County Court

J. Cite as: R. v. Jordan, 1989 NSCO 16 CANADA C. P. No. 12, 269 PROVINCE OF NOVA SCOTIA COUNTY OF PICTOU IN THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER FIVE (CRIMINAL) BETWEEN: HER MAJESTY 'rilE QUEEN, on the information of , JOlIN S. MACDONALD - RESPONDENT - and ­ MARK WAYNE JORDAN - APPELLANT Before the Honourable Judge H. J. MacDonnell, a Judge of the County Court for District Number Five Elizabeth Van den Eynden and Bruce MacIntosll, of Counsel for the Appellant T. Robert Parker, Q.C., of Counsel for the Respondent Pictou, N. S. DEC I S ION • 1989, February 23, MacDonnell, II. J., !,tJ .C.C. On September 20tll, 1988, Mark Wayne Jordan was convicted by His Honour Judge Robert Stroud, a Judge of. the Provincial Court of Nova Scotia, on the charge: T h rt t Mi1 r k Wily n (> , Tor d., n c1 j d, 011 0 r a h 0 II t 1- II e 22nd day of ,Julle, A.i)., 1988, at or neClr Ml:'l ­ rnerby Beach, jll l:lle County of Pictou, Provin­

- 2 ­ ce of Nova Scotia, unlawfully operate a motor vehicle contrary to Section 90(1) of the Motor Vehicle Act, R.S.N.S., 1967, c.191. Jordan was ordered to pay a fine of $100.00 and costs of $10.00, with thirty days to pay, and that his driver's license be suspended for a seven (7) day period commencing October 20, 1988. Jordan appealed his conviction to this Court on the following grounds: 1. That there was no evidence before the Court to support a finding: (a) that the J\ppellant was the operator of the motor vehicle; (b) that the J\ppellant was operating the motor vehicle contrary to Section 90(1) of ttie Motor Vehicle J\ct (supra); (c) that the J\ppellant was the identified Defendant in this matter. 2. That in the alternative, the verdict was unreasonable, in that th;e. weight of the evidence was such that it was unsafe to rest a convic­ tion upon. 3. That the Learned Judge erred in law i~ holding that the conservation officer appointed pursuant to the Crown Lands Act, S.N.S. 1987, Ch. 5 as amended, is a peace officer with the authority to lay charges under the Motor Vehicle Act (supra). 4. That the Learned Judge erred in law ill holding that the summary of~ence ticket is­ sued and served upon the De'fenc1ant was valid. Section 90(1) of the Motor Vehicle J\ct reClds: 90 (l) Every person dri ving or operating a motor vehicle on a highway or any place ordinarily accessible to the public shaLL drive or operClte the same in a careful and prudent manner hClvjng regard to all the cjr­ cumstal\ces.

, - 3 ­ The sole wi tness a t the trial was John Speilcer MacDonald, who identified himself as being a Conservation Officer with tile Department of Lands and Forests in Nova Scotia. MacDonald's t:estimony was to the effect that he had been a member of the Conservation Force for three years, and in the Summer months of 1988 had been assigned to do peace keepillq and law enforcement duties in the Provincial Parks in pictou COUll 1- y. On June 22nd, 1988, at approximately 10 p.m., he was on duty in Melmerby Park, near Melmerby Beacll, Pictou County. He was accompanied by Cst. Dwayne Rutledge, of the New Glasgow Police Department, and was operating a marked Lands and Forests vehicle. It was dark, and MacDonald and Rutledge were seated_ in the parked Lands and Forests vehicle when he observed two vehicles approaching from the direction of the second parking lot towards the third parking lot in the Park. The two vehicles appeare,d to be 'travelling 'at a high rate of speed. The only other vehicle in the area was a light blue Monte Carlo parked in the third parking lot. The approaching vehicles were approximately three car lengths apart, and MilclJonald was approximately 500 to 550 meters from the vehicles when he first saw them. The vehicles had their headlights on, and there was a considerable amount of rocks and .. dust being thrown up from , , , their passage. The wi tness indica ted'!' tha t in his opinion they were exr.eeding the posted speed limit of 30 J::ilometres per hour. He estimated the speed of the vehicles at approximately 50 kilometres an hour. Upon entering the third parking- lot, the first vehicle did (l high sppec1 turn, <lnd CClme to a stop. MacDollilld described

