R v Tomah, 2005 NBPC 39

This case was heard in the New Brunswick Provincial Court.

Jamie Kyle Tomah was charged with night hunting in violation of section 109(2) of the New Brunswick Fish and Wildlife Act. Mr. Tomah argued in court that section 109(2) violated his rights under the Canadian Charter of Rights and Freedoms, specifically s 11(d) which protects the right to be presumed innocent. Under section 109(2) of the Fish and Wildlife Act, if a light source capable of attracting wildlife is proven to be used by a person, the court will presume that the person using the light source has been hunting, unless proven otherwise. The government argued that the legislation did not violate the Charter because the presence of a source of light does not guarantee a conviction. Ultimately, the Court determined that Mr. Tomah's Charter rights were not violated by the provincial legislation. Under the provincial legislation, the government was required to prove that the Defendant, or a person accompanying them, was using a light source in a manner consistent with locating or attracting wildlife. If the government failed to prove this a conviction could not be made, even without any evidence being brought forward by the Defendant. 

View the Decision on CanLII: www.canlii.org/en/nb/nbpc/doc/2005/2005nbpc39/2005nbpc39.html

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