Cite as: R. v. Longmire, 1992 NSCO 26 1991 C.Y. No. 5894 ' IN THE COUNTY COURT OF DIS'rRICT NUMBER THREE BETWEEN: ROGER .::r. LONGMIRE APPELLANT - and -HER MA.::rESTY THE QUEEN RESPONDENT ' HEARD: By briefs BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 96(2) of the Motor Vehicle Act DECISION: The 24th day of March, A.D. 1992 COUNSEL: Curtis C. Palmer, Esq., for the Appellant Robert M. J. Prince, Esq., for the Respondent D E C I S T 0 N 0 N A P P E A L '
• ' HALIBURTON, J.C.C. The Appellant was convicted after trial before D. Reardon, J.P.C., on the offence that At or near #101, Wellington, Scotia on or about the 8th did unlawfully commit the offence of driving in excess of 100 kilometres per hour contrary to Section 96(2) of the Motor Vehicle Act. At the time of the alleged offence, issued a summary offence ticket R.C.M.P. It was the information portion of this S.O.T. which became the formal information trial. The evidence disclosed that ' Constable Maillet was on d~ty performing highway patrol near the Town· of Yarmouth on Highway #101. product" motor vehicle approaching which seemed "to be well over the speed limit". (Page 25) ... at that point the operational and got a reading on the radar. QUESTION: And what reading did you obtain? ANSWER: I obtained a reading twenty six kilometres per hour. (Page 27) QUESTION: Now, the area that we're referring to, the 101 highway, what is highway? ANSWER: It's a 100 series highway and the speed limit is 100 kilometres per hour. QUESTION: Okay, and how is that indicated along this ' highway? James Yarmouth County, Nova day of August, 1989, (he) Mr. Longmire was by Constable Maillet of the ticket before the Court on the on the day in question, He observed a half-ton "Chev from the opposite direction radar was activated ... to 126, one-hundred and on the speed zone on that
- ANSWER: On signs erected by the Department of Highway, signs are off-white with black numbers. QUESTION: What do they say? ANSWER: Maximum 100. In the course of cross-examination, Defendant drew the attention of the police officer to the fact that the summons portion of compared with the information portion, suggested that Constable Maillet had, in fact, signed the before giving the summons to the had no recollection of when he had signed the information which was before the Court. He agreed with document had not been signed twice. exchange sums up the situation arising from this evidence: (Page 31) QUESTION: Do you remember Justice of the Peace, Crosby particular SOT? ANSWER: No, I don't. QUESTION:- I put it to the original and looking at exhibit D-1 it's a possible interpretation that you exhibit D-1 to Mr. Longmire time Justice of the signature to the SOT not* in possible interpretation isn't it? ANSWER: Yes. QUESTION: And you can't remember for sure how it was that this particular SOT was sworn out? ANSWER: No, I do not. 2 -Counsel for the the summary offence ticket, when information on the highway Accused. The pol ice officer the suggestion that the The following relevant actually going before and swearing out this you Constable that looking at signed the original, gave and that later on at some Peace, Crosby, affixed his your absence. That's a looking at those documents,
- ' (*It is clear that "not" was phrase, either by Counsel or in transcription.) All the evidence before the Court Constable Maillet's testimony. evidence. THE ISSUES The Appellant raises the following issues: 1. That His Honour Judge James D. Reardon erred in his interpretation and application of Section 88(5) of the Motor Vehicle Act, as amended (formerly Section to section 106(2) (formerly Section 96(2)] Motor Vehicle Act. 2. That His Honour ~Tudge ruling that the Summary Offence ticket was properly ' sworn and was therefore not a nullity. 3. That His Honour Judge ruling that the Appellant copy of the Radar Operation Crown's refusal to provide copy of the said Radar violate the Appellant's rights under Sections 7 and ll(b) of the Canadian Freedoms. THE CHARTER ARGUMENT Issue No. 3 arises which had been made before .Judge Reardon. that the right to make full answer and defence was the refusal of the Crown to Operation Manual for the particular radar equipment on that day. As both Counsel proposition in the earlier case 3 - inadvertently included in this was in the form of The Accused himself gave no R.S.N.S., 1989, Chapter 293 79(5)] us it applies of the James D. Reardon erred in James D. Reardon erred in was not entitled to a Manual and that the the Appe 11 ant with a Operation Manual did not Charter of Rights and from a fairly lengthy argument The Defence contended impaired by produce a copy of the Radar being used are aware, I considered that of William G. Wilson v. Her