4 the first vellicle as doing one circle, and identified it as a 1987 'I'rans Am, which was later identified as being owned by Wayne Jordan, the father of the Appellant. At the time the Jordan vehicle made the circle described by MacDonald as a "donut", the Monte Carlo was parked about 20 yards to the north, and the second vehicle was approximately three car lengths behind. When the vehicle allegedly operated by .Jordan came to a stop, the second vehicle continued to do four or five more circular turns in front of the first vellicle, whereupon MacDonald turned on the lights of Ilis vehicle, and drove to the parking lot stopping in front of the two vehicles. , MacDonald's evidence as to what happened next is as follows from the transcript at page 14: Q. Tell us what happened when you went up to the two vehicles? A. I told the accused he would be char­ ged with careless an~ imprudent dri ­ ving and he was given Q. Was that Mark Wayne Jordan? A. Yes sir. Q. How did the gentleman identify him­ self? By Mr. Bruce MacInto.sh Objection. Sorry Your Honour as long as we are not going to get .t'llto statements of the gentleman himself. " By the Court No that was not the question Q. How did the gentlemAn identLFy him­ self please? ­ 1\. lie <JrtV~ m~ his UCPllse, his driver.s license.

- 5 ­ Q. What was that name please? A. Mark Wayne Jordan. Q. What was his address? A. Box 766, Foster Avenue, Stellarton, BOK ISO. Q. Did you ascertain who the re9istered owner of that vehicle was? A. Yes it was I believe Wayne Jordan the gentleman's father. Q. When you went up to the vehicle was there any other persons ill the veh­ icle apart from Mark Wayne Jordan? A. There were three other people in the vehicle besides the driver and at the time I noticed there was n.one wearing a seatbelt. Under ·cross-examination as to identification of the accused, Jordan, MacDonald's evidence at p~ge 28 of tile transcipt is: ,, Q. It is quite fair to say Mr. MacDonald· that you cannot swear to us today that it was in fact Mr. Jordan who was driving that motor vehicle? A. No he was just behind ... Q. At the time that the donuts were or the turn was performed? You can't swear that it was Mr. MacDonald? , A. No. , I I ' ,/ Q. Just to reiterate that point Mr. Mac­ Donald your evidence is before us now you cannot swear to the fact that Mr. Jordan was operating the 1978 Trans I\M at the time the tiine the turns were made? 1\ •. I t WAS a 87 TrAns l\M lIIaO! and Mr. ,Jor­ dan was in tile seal: nonn<111y occupied

- 6 ­ " by the driver when I approached the vehicle. Q. When the vehicle was stopped and you approached the vehicle but you can­ not swear that when that 1978 Trans AM was maneuvering in that turn you cannot swear to us today .. By the Crown It seems to me the witness has already answered that question two if not three times. By Ms. Van den Hynden(Sic) I just thought it should be clarified Your Honour. I had asked various questions at that time and I had used a wrong name, I used Mr. MacDonald instead of Mr. Jordan and I just wanted to be clear on the record. By the Court I will let you ask it one more time but I agree with Mr. Parker but if you feel it is necessary to clear up the record. Q. Just to conclude Mr. MacDonald on that point, you can't swear that at the time the car was; making the man­ euver of the turn that Mr. Jordan was sitting in the drivers seat and operating that motor vehicle? A. At the time in the turn mam no. MacDonald then issued Summary Offence ticket, No. 105801n. in the name of Mark Wayne Jordan, and gave a copy of the ti rJ'":C' I: to the person behind the wheel of the . motor vehicle . ! ; MacDonald in his testimony '.identified some pictues of the area taken the next day, and reiterated tLat the evening in question was dry, there were no 'persolls walking or strolling lfl the area of the third parking lc:t, and thCl!: lie was Clpproxilllately 300 meters away when the Jord<111 vehicle entered tile til i nl [larking lot <It i'1 rather Itiqll rCltc of speed.

