IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. MacFarlane, 2008 NSSC 8
Date: 20080111
Docket: SY 279421
Registry: Yarmouth
Between: Her Majesty the Queen By Her Municipality of the District of Yarmouth
Appellant
v.
James Foster MacFarlane
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Glen G. McDougall
Heard: September 6, 2007, in Yarmouth, Nova Scotia
Subject: Appeal from a stay of proceedings granted when the Municipality failed to give notice under section 29 of its Dog By-Law D-048-02.
Summary: The respondent was charged with contravening the Municipality’s Dog By-Law. Section 29 of the By-Law allowed the Municipality to give a notice to the alleged offender who, if it was a first offence, could avoid prosecution by paying $30.00 within 14 days of receiving the notice. No such notice was given to the respondent. The defence brought a preliminary motion to quash arguing that the notice was mandatory. The trial judge accepted the argument and ordered a stay of proceedings.
Issue: (1) Did the Learned Trial Judge err in law in finding that the notice under section 29 of the Dog By‑Law was mandatory?
(2) Did the Learned Trial Judge err in law in finding that section 29 of the Dog By‑Law was applicable to the case at bar?
Result: The trial judge's decision to grant a stay of proceedings was based on an incorrect interpretation of section 29 of the Municipality’s Dog By‑Law. The notice was not mandatory. The Municipality had a discretion which it exercised. The trial judge’s incorrect interpretation of the By-Law was an error of law. The order granting the stay of proceedings is set aside and the matter returned to the Provincial Court for trial before another judge.
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