Cite as: R. v. Darrach, 1992 NSCO 40 CANADA PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX C.H.77634 I N T H E COUNTY C 0 U R T OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN, Respondent - and -CHRISTOPHER DARRACH, Appellant Ms. M.E. Donovan, solicitor for the Respondent. Tim Hill, Esq., solicitor for the Appellant. 1992, September 2, Cacchione, J.C.C.:- The appellant Chritopher Darrach was charged that he on the 22nd of October 1991 did fail to yield the right of way to a vehicle already in an intersection when making a left turn contrary ' to s.l22(3) of the Motor Vehicle Act R.S.N.S. 1989 c.293. At the conclusion of the trial where three witnesses testified on behalf of the Crown and two witnesses testified on behalf of the Appellant, the learned Provincial Court Judge stated I do find that the charge is made out on the evidence. I don't have a reasonable doubt on the issue. It seems that Mr. Darrach failed to yield the right of way to a vehicle already in the intersection. So for that reason I would enter a conviction. (Transcript p.56)
- 2 -The appellant appeals his conviction on the following grounds 1. the learned Judge erred in law, no evidence that contravened the provisions of s.l22(3) of the Motor Vehicle Act; 2. the learned Judge erred in law, no evidence that approaching the constituted an immediate hazard; 3. the learned Judge erred in law, consider the obligation approaching an intersection to yield to drivers making a left turn within the intersection. ' A review of the evidence versions of how the accident appellant's evidence was that vehicle and engaged his turn signal indicator in preparation for a left turn. When the the appellant proceeded to make by an oncoming vehicle driven by Ms. Hallett. testified that the oncoming motor vehicle was approximately 100 meters away from the intersection making his turn. Provincial Court there being the Appellant Provincial Court there being any vehicle intersection Provincial Court in failing to of drivers discloses two different occurred. In brief, the he had stopped his motor traffic light turned amber his turn and was struck The appellant when he commenced
- 3 The Crown evidence through and 0' Handley was that the Hallett motor vehicle entered the intersection on a green turned amber while the Hallett intersection. Section 122(3) of the 1989 c.293 reads as follows: The driver of a an intersection intending to the left shall yield to any vehicle approaching from direction which intersection or so as to constitute an immediate hazard, but said driver having ' and having given a as required by law left turn, and approaching the intersection the opposite direction to the driver making the left turn. As can be seen from the learned trial judge's decision she made a specific finding of fact that the Hallett motor vehicle was in the intersection when the accident occurred. A review of the transcript there was sufficient evidence enable her to make this finding. v. The Ship •Kathy K• et al. (1975), Ritchie stated at p.366 ' -its witnesses Hallett light and the signal light vehicle was in the Motor Vehicle Act R.S.N.S. vehicle within to turn the opposite is within the close thereto so yielded signal when and may make the other vehicles from shall yield of evidence discloses that before the trial judge to In Stein Estate et al. 6 N.R. 359, Mr. Justice
- 4 -These authorities taken as meaning that of fact made at trial are immutable, but rather that they be reversed unless established that the judge made some overriding error his assessment of the facts. the Court of Appeal the duty of re-examining the evidence in order to be satisfied such error occurred, in my view, a part to substitute its the balance of probability findings of the judge at the trial. The learned trial judge had the opportunity of hearing and seeing the witnesses and on their credibility. Although ' her judgment, it can be inferred she chose to accept the evidence and to reject that of the Appellant Travelers Indemnity Company of 66 N.S.R. (2d) 434 Mr. Justice the respective duties of the trial At p. 437 he stated This and other have said time after credibility of witnesses is a peculiarly within the the trial judge. He advantage, denied appeal court judges, of seeing and hearing the witnesses; of observing their ' are not to be the findings are not to it can be learned trial palpable and which affected While is seized with that no it is not, of its function assessment of for the who presided of making determinations not directly stated in from her verdict that of the Crown witnesses and his witness. In Canada v. Kehoe ( 19 8 5 ) , Macdonald commented upon and appellate court. appellate courts time that the matter province of has the distinct demeanor and
-- 5 conduct, hearing their speech and subtlety and generally is those intangibles must be weighed in determining whether or not a witness is truthful. are the matters that are not capable of reflection in the written and it is because that save stronsr and appellate tribunals are not justified in reversing a finding of credibility made by a trial judge. is that so where, as here, was heard by an experienced judge. Considering the evidence that judge her finding that the appellant failed to yield the right of way to a vehicle already cannot be said to be unreasonable. is dismissed without costs. nuances of of expression presented with that so often These record of such factors cogent reasons Particularly the case trial was before the trial in the intersection Accordingly the appeal Judge of the County Court of District Number One
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