- Majesty The Queen, C.W. No. 3894, on the 31st of July, 1991. In reaching the conclusion that full disclosure did not require manual, I made the following consider valid: (From page 9) Clearly, it is the modern information which may be in the possession of the Crown which could reasonably assist the Defence in preparing either a substantive cross-examination and evaluating the evidence should be made available. There must, however, be some reason to think that the information sought could realistically be expected to advance the position of the Accused at his trial . . . . In this case, the Constable MacLellan who had been trained and qualified to "operate" the particular radar was obliged to disclose all the evidence his activities vis-a-vis the machine, generated. In the same testify as to comparisons materials, or sampling for air quality, which various machines comparisons is not evidence in the normal sense. matters can obviously become the subject of argument if put in doubt by scientific evidence. illustrated in this case that the way impaired or limited in its ability to challenge the capacity of the radar machine, to record speeds of oncoming vehicles by reason of the reluctance of the Crown operating manual. I do not find that the Charter rights of Mr. have been infringed in this case by the refusal of the Crown to produce the Radar Operation Manual. VALIDITY OF THE INFORMATION The swearing of an 4 -a decision which was delivered the Crown t:o del ivcr the radar comments which I continue to day thinking that any defence or preparing for Crown intended to produce mach inc. The Crown relating to and the results manner as a technician may of ballistics, D.N.A. the means by make these analyses or Such It has not been Defence was in any when operating properly, to "disc lose" or produce the Longmire information is a serious matter
- ' which is entitled to serious treatment by both the informant and the official who receives the information. places the Accused and his freedom in jcop~rdy. however, of laying the information before a Justice of the Peace and swearing to the same is not an act of unusual significance to this informant. that he actually laid perhaps as many as 70 informations a month or 800 to 900 a year. The information in question was laid in August of 1989 and Constable Maillet this matter in October of 1991. that he did not recall the specific circumstunccs of the luying of this particular summary offence information. testify only as to his "general practice" ' actual condition of the information before the Court and on which he was invited to comment. There was no evic:ence that in the laying of the information. The procedure s~ecified course, applies to summary offence proceedings under provincial statutes. It is argued by the Appellant that s. the Criminal Code requires by swearing" of the document be!fore the Justice of the Peace. section says only: 789 ( 1) In proceedings to which this Part applies, information (a) shall be in writing and under oath; ' 5 - It is a step which '1' h c s i rn l:l l c ~ c t , importance or Constable Maillet testified was called to testify in It is obviously not surprising He was able to and to consider the and summons which were any irregularity occurred in the Criminal Code, of 789 ( 1) (a) of implication "the signing and The the
- I would be prepared to accept think that the Justice of the "oath", that is, has fuilcd to require then the information would be a nullity. before the Court here, however, creates the inference that the police officer placed before information which the informant had previously signed and which he then proceeded to swear before the J.P. J.P. affixed his signature and has been cited for the proposition that the informant must sign in the presence of the J.P. It is my view that the laying of an information in the manner just described is regular. It has been suggested regularity" would apply in the circumstances. has no effect where the particular circumstances are established by the evidence and where transpired may properly be drawn. I find the information to be valid as laid. FINAL ISSUE The final issue raised Counsel for the Appellant requires specified statutory provisions of Longmire was charged under what is now s. 106(2). section constitutes an exception contained in subsection l of convenience, I set out the text of the various sections. 6 -that where there is reason to Peace has failed to take the tltc informunt to swcur, The evidence that was the Justice of the Peace an and upon which the stamp of off ice. No authority that the "presumption of That presumption inferences as to exactly what on this appeal as argued by an interpretation of the the Motor Vehicle Act. Mr. This latter to the general provision Section 106. For the sake of
