\ Cite as: R. v. Osborne, 1992 NSCO 49 CA.NADA PROVINCE OF NOVA SCOTIA COUNTY OF ANTIGONISH C. AT. No. 2843 IN 'l'IIE COUN'fY COUR'f FOR DIS'l'RIC'f NUMBER SIX BE'l'~'lEEN: PAUL VINCENT OSBORNE Appellant --and-HER t-11\JES'!'Y 'l'IIE QUEEN Respondent ' Paul Vincent Osborne, represented himself. Ronald J. MacDonald, Esq., Solicitor for the Respondent 1992: October 15, MacLellan, J.C.C.: This 1s an Appeal by Paul Vincent Osborne from a conviction entered against him on the 13th day of December, 1991, in Provincial Court in Antigonish by Judge John Embree. 'l'he Appellant was charged that he did:- "On or about the lUt:h day of January, 1991, at or near Pomquet, in the County of Antigonish, Province of Nova Scotia, did unlawfully commit
-2-the offence of operating speed for existing conditions contrary to Section 101 of the Motor Vehicle Act." By Notice of Appeal, dated the 6th day of January, 1992, the Appellant asked that the conviction be overturned and an acquittal entered on Judge erred in a point of law. 'rhis matter was heard on the 1992, following the filing of briefs by both the Appellant and the Respondent and decision was reserved. 'l'he evidence presented at trial disclosed that the Appellant was driving a five from Dartmouth to Sydney and was at 'l'aylor' s Road, outside of Antigonish, The other vehicle was driven and his vehicle was struck from behind by the truck driven by the Appellant. His car received extensive damage was forced off the highway and his the vehicle, was injured. Mr. Ilardigan testified that from Antigonish to Port Hawkesbury that the accident occurred He described the driving conditions as dark and snowing. He said he was going about 60 and that he could not see the markings because of the snow. He said that he saw the Appellant's truck coming up behind him and realized that he was going to be struck from behind~ He prior to the collision and manner. I a vehicle at excessive the grounds that the Trial 22nd day of September, ton truck proceeding east involved in an accident on highway 104. by Carl Michael Hardigan and son, a passenger in he was travelling east on highway 10 4 and somewhere around 7:15 a.m. to 70 kilometers per hour on the pavement. said he didn't shift lanes was driving in a cautious
-3-Two police officers testified that they accident scene around 8 p.m. Antigonish. Constable Seewald several inches of snow on the road and driving. He said that hE~ found on the side of the road and ditch on the right-hand side of the highway heading east. Ile took a statement frora the indica ted that he had been the driver of did not advise the Appellant at that charged. Mr. Hardigan and his wife the scene when the police arrived because they by ambulance. Constable Seewald Hardigan about the accident. Constable Briggs, the other ' arrived with Constable Seewald the vehicles at the scene. He as being very bad and that the said it was raining when they left Antigonish. 'l'he Appellant testified that he was driver with a good record. lle early that morning and that he first the New Glasgow area. lie said outside of Antigonish at Lower up behind the car driven by Mr. vehicle was going very slew. be 20 kilometers per hour. lie said that there were three lanes of traffic 1n that area in the right-hand lane. Going east at that point there also was a passing lane and one lane of traffic proceeding came on the after travelling from indicated that there was he had difficulty the Appellant's truck Mr. Hardigan' s car in the Appellant in which he the truck. He time he would be and son were not on had left later talked to Mr. officer on the scene, and took photographs of described the conditions roads were slushy. He a longtime truck said he left Dartmouth ran into snow in he was proceeding east South River when he came Hardigan. He said that Ile estimated the speed to and that Mr. Hardigan was
