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R. v. Choice Atlantic Seafoods Inc., 2001 NSSC 161 (CanLII)

[7]              Saskatchewan Court of Appeal in R. v. Poorman 1991 CanLII 2759 (SK C.A.), (1991), 6 C.R. (4th) 364 (Sask. C.A.) addressed this issue by quoting extensively and adopting the principles in two English cases: R. v. Newton (1982), 77 Cr. App. R. 13 and Williams v. R. (1984), 77 Cr. App. R. 329 (Div. Ct.).  Vancise J.A. held:

“Where there is a divergence of opinion or conflict of evidence not proven, the trial judge must not accept the Crown’s version of the unproven facts as related at an informal hearing.  If there is a substantial conflict he must either: (1) hold a formal sentencing hearing at which time the Crown must prove the facts alleged on the criminal standard of proof, that is, beyond a reasonable doubt; or, (2) “so far as possible,” accept the accused’s version of the facts stated at the informal hearing, at which there is no evidence.”

[8]              As noted in Williams v. R., supra in not being prepared to proceed on the basis that the offender’s version is substantially correct, the Court must hear the evidence before forming its own view on the matter in dispute even if the evidence is very slight and no evidence is called in contradiction.  This conclusion finds support in s. 724 (3)(d) of the Criminal Code.

Jim O'Neil, LL.B.

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