R. v. Joudrey, (1992) 113 N.S.R.(2d) 117 (ProvCt)

• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: December 13, 1991
• Jurisdiction: Nova Scotia
• Citations: (1992), 113 N.S.R.(2d) 117 (ProvCt)

R. v. Joudrey (1992), 113 N.S.R.(2d) 117 (ProvCt);

  309 A.P.R. 117

MLB headnote and full text

Her Majesty the Queen v. Lloyd Mervin Joudrey

(S.O.T. 1289084)

Indexed As: R. v. Joudrey

Nova Scotia Provincial Court

Batiot, J.P.C.

February 18, 1992.

Summary:

An accused was charged with driving in excess of 100 km/h, contrary to s. 106(2) of the Motor Vehicle Act.

The Nova Scotia Provincial Court found the accused not guilty.

Criminal Law - Topic 4730

Procedure - Information or indictment, charge or count, indictable offences - Form and content - General - Section 841(3) of the Criminal Code provided that all prepared forms "... shall be printed in both official languages" - Section 8 of the Summary Proceedings Act provided an alternative procedure for laying an infor­mation - An accused was charged with driving in excess of 100 km/h - As the information was only in English, the accused submitted that the information was invalid - The Nova Scotia Provincial Court held that s. 841(3) did not apply and that the information was valid.

Criminal Law - Topic 7285

Summary conviction proceedings - Informations - Form and content, includ­ing sufficiency of charge - [See Criminal Law - Topic 4730 ].

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that a wit­ness is an expert - An accused was charged with speeding - During the trial the issue arose as to whether a police officer was qualified to give an opinion on whether the radar instrument was operating properly - The Nova Scotia Provincial Court concluded that the officer was qualified stating that he "... need not be qualified as an expert. The court only needs to be satisfied that he or she has received adequate training, can operate the instrument competently and is satisfied the readings obtained are an accurate reflection of the facts" - See paragraph 21.

Evidence - Topic 7014

Opinion evidence - Expert evidence - Textbooks and treatises - During a cross- examination, a solicitor referred a qualified radar operator to passages from a text - The Nova Scotia Provincial Court stated that "[t]hose which he admits as authority, whether he agrees with them or not, may be presumed to be proven ... those which he does not admit or deny are not evidence unless judicial notice may be made of them" - See paragraph 23.

Evidence - Topic 7014

Opinion evidence - Expert evidence - Textbooks and treatises - During a cross- examination, a solicitor referred a qualified radar operator to passages from a text - The issue arose as to whether the court could take judicial notice of the passages - The Nova Scotia Provincial Court stated that "[w]hen matters are relevant to a particular issue as here, the possibilities of inaccuracy in the radar readings, and there has been a full disclosure at trial, as in this case, so that the information, coming apparently from an accurate source, is not received 'behind the back of counsel' ..., it seems a judge may take judicial notice of them" - See paragraph 37.

Motor Vehicles - Topic 2686

Regulation of vehicles and traffic - Rate of speed - Evidence and proof - By radar equipment - A driver was charged with speeding - The Nova Scotia Provincial Court acquitted the accused after taking judicial notice of the following: "1) A radar instrument reading is prima facie evidence of speed; 2) it is not however infallible; 3) exterior factors, be they atmospheric or environmental, such as clouds, snow, rain, fog, wind or glass may affect the accuracy of its reading" - See paragraph 38.

Trials - Topic 1083

Summary convictions - Informations - Form - [See Criminal Law - Topic 4730 ].

Cases Noticed:

R. v. Hallett (1988), 86 N.S.R.(2d) 18; 218 A.P.R. 18, refd to. [para. 20].

R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), appld. [para. 23].

R. v. Walters (1975), 11 N.S.R.(2d) 443; 5 A.P.R. 443 (C.A.), refd to. [para. 28].

Ostrowski v. R. (1958), 122 C.C.C. 196, consd. [para. 30].

R. v. Waschuck (1971), 1 C.C.C.(2d) 463 (Sask. Q.B.), consd. [para. 30].

R. v. Chow (1991), 118 A.R. 64; 65 C.C.C.(3d) 162 (Q.B.), revd. (1991), 120 A.R. 124; 68 C.C.C.(3d) 119 (C.A.), refd to. [para. 34].

R. v. Lloyd (1963), 6 C.L.Q. 387, consd. [para. 35].

R. v. Hollahan, [1970] 1 C.C.C. 373 (N.S.C.C.), refd to. [para. 37].

R. v. Andrews (1983), 59 N.S.R.(2d) 149; 125 A.P.R. 149; 8 C.C.C.(3d) 519 (C.A.), refd to. [para. 45].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b) [para. 12]; sect. 841 [para. 14]; sect. 841(3) [paras. 12, 14, 16].

Official Languages Act, R.S.C. 1985, c. O-3.01, sect. 3(2), sect. 19 [para. 17].

Summary Proceedings Act, R.S.N.S. 1989, c. C-450, sect. 7 [para. 12, 18]; sect. 8 [para. 15].

Authors and Works Noticed:

Horsley and Foster, Manual of Motor Vehicle Law (2nd Ed.) [para. 20].

MacWilliams, Canadian Criminal Evidence (3rd Ed. 1991), pp. 24-5 [para. 31]; 24-6, 24-10 [para. 32].

Manraj and Haines, The Law of Speeding and Radar (1st Ed. 1985), p. 165 [para. 34].

Manraj and Haines, The Law of Speeding and Radar (2nd Ed. 1991) [paras. 8, 33].

Counsel:

Anthony W. Brown, for the Crown;

David F. Walker, Q.C., for the defence.

This case was heard on December 13, 1991, at Bridgewater, Nova Scotia, before Batiot, J.P.C., of the Nova Scotia Provincial Court, who delivered the following judgment on February 18, 1992.