- 7 ­ Following submissions of Counsel, Judge Stroud rendered his oral decision, and completed and, signed the court record 011 the reverse of the Summary Offence Information, by endorsing a finding of guilty, showing the f'ine and costs, as well as the license suspension, and stating that judgment was givel) on Se~tember 20th, 1988, at Provincial Court at New Glasgow. For some unexplained reason, the Trial Judge, following the filing of the Notice of J\ppeal, filed an amended decision, which in some respects varied from the original decision delivered at the conclusion of the trial. Counsel on behalf of Jordan and the Crown agree that the Provincial Court Judge lost jurisdiction following the delivery of his decision and the entry of conviction on the Information. I agree with Counsel's submissions, and find that once Judge Stroud had given his oral decision convicting Jordan, and endorsed the same on. the reverse o~ the Summary Offence Information, he became functus officio. Thus, on the appeal, this Court can only look at, and take into consideration, the original oral llr"'(" i r; delivered by the Trial Judge at the conclusion of the head "'I Judge Stroud in his oral decision delivered at the (;011- elusion of the hearing, said in part as follows: "On the identity issue it is true that the only testimony we have on iilentity or anything else for that matter is thai of Constable MacDonald and it is true according to my notes that he did not identify the accused in the Courtroom today. lie may not have been able to identify him I don't know, the question was not asked but he did identify him as the person who showed him his driver's license on the night in question and identified him­ self by way of that drivers license on that occasion. I\s to the question as to the fail­

- 8 ­ ure of Constable MacDonald to be able state with absolute certainly that the accused was driving the vehicle at the time it went through the manouvers described by him as a donut or sharp sudden turning, to me that is the only evidence I have as to the circumstances of what happened. He saw the maneouver short­ ly thereafter, and I think it was shortly thereafter it doesn't take very long for the second vehicle to go through three quick turns and for Constable MacDonald to approach the vehicle from a distance of some 300 to 350 meters takes a relatively short period of time and he gave evidence that the accused was behind the drivers seat at that partic­ ular time, in the position normally occupied by the driver. As I say that is the only evidence I have and on the absence of any conflicting evidence I have identity evidence as far as I am concerned." At the conclusion of his oral decision, Judge Stroud stated: "In this case all I have is the evidence of the Crown which in my opinion provides prima facie proof beyond a reasonable doubt on all elements of the offence. The way is open for evidence to be induced and I don't make any comment as to the failure of the accused to testify because that would be improper. The evidence is clear that there are three other individuals in the vehicle with the accused in the vehicle on that occasion who could have very well shed more light on the questions raised as to identity, circumstan­ ces on that occasion but I don't have that evidence before me so I am therefore left with what I consider to be a prima facie case, proof beyond a reasonable doubt of all the elements of the offence so under the circum­ stances I find the accused ~uilty as charged." Counsel for the Crown and the J\ppellant state in their submissions on "the jurisdiction of tllis Court on appeal pursuant to a matter taken under Section 748 of the Criminal Code that this Court has the srlme scope 0 [ review as a COLI r t 0 f J\ppea 1 .Judge

- 9 ­ .~ pursuant to Section 613(ll (a) of the Crimitlal Code. Counsel appear to be in agreement on this Court's appellate power, however, draw different conclusions from the cases they cite. Counsel for the I\ppellant refers to the decisions in R. v. G~ (198ll 60 C.C.C. (2d) 169; R. v. SangflA.. (1971) 6 C.C.C. (2d) 123, and R. v. Ga1.e. (1984) 15 C.C.C. (3el) 143, in support of his submissions as to the power of this court. Counsel for the Crown refers to the case of R. v. Bac.kman, (1983) 53 N.S.R. (2d) in support of his interpretation of this Court's powers as an I\ppeal Court. In considering the grounds of I\ppeal, this Court is aware of the limitation of its powers in acting as an I\ppellate Court. In HaJlpeJr.. v. The. Queen (1982), 65 C.C.C. (·2d) 193, Mr. Jus­ tice Estey, delivering the majority judgment of the court, said at p.210: "I\n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or in­ nocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether- the trial Court has properly dir-ected itself to all the evidence bearing on the relevant issues. Where the recor-d, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of s~ch evidence, then it falls upon the reviewing','tribunalto inter­ cede." In Ye.bu v. The Que.el1, 36 C.C.C. (3d) 4·17, Mcintyre, J., in delivering the judgment of the Supr-cllle Court of Canada stated at p. 430: "The funct.i.on of thf' Court. of l\preal, under s. 613(l){a) of the Criminal Code; goes be­