-4-west. rrhe Appellant said that on the highway and that he was per hour when he came up behind He said at that point he moved into the passing lane and just as he came up to the vehicle, started to move to the left also. happened he had first considered continue the passing maneuver but saw an oncoming vehicle and therefore he slowed down and moved back to the right. He said that at that point the Ilardigan vehicle also moved to the right and started to by hitting his brakes hard, but could not stop and struck the Hardigan vehicle on the rear end highway. He was able to stop assistance to the occupants An ambulance arrived on the scene family to the hospital. The Appellant waited for the police to arrive and he explained what Seewald. The Appellant's position caused by the actions of Mr. left out of the slow lane and right and applying his brakes. control of his truck and was limit. Evidence from the police the speed limit in the ·area 90 or 100 kilometers per hour. The Trial Judge found that he could see the markings going about 70 kilometers the Hardigan vehicle. the Hardigan vehicle He said that when this moving further left to brake. He said he reacted pushing it off the his vehicle and offered of the Hardigan vehicle. and took the Hardigan happened to Constable was that the accident was llardigan in moving to the then moving back to the lie felt he was in complete driving within the speed officers indicated that of the accident was either he did not believe the
-5-version of events as described by the Appellant. that he believed Mr. liardigan about his speed and rejected the Appellant 1 s evidence that only travelling at 20 kilometers per hour. that based on the pictures of the Hardigan vehicle, that the Appellant must have been because of the amount of damage to the car. 'rhe •rrial Judge found that conditions that this called for a great deal of care by anyone using the highway at that time. He Appellant was driving at an excessive rate of the existing conditions and found him guilty. On the Appeal, the Appellant complained about a of rulings made by the Trial He alleged that he had not been ' to giving a statement tc Constable Constable Seewald had discussed his evidence with Constable Briggs after being told by the Judge not to do so. During the trial, a voir dire was the admissibility of the statement given by the Appellant. 'l'he 'l'rial Judge ruled that voluntarily and that there was I find that the 'l'rial Judqe 1 s proper. On the issue of the conversation between the pol i C'' o[ ficers, the Trial Judge was asked to declare a but refused because he found conversation between the. officers it was evidence to be presented at the trial and therefore no effect on the evidence of lie found the Hardigan vehicle was He also found going faster than he said were bad and therefore found that the speed for number Judge during the trial. given his rights prior Seewald and that held to determine the statement was given no Charter violation. ruling on that issue was mis L.c iill that while there was some not about the had Constable Briggs. I find
-6-that this ruling was also proper It should be noted that the evidence of the police officers did to some extent differ on arrived at the accident and that they were not attempting evidence on all points was in the trial was how the accident actually happened the police evidence went only to the road conditions when they arrived on the scene. 'l'he Crown take the position that the 'l'rial decision was reasonable based and that it was proper for he believed. The standard for set out J.n the Supreme Court (1987) 36 C.C.C. (3d) 417, wherein an 1\ppeal Court must determine one that a properly instructed could reasonably have rendered. Court should re-examine, and and consider the effect of the evidence. Applying that test to this evidence presented at trial by the •rr ial Judge and that it was to find that he favoured the over that of the 1\ppellant. I that finding of credibility. I also find that by accepting the evidence of Mr. llardigan it was reasonable to conclude, as he did, that the acc~dent was speed of the 1\ppellant 1 s vehicle. evidence of the bad road conditions could reasonably lea4 in the circumstances. what they saw when they therefore it would appear to make sure that their identical. The main issue and Judge 1 s on the evidence before him him to decide which witness an 1\ppeal Court has been of Canada in R v. Yebes, the Court held that whether the verdict is jury, acting judicially, To apply that test the to some extent, re-weigh case, I find that the supported the finding made reasonable for him evidence of Mr. Hardigan am not prepared to overturn caused by the excessive This along with the J
-7-to a conclusion that the l\ppellant excessive rate of speed based at the time. I would therefore dismiss the conviction and sentence imposed by the Trial Judge. '-- -...._ -~:- Judge Douglas L. MacLellan County Court Judge Distric;t' Nwnber Six ' was travelling at an on the conditions existing the appeal and confirm I/ / h" aeL--.......... \.\: v-(.....~ (
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