R. v. Haylock (C.D.), (2009) 283 N.S.R.(2d) 47 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 18, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 283 N.S.R.(2d) 47 (SC);2009 NSSC 247

R. v. Haylock (C.D.) (2009), 283 N.S.R.(2d) 47 (SC);

    900 A.P.R. 47

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.013

Catherine D. Haylock (appellant) v. Her Majesty The Queen (respondent)

(Cr. Am. No. 286455; 286454; 2009 NSSC 247)

Indexed As: R. v. Haylock (C.D.)

Nova Scotia Supreme Court

LeBlanc, J.

August 18, 2009.

Summary:

Haylock appealed her convictions and sentence on two charges; one under s. 17(c) of the Commercial Drivers' Hours of Work Regulations (failing to keep a log book); the other under s. 83(2) of the Motor Vehicle Act (failing to obey a traffic sign). She was fined $157.50 and $387.50 on the charges, respectively.

The Nova Scotia Supreme Court overturned the log book conviction. The trial judge's interpretation of the Regulations was not consistent with their purpose. The court affirmed the charge of failing to obey a traffic sign. A different result would not have occurred if the trials had been held separately. Nor was the accused denied an opportunity to advance officially induced error.

Editor's Note: The appellant's fresh evidence application was dismissed: see (2008), 269 N.S.R.(2d) 31; 860 A.P.R. 31.

Criminal Law - Topic 4479

Procedure - Trial - Separate trials for each indictment or information - The accused, who was self-represented at arraignment and at trial, appealed her convictions on two charges; one under s. 17(c) of the Commercial Drivers' Hours of Work Regulations (logbook charge); the other under s. 83(2) of the Motor Vehicle Act (restricted highway charge) - She argued the trial judge should have held separate trials - The Crown argued that the accused consented to the joinder - The Nova Scotia Supreme Court held that the trial judge was correct in holding one trial - The infractions were dissimilar and allegedly occurred on different dates - The only commonality was that on both occasions the accused was stopped on the same highway with a load of Christmas trees destined for Massachusetts - Different inspectors testified in respect of each offence - Further, the two offences carried different legal consequences - There was little, if any, actual prejudice from the joining of the counts - There was no danger of inconsistent verdicts - The trial judge had sufficient evidence from the Crown witnesses to make out each charge - See paragraphs 36 to 48.

Criminal Law - Topic 4479

Procedure - Trial - Separate trials for each indictment or information - The Nova Scotia Supreme Court stated that "It is evident ... that a judge may not allow joinder if it is against the interests of justice", whether the accused consented or not - The court set out the various factors to be considered in deciding whether to conduct a joint trial, including the factual and legal nexus between the counts; general prejudice to the accused; the undue complexity of the evidence; whether the accused wished to testify on some counts, but not on others; the possibility of inconsistent verdicts; and the desire to avoid a multiplicity of proceedings - The weight to be attached to each factor depended on the circumstances - A possible drawback of joining informations and conducting a single trial was that it was difficult to determine whether an accused would testify on both informations - "Often this decision is made after the Crown evidence. The decision to have one trial, rather than separate trials, precludes the [accused] from only testifying in one and not the other" - See paragraphs 37 to 42, 45.

Criminal Law - Topic 5471

Evidence and witnesses - Joint or separate trials - General - [See second Criminal Law - Topic 4479 ].

Criminal Law - Topic 7660

Summary conviction proceedings - Appeals - Grounds - Failing to consider whether defence evidence might reasonably be true - The accused was stopped while driving a vehicle over 3000 kg. on a restricted highway, which led to a charge under s. 83(2) of the Motor Vehicle Act (disobeying the instructions of an official traffic sign "unless otherwise directed by a peace officer") - The accused had received a warning with respect to the offence one week before she was charged - At trial, she stated that she was on that highway for business reasons unrelated to the load she was carrying, and claimed that this was permissible as previous charges against her were not pursued, and in light of discussions she had with the Department of Transportation - The trial judge prevented her from raising officially induced error, and found her guilty - The Nova Scotia Supreme Court affirmed the conviction - The warning "significantly" affected the merits of the argument advanced by the accused - Even if she had received relevant information from officials of the Department in the course of previous court appearances, the warning would have made it unreasonable for her to rely on such advice or to offer it in defence of the charge - See paragraphs 49 to 54.

