R. v. Hart

R. v. Hart Court Supreme Court Date 2007-06-04 Citation 2007 NSSC 161 Docket CRAM 275236 Judge/Registrar/Adjudicator Goodfellow, Walter R. E. (Honourable Justice) (SC) (SC) Document Type Decision Relations Library Sheet - R. v. Hart - 2007 NSSC 161 - 2007-06-04 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hart, 2007 NSSC 161 Date: 20070604 Docket: CRAM No. 275236 Registry: Amherst Between: Her Majesty the Queen, on the Summary Offence Ticket of Lawrence Stevens, a member of the Nova Scotia Department of Transportation Respondent v. Jason Wilfred Hart Appellant Judge: The Honourable Justice Walter R.E. Goodfellow Heard: May 23, 2007, in Amherst, Nova Scotia Written Decision: June 4, 2007 Counsel: Bruce C. Baxter, for the Respondent Jim O’Neil, for the Appellant Goodfellow, J.: Charge - Conviction Jason Wilfred Hart was charged that he, on the 18th day of September 2006 at or near highway 104, Amherst, County of Cumberland, Nova Scotia did unlawfully commit the offence of commercial driver failing to obey traffic sign or signal to report to scale, contrary to section 83(2) of the Motor Vehicle Act. [1] The charge came to court in Amherst on the 21st of November, 2006 and the trial judge found Mr. Hart guilty. Her oral decision was reduced to writing and provided the 27th of December 2006. [2] The conviction resulted in a fine of three hundred and eighty-seven dollars and fifty cents ($387.50). Notice of Appeal [3] Jason Hart through his solicitor, Jim O’Neil, filed a Notice of Appeal the 14th of December, 2006. The Notice of Appeal set out grounds of appeal which were further defined in the factum of the appellant as follows: First Ground - The learned trial judge erred in law in finding that there has been a violation of the section 83(2) of the Motor Vehicle Act. Second Ground - The learned trial judge erred in law in failing to apply or by improperly applying the defence of officially induced error. Third Ground - The learned trial judge erred in law by incorrectly applying the defence of due diligence. LAW [4] By operation of s.7 of the Summary Proceedings Act, R.S.N.S. 1989, c.450, all the Criminal Code provisions relating to summary appeals apply to provincial acts. [5] Paragraph (a) of the subsection 686(1) of the Criminal Code reads as follows: On the hearing of an appeal against conviction ..., the Court of Appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice. [6] The test on appeal is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. It is not the function of an appellant court to re-try or second guess the trial judge who has had the benefit of observing and hearing all of the witnesses. [7] The first ground - The learned trial judge erred in law in finding that there had been a violation of the section 83(2) of the Motor Vehicle Act. The trial judge determined it was illogical to permit Mr. Hart to interpret the sign as not applying to him, particularly where the evidence, including his, showed an appreciation that there are rules of the road and protections in place designed to look after the highways and designed to have people carry loads of certain weights. [8] The error committed by the trial judge is in determining that the sign had something to do with actual weight. The Crown provided an exhibit of several pages showing the official highway signs. A review of those signs confirms my determination that very clearly the offence for which Mr. Hart was convicted was an offence of failing to report. [9] Attached as Appendix A is one page of the official highway signs provided by the Crown and you will readily note that all of the signs referring to vehicles have specific actual weight restrictions except the sign for which Mr. Hart was found guilty. The signs that limit vehicles over 12 tonnes etc. deal with prohibitions of actual weight. The sign in this appeal dealt not with a limitation on weight but a reporting requirement for vehicles that have over 3000 kg registered weight. [10] The registered weight is a classification determined by the Province of Nova Scotia and, in this case, Mr. Hart’s one-half tonne truck was clearly a truck with a registered weight of 2800 kilograms. The Crown must prove the essential ingredient of a breach of this sign by failure to report and one cannot fail to report if there is no obligation to report. Clearly Mr. Hart could have been charged for being overweight. That is not the offence created by the sign he was charged disobeying. I have no doubt that most, if not all, trucks larger than a half-ton truck are designated by the Province of Nova Scotia and classified with a registered weight over 3000 kilograms, however, in classifying and designating Mr. Hart’s truck as one with a registered weight of 2800 kilograms, he was under no duty to report. There being no such duty on him, the conviction cannot stand. It constitutes an error in law on the part of the trial judge. [11] The second ground - The learned trial judge erred in law in failing to apply or by improperly applying the defense of officially induced error. The offence of officially induced error must be established on a balance of probabilities by the accused. I have no quarrel with the assessment and conclusion arrived at by the trial judge in this regard. The case law is clear. See O’Hearn, Co. Ct. J, in R. v. Flemming, [1980] N.S.J. No. 129 (N.S. Co. Ct.) and, also, R. v. Provincial Foods Inc., [1992] N.S.J. No. 38 (N.S. Co. Ct.) per Palmeter C.J. Co. Ct. [12] Clearly, in this case, in her decision the trial judge had reservations that justified concluding the defence had not been made out. [13] The third ground - The learned trial judge erred in law by incorrectly applying the defense of due diligence. There is no need to address the third ground of appeal. RESULT [14] The appeal must be granted and in the circumstances indicates a fit and proper disposition is to substitute an acquittal for the erroneous verdict of guilty. Appeal allowed. J.