Cite as: R. v. Longmire, 1993 NSCA 137 S.C.C. No. 02696 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jgnes, Matthews and Roscoe, JJ.A. BETWEEN: ROGER J. LONGMIRE ) Curtis C. Palmer ) for the Appellant Appellant ) ) ) - and - ) John C. Pearson ) for the Respondent ) ) HER MAJESTY THE QUEEN ) ) Respondent ) ) Appeal Heard: ) January 18, 1993 ) ) Judgment Delivered: ) January 18, 1993 ) ) THE COURT: Leave to appeal granted and appeal dismissed; per oral reasons for judgment of Roscoe, J.A; Jones and Matthewsl JJ.A concurring.
The reasons for Judgment of the Court were delivered orally by: ROSCOE. J.A.: The appellant was convicted of speeding contrary to s. 106(2) of the Motor Vehicle Act, R.S.N.S. 1989, c. 293 (formerly s. 96(2». The informant R.C.M.P. officer, using a radar unit, had clocked the appellant's vehicle's speed at 126 kilometres per hour in a 100 kilometre zone. The conviction was appealed from the Provincial Court to the County Court where the appeal was dismissed. The issues raised on this appeal are: 1) whether the trial judge erred in the interpretation and application of s. 88{S) of the Motor Vehicle Act; and 2) whether the Crown's refusal to provide the appellant with a copy of the radar operation manual violated the appellant's rights under ss. 7 and 11 (b) of the Canadian Charter of Rights and Freedoms. FIRST ISSUE Section 88 of the Motor Vehicle Act deals with highway signs, the relevant portions of which are: u 88 (1) Signs and signals erected and maintained under this Act shall state or represent thereon such matters as the Minister shall determine. (2) The fact that the sign or signaJ has been erected and maintained shall be prima facie evidence that the sign or signal is erected in compliance with this Act and that the matter stated or represented on the sign complies with that determined by the Minister.
- 2 (5) No provisions of this Act for which signs are authorized or required shall be enforced against an alleged violator if, at the time and place of the alleged violation, the sign therein authorized or required is not in proper position or not discernible by an ordinarily observant person, and whenever a particular Section does not state that signs are authorized or required, the Section shall be effective without signs being erected.H Mr. Longmire was charged pursuant to s. 106(2). Section 106 is as follows: " 106 (1) Notwithstanding any other provision of this Act, but subject to subsection (2) and Section 109, no person shall drive a motor vehicle at a speed in excess of eighty kilometres per hour on any highway at any time. (2) The Minister or the Provincial Traffic Authority may fix rates of speed in excess of eighty kilometres per hour, but not in excess of one hundred kilometres per hour, for certain highways and may erect and maintain signs containing notification of such rate of speed, and the driver of a motor vehicle who exceeds the rate of speed so fixed shall be guilty of an offence.H The first issue is whether or not the trial judge correctly interpreted s. 88(5) of the Motor Vehicle Act. The pOlice officer testified that the speed zone on the highway in question was 100 kilometres an hour and that that is indicated lion signs erected by the Department of Highway". He also indicated the signs are off-white with black numbers and say "maximum 100". The trial judge found that that evidence was sufficient to discharge the burden on the Crown under s. 88(2). The trial judge indicated that the burden then shifted to the defence if they wished to rely on s. 88(5) to show that at the time of the alleged offence the sign was not visible.
- 3 The appellant submits that the burden of proving that the sign was in the proper position and discernable by an ordinarily observant person is on the Crown. The appellant relies on R. v. VIning (19n), 28 N.S.A. (2d) 629 (N.S.S.C.A.D.) for that proposition. In Vining there was proof that the signs were posted and visible and there was no evidence to the contrary. The Court did not expressly deal with s. 794(2) of the Criminal Code which is as follows: II 794 (2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the .. information. 1/ , ~ \V\l . \1\ \ .4 V) ( ~. . In our view, s. 88{S) creates an exception or exemption and therefore ~~ the burden is on the defendant to prove that it applies. On this issue, we agree with the trial judge that the Crown had proved the posting of the signs and the presumption created by s. 88(2) was not displaced by any evidence tendered on behalf of the accused. SECOND ISSUE The second issue is whether or not the accused was denied the right to a fair trial and the right to make a full answer and defence because of the refusal of the Crown to provide him with a copy of the radar operation manual. The appellant argues that his rights pursuant to ss. 7 and 11 (b) of the Canadian Charter of Rights and Freedoms were breached and thus this Court should substitute an acquittal for the conviction.
- 4 As a preliminary motion before the trial judge, defence counsel sought a stay of proceedings because of the Crown's refusal to provide a copy of the manual. Defence counsel indicated that his reason for asking for the manual was "so that the defence can make itself familiar with the particular operation of this particular radar unit and in order that we can intelligently cross-examine the Crown witness with regard to how he operated the radar unit on that day·. He also indicated that the manual would be helpful in dealing with what sort of items might interfere with the operation of the unit resulting in inaccurate readings. He also wished to have information on the proper procedure for testing the accuracy of the machine. The Crown, in response to the preliminary motion, indicated that it would not provide a copy of the manual but would consent to an adjournment so that the defence counsel could hire an expert in the operation of the radar machine. The trial judge declined to order a stay but did grant an adjournment to see whether or not defence counsel could obtain the manual from another source. Defence counsel did not pursue the matter of disclosure on the adjourned date. Nor did defence counsel cross-examine the officer regarding the operation of the radar unit other than with respect as to whether the patrol car speed was correctly shown on the unit. On this appeal, the Crown takes the position that there is no -air of reality to the appellant's suggestion that a copy of the manual would have had any meaningful capacity to advance the defence". We agree with that position. Firstly. the appellant did not pursue the matter of disclosure after the adjournment and secondly. he did not lay a rational basis or factual foundation for his request before the trial judge. In the absence
- 5 of an air of reality to the request for production, there is no evidence of a breach of the Charter. While leave to appeal is granted, the appeal is dismissed. Concurred in: Jones, J.A. Matthews, J.A
...___.__ .. _______ ________~~!•t• M.- ~. .'I•S• ·.•·•.;,.•-.•n•.l CANADA PROVINCE OF NOVA SCOTIA 1990 IN THE PROVINCIAL COURT
HER MAJESTY THE QUEEN
and
ROGER JAYE LONGMIRE
HEARD BEFORE: His Honour Judge James D. REARDON, J.P.C. PLACE HEARD: Yarmouth, Nova Scotia DATES HEARD: Trial - April 23, 1990 Trial - October 29, 1990 Decision - February 12, 1991 CHARGE: At or near' 101, Wellington, Yarmouth County, Nova Scotia on or about the 8th day of August, 1989, did unlawfully commit the offence of driving in excess of 100 kilometres per hour contrary to Section 96 (2) of the Motor Vehicle Act. COUNSEL: Robert M.J. PRINCE, for the Prosecution DEFENCE: Kirk PALMER, for the Defence C A S E ON A P PEA L
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