S.C.C. 02386 S.C.C. 02387 S.C.C. 02388 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Chipman, JJ.A. BETWEEN: HER MAJESTY THE QUEEN, and DOUGLAS CHARLES ADSHADE, JAMES GELDERT BOYD, JAMES ARTHUR GOODWIN, Respondents Mr. K.W.F. Fiske and Ms. D.C. Smith, for the appellant Mr. R.J. MacDonald, for the respondents Appeal Heard: May 28, 1991 Judgment Delivered: May 28, 1991 BY THE COURT: Appeals allowed, acquittals set aside and convictions restored for violations of s. 172 (now s. 192) of the Motor Vehicle Act, per oral reasons for judgment of Clarke, C.J.N.S., Hallett and Chipman, JJ.A. concurring. The reasons for judgment of the court were delivered orally by CLARKE, C.J.N.S.: The respondents, Messrs. Boyd, Goodwin and Adshade were convicted, after their trials, and fined for operating overweight vehicles on the Bedford Highway in the County of Halifax. The offence with which each was charged was a violation of the Motor Vehicle Act, then s. 172 of R.S.N.S. 1967, c. 191, and now s. 192 of R.S.N.S. 1989, c. 293, and the Regulations made pursuant to the Act. Relevant to the offence are the following sub‑sections of s. 172 (now s. 192): 192 (I) Any peace officer having reason to believe that the weight of vehicle and load is in excess of the maximum permitted by any regulations made under this Act, the Public Highways Act or any Act or regulation is authorized to weigh the vehicle either by means of portable or stationary scales, and may require that the vehicle be driven to the nearest scales, in the event such scales are within distance of kilometres. (3) In lieu of proceeding to such scales, the weight of the load may be determined by portable weighing device provided by the peace officer and it shall be the duty of the driver of the vehicle to facilitate the weighing of the vehicle and the load by any such device. Also relevant to the issues at trial and on appeal is s. 174 (now s. 193) which provides: 193 In prosecution proof of the reading of any scale or weighing device is prima facie evidence of the accuracy of the scale or weighing device and of the reading. At the trial of each respondent, Judge Curran of the Provincial Court, heard the evidence adduced by the Crown. None was given by or on behalf of each of the defendants (now respondents). The evidence before the trial judge was that the truck of each defendant was weighed by peace officer, who first had reason to believe each vehicle was overweight. Mobile scales authorized by the Department of Transportation of the Province of Nova Scotia were used to weigh each vehicle in the manner provided by the Regulations. In each case each vehicle was substantially overweight. Each weighed considerably in excess of the allowable tolerance of 500 kilograms. Counsel for each defendant (now respondent) argued at trial that s. 174 (now s. 193) by providing that in his prosecution proof of the reading of any weighing device is prima facie evidence of the accuracy of the weighing device and of the reading, is contrary to s. II (d) of the Canadian Charter of Rights and Freedoms and is not saved by s. I. Counsel argued the Crown must be required to prove the accuracy of the weighing device: otherwise defendant is by s. II (d) not presumed innocent until proven guilty according to law. Judge Curran considered, but rejected, the Charter arguments. He found on the evidence that the Crown had proved each case by showing that each vehicle was substantially overweight and that the scales were generally accurate. Inspector Sadler testified that the scales were tested on monthly basis by Howe Richardson, an outside firm, described by him as "a national scale company that services and maintains the scales for the Department of Transportation". As to the weights, Mr. Boyd's vehicle was allowed 17,500 kilograms including the tolerance. His vehicle weighed in at 25,600 kilograms. On his first charge, Mr. Adshade's vehicle was allowed 17,500 kilograms including the tolerance. His vehicle weighed in at 23,600 kilograms. On his second charge, the vehicle weighed in at 26,500 kilograms. Mr. Goodwin's vehicle was allowed 18,000 kilograms. It weighed in at 27,900 kilograms. Judge Curran said that in the case of Mr. Boyd, on the evidence that was before me, can see no reason whatever to doubt the general accuracy of the scales that were used in this case. In the case of Mr. Goodwin, in the face of similar evidence from the Inspector, the trial judge said, am satisfied the particulars are made out here and don't think there is any need to go into them at any length. In the case of the first charge again Mr. Adshade, similar evidence having been given by Inspector Richard, the trial judge said, am satisfied, on the strength of the evidence, that it