever moose would be killed by a group of otherwise non-Indigenous men. The Falconers became involved in various stages of processing moose meat for what was supposed to be Indigenous hunters in that part of the province. The Falconers were implicated when an undercover member of the Department of Natural Resources paid them to skin, butcher and wrap the meat.
Convictions were entered for all but count two, but it was found that an error in law occurred during this trial. The undercover employees of the Department of Natural Resources were allowed to testify outside and inside the courtroom, but in a way that protected their identities completely.
Defence counsel requested an accommodation with respect to the concealment of these witnesses at the outset of the trial, but the trial judge responded that they could not consider witness demeanor in assessing witness credibility. This is a legally erroneous conclusion.
The implementation of that initial error at the outset of the trial then cascaded into the final verdict because it was uncertain whether:
1. The trial would have unfolded as it did had an “accommodation” been accorded, and
2. It is equally uncertain whether the outcome would have been the same had the judge considered demeanor as a factor in credibility assessment because of the absence of a fulsome cross-examination.
It was thus found that these convictions must be overturned, on all four counts.
View the Decision on CanLII: 2020 NBQB 70 (CanLII) | R. v. Falconer and Falconer | CanLII
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