Cite as: R. v. Musolin, 1984 NSCO 13 C A N A D A PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX ' To wit: C.H. 44626 I N T H E C 0 U N T Y C 0 U R T OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN, on the information of William Beamish, Constable, Appellant - and -DARRELL K. MUSOLINO, Respondent Ms. M. E. Donovan, for the appellant. Simon L. Gaum, Esq., for the respondent. 1984, April 12, O Hearn, J.C.C.:- This is a prosecution appeal against a dismissal of a charge under Motor Vehicle Act s.87(2), which reads as follows ' 87 (2) The driver of a vehicle involved in an accident resulting in injury or death to any person or damage to property shall also give his name, address and the registration number of his vehicle and exhibit his driver's license to the person struck or to the driver or occupants of any vehicle collided with or to a witness and shall render to any person injured in the accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person. At the conclusion of the prosecution's case defence counsel moved while reserving the right to call evidence that there was absolutely no case to answer, and the learned trial judge held 'There is absolutely no evidence that the accused was the driver' and dismissed the charge. The evidence indicated that the complainant, Mr. Cant, while driving in the left lane of the outgoing lanes on Bayers Road was
- 2 struck in the rear by a brown four-wheel drive truck which was ' passing on the right lane. Mr. Cant's car was driven into the rear of a car driven by Mr. Macinnis. Macinnis saw the truck go by, driven by a man with a beard, but paid no particular attention to it because he thought that the accident was caused by Cant. Cant was able to make an immediate note of the license number of the truck and this corresponded to a truck owned by one Paul Musolino. The truck owned by Musolino was described by Constable William Beamish as corresponding in description to that observed by Macinnis and Cant, and he actually took pictures of the vehicle. Constable Beamish, who had fifteen years experience in body work on motor vehicles, said that in his opinion the front bumper had been recently replaced and repainted and that this had been done within a couple of days of when he saw it because there were no marks on the fresh paint. In fact, he gave considerable detail to indicate that the changeover was very recent. Paul Musolino testified that the truck was actually being used extensively and, by inference, exclusively 1 by his nephew, the accused. Ms. Donovan, in her submission on behalf of the appellant, laid considerable weight on the definition of 'driver' in Motor Vehicle Act s.l(k), which reads (k) "driver" means a person driving or in charge of a vehicle and includes the operator of a motor vehicle; She presented considerable research to show that the expression 'in charge of a vehicle' is unique in Canada, and argued that it meant that a person could be in charge of a vehicle and, hence, a driver in that sense although not present. I held and I hold that the term 'driver' as used in s.87(2) while it includes a person 'in charge of' the vehicle must mean someone who is actually present so as to be able to perform the
' duties required under that section, and must be so construed in that particular provision at least. in other parts of the Act. It is obviously the context that tells what is meant by 'driver' in s.87(2). On the other hand, I hold that the learned trial judge was in error in saying that there was absolutely no evidence that the accused was the driver. There was a circumstantial case, the weight of which could not be in issue at that point. tion that somebody else was driving would require at least some evidence to support it, in view of the fact that the defendant was normally in charge of the vehicle and the evidence indicating an attempt to cover up evidence of the previous condition of the front bumper. Since the question of reasonable doubt did not arise at that point the trial judge, I believe, was not correct in holding that there was no evidence fit to submit to a jury. nothing in the record to suggest whether or not, of course, the ' accused had a beard on this occasion. The appeal must be allowed with the usual order as to costs, and a new trial will be directed before another magistrate. - 3 - It may have a wider meaning Any suggesThere is ; '._ x,,: (. -.:Ir,·, i , ,- ~- ,_ - - -·~---I.--·- ; / A Judge of the County Court of District Number One
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.