has been shown beyond reasonable doubt that Mr. Adshade, in fact, was operating his vehicle well above the permitted weight and tolerances, at the time in question, on highway. In the case of the second charge against Mr. Adshade, the trial judge said, "I am satisfied that the Crown has proved its case against Mr. Adshade." On appeal to the summary conviction appeal court, Judge Bateman allowed the appeals of the respondents, set aside their convictions and thereby acquitted them. While she concluded that the enabling legislation and the Regulations made pursuant thereto were intra vires, she found that s. 174 (now s. 193) was in violation of the Charter because "it completely relieves the Crown of any requirement whatsoever to prove accuracy" of the scales. Thus, she said, it "goes too far in impairing the presumption of innocence". She further decided that s. 174 (now s. 193), "Is not saved by s. (I) of the Charter insofar as it does not conform with the second criteria set out in Oakes", meaning the Supreme Court of Canada decision in R. v. Oakes (1986), 1986 CanLII 46 (SCC), 24 C.C.C. (3d) 321. The Crown now appeals, alleging that on both of these principal issues the summary conviction appeal court judge erred in law. We have studied the record in detail. We have reweighed and re‑examined the evidence and as well we have considered all of the written and oral arguments advanced by counsel. We have concluded that based on the evidence before the trial judge, there are no Charter issues in these appeals and that the summary conviction appeal court judge, with respect, erred in law in concluding that there were. There was evidence before Judge Curran of the weights of the vehicles, how they were weighed and the procedures followed by the Department of Transportation in determining and maintaining the accuracy of the mobile scales. The Crown witnesses were carefully cross‑examined by counsel of the respondents. Judge Curran made specific findings of fact on both of these issues against the respondents. Although the legal effect of s. 174 (now s. 193) was argued before Judge Curran, it was not necessary for him to either invoke or rely upon s. 174 nor did he in finding each of the respondents guilty of the offence with which each was charged. There may be cases where the defendants are able to advance evidence that causes a trial judge to rely on the prima facie effect of the Crown\'s evidence as stated in s. 174 (now s. 193). These three respondents do not fall in this category. It follows that here consideration of the application of the provisions of the Charter by the summary conviction appeal court judge was unnecessary. Thus there was error in law in allowing the appeals on the basis of Charter violations. Accordingly, we grant leave to appeal and we find, for the reasons that we have given, that the appeals succeed. We order that the acquittal of each respondent be set aside and the conviction of each respondent and the fine imposed upon him by the trial judge be restored. There will be no costs. C.J.N.S. Concurred in: Hallett, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 C.H. 69586 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and JAMES ARTHUR GOODWIN HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert MacCarroll, Esq., for the Crown/Respondent Ronald MacDonald, Esq., for the Applicant CASE ON APPEAL CANADA PROVINCE OF NOVA SCOTIA 1990 C.H.70076 C.H.69585 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and DOUGLAS CHARLES ADSHADE HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert P. MacCarroll, Esq., for the Crown/Respondent Ronald J. MacDonald, Esq., for the Applicant CASE ON APPEAL CANADA PROVINCE OF NOVA SCOTIA 1990 C.H. 69587 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and JAMES GELDERT BOYD Appellant HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert P. McCarroll, Esq., for the Crown/Respondent Ronald J. MacDonald, Esq., for the Appellant CASE ON APPEAL S.C.C. 02386/87/88 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN, and DOUGLAS CHARLES ADSHADE, JAMES GELDERT BOYD, and JAMES ARTHUR GOODWIN, Respondents REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.
The Crown appealed a decision which overturned the respondent's convictions on charges of operating overweight vehicles contrary to s.172 of the Motor Vehicle Act. The Court had overturned the convictions on the ground that the reverse onus provision of s.172, respecting the accuracy of the scale, violated s. 11(d) of the Charter. Allowing the appeal and restoring the convictions, that the trial judge did not rely on the prima facie effect of the Crown's evidence, but rather had ample evidence concerning the accuracy of the scales upon which to rely.