- 7 ' Discernible sign and when sign required 88 ( 5) No provisions of this authorized or required shall alleged violator if, at alleged violation, the sign required is not in proper position or not discernible by an ordinarily observant particular Section does authorized or required, the Section shall be effective without signs being erected. General maximum speed 106(1) Notwithstandinq any Act, but subject to subsection person shall drive a motor vehicle at a speed in excess of eighty kilometres per time. Higher speed limit permitted and offence 106 ( 2) The MinistE!r or Authority may fix rates of kilometres per hour, cut not in excess of kilometres per hour, for certain highways and may erect and maintain signs containing notificution of such rutC' of speed, and the driver of a motor vehicle who exceeds the rate of speed so fixed ' offence. Mr. Palmer, on behalf of the Court to R. v. Vining :1977) the decision of the Appeal Division dealing decision of County Court Judge Vining, like the present one, alleged an infraction of now s . 1 0 6 ( 2 ) . It is to be noted that Vining The case is cited by reason of the following quotations: We have some difficulty in determining from the Learned Judge's decision whether he held that Section 79(5) of the Motor Vehicle Act, respecting the posting of signs, applied or did not apply 96(2), such as that involved in the present case. construe his decision,· however, 79(5) of such a charge and thus as requiring proof of the posting of a sign, as required by that section, and ' with that interpretation we respectfully agree. - Act for which signs are be enforced against an the time and place of the thcr0in uuthori?.cu or person, and whenever a not state that signs are other provision of this (2) and Section 109, no hour on any highway at any the Provincia 1 Traffic speed in excess of eighty one hundred shall be guilty of an the Appellant, has referred 28 N.S.R. (2d) 630. This is with the earlier McLellan. The case against what is was convicted. to a charge under Sect ion We as applying Section
- It is to be noted that when Judge McLellan considered the matter, he noted that Provincial Court Judge from the testimony of the police officers sufficient to establish on a in fact, a sign fixing a maximum speed of that area. (The metric equivalent is the 100 kilometre per hour sign now current.) In response, Mr. Prince, argues that whatever the decision in Vining does not create any greater burden on the Crown than that which is dealt with under s. 88(2). Erection of sign is prima facie evidence 88(2) The fact that the erected and maintained shall 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. Perhaps the time has ratio of that decision is Appellant here. In that regard, by the Crown in this case that Section 106, "an exception, exemption, proviso, the offence or the speed limit set out in subsection that the provisions contained Defence in an appropriate case. s. 794 of the Criminal Code which provides: 8 -there was evidence before the prima facie basis that there was, 65 miles per hour in on behalf of the Crown, may stand for, it That provision is as follows: sign or signal has been be prima facie evidence come to revisit Vining if the that which is described by the I prefer the argument advanced subsection ( 2) is excuse or qualification" to ( 1), and in subsection ( 2) may afford a The procedure is prescribed by
- 9 794(2) The burden of ' exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on defendant ... Having made those observations, necessary to consider whether binding one. A complete answer to the submission made on behalf of the Appellant with respE~ct to the applicability of found in the decision of Judge Reardon. he said: This court is satisfied that the crown (has) discharged the burden upon it under Vehicle Act, and that the presumption created section has not been displaced by evidence tendered on behalf of the accused, and facie proof. ' I am satisfied that there was evidence before Judge which he was entitled to find that the standard signs had erected in the regular fashion. Maillet in that regard was ~either challenged nor contradicted. That such signs were erected and were then in place is a finding of fact made by the Trial Judge. reverse such a finding of fact do so. Accordingly, the appeal conviction and sentence will be affirmed. -proving that an exception, the I should observe that it was not the comment from Vining is a 88 ( 5) is In giving his decision, Sect ion 88 ( 2) of the Motor by that therefore remains prima Reardon on been The evidence of Constable Even if it were appropriate to on appeal, there is no bnsis to will be dismissed. The
- 10 -DATED at Digby, Nova Scotia, this 24th day of March, A.D. 1992. TO: Mrs. Diane Hamilton Clerk of the County Court P.O. Box 188 Yarmouth, Nova Scotia B5A 4B2 Mr. Curtis c. Palmer Barrister & Solicitor P.O. Box 475 Berwick, Nova Scotia BOP lEO Solicitor for the Appellant Mr. Robert M. J. Prince Crown Prosecutor P.O. Box 550 Yarmouth, Nova Scotia B5A 3H2 Solicitor for the Respondent CASES AND STATUTES CITED: William G. Wilson v. Her Majesty The Queen C.W. No. 3894, dated July 31st, 1991 Motor Vehicle Act R. v. Vining (1977) 28 N.S.R. (2d) 630
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.