- 10 ­ yond merely fj mJing that there is evidence to support a conviction. 'I'he court must de­ termine on the whole of the evidence whether the verdict is one that a properly instruc­ ted jury, acting judicially, could reasonably have rendered. \vhile the Court of l\ppeal must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine and to some extent re­ weigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence." 1'he issue raised by grounds 1 (a) and (c) in the Notice of l\ppeal is: Have the Crown proved beyond a reasonable doubt that the l\ppellant, Mark Wayne Jordan, was the operator of the motor vehicle observed , approaching the parking lot. jn the Melmerby. Beach Park at a high rate of speed, and oper­ ating the said motor vehicle in a circular motion in the parking lot on the night in question. On behalf of the l\ppellant it is submitted that the , wi tness, MacDonald, was unable to 'iden ti fy the dr i ver at the time the offence occurred, his only evidence being that someone who produced a driver's license marked "Mark Wayne Jordan" was sittillq behind the driver's seat when he arrived on the scene. Further, there is no evidence that at the trial MacDonald identified the l\ppellant, Mark Wayne Jordan, as one and the same person who he saw in the driver' s sea;~, and who produced a dr i ver' s "! license on the night in question. In support of his sul5missions as to identity, Counsel for the l\ppellant cites R v. Mac/.()((n (J973) 11 C.C.C. (2d) 568. In that case the fClctu(ll situi1tion wag somewhat simi L,r, an officer stopped a vehjcle (lnd agke(1 the driver to produce his licenge

- 11 ­ and vehicle permit. Upon the driver complying, the officer read the driver's license, and asked "Are you George Robert MacLean, the' person named in this license" and the driver indicated that he was. On trial, the officer under cross-examination, admitted that he was unable to identify the driver during tIle proceedings. On Appeal, the late MacLellan, C.C.J., at page 572 stated: " I have reached the conclusion that there has not been sufficient proof of identity of the offender in this case. I think I am entitled to take cognizance of the fact that there are many persons in Nova Scotia of Scotch­ Irish descent and that the surname "MacLean" is not a distinctive name in Nova Scotia nor are the Christian names of "George " and "Ro­ bert" unusual in Nova Scotia families. It seems to me that there might be many persons in Nova Scotia who carry the patronym of "Mac­ Lean" and have given names of "George" and "Robert". If I am entitled to take cognizance of these facts, then I reach the conclusion that there has been no sufficient identifi­ cation of the person who now appears before me." Counsel for the Crown submits that Jordan, by giving his driver's license which contained l1is name and address, suf­ ficiently identified himself to the officer. In support of this submission he refers to the cases of R. v. Li...vfLC!f (1969) C. R. N. S. 128: R. v. V-<-amortd (1977) 17 N.S.R. 242, and R. v. s;tJrea.tcJ, (1951) 12 C.R.N.S. 193. Crown Counsel did not addre~s the question of idellti­ ", fication of t!le Appellant by the sole wi tness for the Crown, Mac- Donald, during the trial. In R. v. L-<-vei'_if , the li'lte O'IICi1r-I1, C.C ..I., said at page 129: " 'rhere i.s qui te a lurge amount of (luthor-­ ity in tile ci'lses that identity of lli'lille is

, - 12 ­ ptima naue evidence of identity. See the cases ci ted in 'rremeear I s J\nnotated Criminal Code, 6th ed., p.1064 and in 18 Canadian J\b~idgement, pp.3l8 U: M.q., including TltayVt v. Vanc.e. (1847), 3 N.S.R. 269, a decision of our J\ppeal Div­ ision. The weight of this evidence of course .~' depends to a large extent upon the distinct­ iveness of the name; thus in a case before L'evy Co. Ct. J., Re.gina. v. Sm.u:h, the defendant was referred to only as "Mr. Smith" and the learned Judge understandably found this a little vague. I find the names "Clayton Liv­ ely" and Clayton Oslo Lively" somewhat more distinctive than "Mr. Smith" and I have no doubt either in fact or in law that the Clay­ ton Lively who was stopped by Constable Fitz­ simmons on the occasion in question is the Clayton Oslo Lively who was charged in the information herein, and who signed the notice of appeal." Section 735(1)(2) of the Criminal Code, in force at the time of trial reads: 735. ( 1) Where the prosecutor and defendan t appear, the summary conviction court shall proceed to hold the trial. (2) J\deEendant may,appear personally or by counselor agent, but the summary con­ viction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant, and ad journ the tria I to aWed t his appearance pursuant thereto. It would appear from this section that it is not nec­ essary for a defendant to appear personally at his trial in a summary conviction matter. However, ~he record indicates that that the J\ppellant was present at his trial. The record fails to disclose when or by whom the not guilty plea was entered, the only indication being a tick mark ill t~ll~ block "not guilty" on the reverse of the Summary Offence Information. 'l'l1e rC'lIlarks of Crown COlln5~1 t1nd t~h(> '('ri.-ll ,Judge at: tile opening of the trial