Motor Vehicles - Topic 55

General and definitions - Definitions - Commercial vehicle - [See Statutes - Topic 501 ].

Motor Vehicles - Topic 2007

Regulation of vehicles and traffic - General - Commercial vehicles - Daily logs - [See Statutes - Topic 501 ].

Motor Vehicles - Topic 3101

Regulation of vehicles and traffic - Observance of signs and traffic control signals - General - [See Criminal Law - Topic 7660 ].

Statutes - Topic 501

Interpretation - Purpose of legislation - Duty to promote object of statute - The accused appealed her conviction under s. 17(c) of the Commercial Vehicle Drivers' Hours of Work Regulations, for failing to keep a daily log book - Section 19 of the Regulations exempted a driver from maintaining the log while driving a commercial vehicle less than a radius of 160 km from the driver's home terminal - The defendant's position was that because she was driving less than 160 km she was within the exception - The commercial vehicle itself was destined for a distance greater than 160 km - The trial judge rejected the defence - The Nova Scotia Supreme Court overturned the conviction - The trial judge's interpretation of s. 19 was not consistent with the purpose of the Regulations or with the wording of the Regulations in their entirety - Ambiguity arose from the definitions of "commercial vehicle" and "driver" in the context of Regulations that were intended to regulate commercial vehicle drivers' hours of work - Also, the title of the Regulations indicated that the intention was to regulate the hours drivers worked, not the distance the load travelled - The regulation-making power was not intended to permit the Governor in Council to create penal provisions that were inconsistent with the objectives of the Regulations - See paragraphs 15 to 35.

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See Statutes - Topic 501 ].

Statutes - Topic 1415

Interpretation - Construction where meaning is not plain - Ambiguity - Choice of meaning to attain purpose of Act - [See Statutes - Topic 501 ].

Statutes - Topic 1846

Interpretation - Intrinsic aids - Titles, headings and section numbers - Titles - [See Statutes - Topic 501 ].

Statutes - Topic 5352

Operation and effect - Delegated legislation - Regulations - Scope of regulation-making power - [See Statutes - Topic 501 ].

Trials - Topic 1107

Summary convictions - Defences - Officially induced error of law - [See Criminal Law - Topic 7660 ].

Cases Noticed:

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 14].

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 CarswellNS 253; 2009 NSCA 44, refd to. [para. 24].

R. v. Best Sleep Centre Inc. (2002), 169 Man.R.(2d) 81 (Prov. Ct.), refd to. [para. 27].

Sobeys Group Inc. et al. v. Nova Scotia (Attorney General) et al. (2006), 248 N.S.R.(2d) 149; 789 A.P.R. 149; 2006 NSSC 290, refd to. [para. 28].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 29].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86, refd to. [para. 32].

R. v. Nova Scotia Power Inc. (1999), 173 N.S.R.(2d) 179; 527 A.P.R. 179 (S.C.), refd to. [para. 33].

R. v. Clunas, [1992] 1 S.C.R. 595; 134 N.R. 268; 52 O.A.C. 130, refd to. [para. 37].

R. v. Lalo (C.) (2002), 215 N.S.R.(2d) 130; 675 A.P.R. 130; 2002 CarswellNS 594; 2003 NSSC 154, refd to. [para. 41].

Lévis (City) v. Tétreault (2006), 346 N.R. 331; 2006 CarswellQue 2911; 2006 SCC 12, refd to. [para. 49].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1; 1995 CarswellOnt 985, refd to. [para. 49].

Statutes Noticed:

Commercial Vehicle Drivers' Hours of Work Regulations - see Motor Vehicle Act Regulations (N.S.).

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 83(2) [para. 5]; sect. 303(1), sect. 304(1) [para. 9].

Motor Vehicle Act Regulations (N.S.), Commercial Vehicle Drivers' Hours of Work Regulations, Reg. 102/99, sect. 17(c) [para. 4]; sect. 19 [para. 13].

Counsel:

Kelly Mittlestadt, for the appellant;

Michelle D. James, for the respondent.

This appeal was heard on February 18, 2009, in Amherst, Nova Scotia, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision dated August 18, 2009.