Supreme Court

IN THE SUPREME COURT OF THE NORTPMEST TERRITORIES BETWEEN; HER MAJESTY THE QUEEN, upon the information of Steven Martens, sworn the 9th day of November, A.D. 19 76, the Informant, Respondent - and -"̂»«cfl MILO ROSENBRIER, Defendant

Appellant

Appeal from Justice of the Peace G. R. Carter Appeal heard January 25, 1977 at Yellowknife, N. W. T. Judgment of the Court filed February 22, 19 77. Appeal allowed

Reasons for Judgment of: The Honourable Mr. Justice C. F. Tallis Counsel on the HearIna: Mr. B. Fontaine, for the Crown (Respondent) Mr. R. S. Kimmerly for the Appellant ^

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: HER MAJESTY THE QUEEN, upon the information of Steven Martens, A.D. 1976, the Informant, Respondent , - and -MILO ROSENBRIER, Defendant j Appellant Coxmsel on the Hearing: Mr. B. Fontaine, for the Crown (Respondent) Mr. R. S. Kimjnerly for the Appellant

REASONS FOR JUDGMENT OF THE HONOURABLE • MR. JUSTICE C F. TALLIS The accused, Milo Rosenbrier, was convicted before Justice of the Peace G. R. Carter on a Charge under Section 12 4 of the Vehicles Ordinance which read as follows: "that Milo Rosenbrier on or about the 5th day of November, A.D. 19 76 at Yellowknife in the North­west Territories being the driver of a vehicle did unlawfully over­take and pass upon the right of another vehicle, contrary to section 124(1} of the VehiJl.ces Ordinance." This m.atter cam.e before re by v/ay of tr.'al de novo and I reserved judgment to fully consider the a3-o.::ents that

- 2 ­were advanced before me. Section 124(1) of the Vehicles Ordinance provides as follows: \ X ^ "124. (1) No driver shall overtake and pass upon the right of another vehicle, except , (a) when the vehicle overtaken is making a left turn or its driver has signalled his Intention to make a left turn; (b) upon a laned roadway where there is more than one un­obstructed lane availalbe to traffic moving in the direction of travel of the vehicle; or (c) upon a one-way roadway where where the roadway is of suf­ficient width for two or more • lines of moving vehicles and is free from obstructions." Learned Counsel for the Appellant took the position that the roadway in question was a laned roadway where there is more than one unobstructed lane available to traffic moving in the direction of travel of the vehicle. On the evidence I re­ject this contention because on the date of the alleged offence Franklin Avenue was not a laned roadway v;here there was more than one unobstructed lane available .to traffic moving in the direction of the Appellant's vehicle. I turn now to a consideration of the other point taken on this ap_jeal. Learned Counsel ton ahe P.ppellant contended

- 3 ­that the Appellant came within the exceptions contained in Section 124(1) (a) or, alternatively, had at the very least raised a reasonable doubt. The law is very clear that this offence must be proved beyond a reasonable doubt. The Ordinance does not contain any reverse onus provision that is applicable to a Charge under this section. , • , In this particular case Constable Martens gave evidence for the prosecution and his evidence was not shaken in cross-examination. His evidence established a prima facie case with respect to an offence under Section 12 4(1) of the Vehicles Ordinance. On the other hand the Appellant gave evidence and in­dicated under oath that he was overtaking and passing to the right of other vehicles because one of the vehicles overtaken was stopped with a view to making a left turn. The Appellant's evidence was not in any way shaken on cross-examination. Under the circumstances I am in a position where I have a reasonable doubt as to the guilt of the Appellant and under the circumstances I must give the benefit cf that doubt to the Appellant. I accordingly allow the appeal and acquit the Appellant on the Charge under Section 1?4(1) of the Vehicles Ordinance.

- 4 -There will be no order as to costs and if the Appellant has already paid the fine imposed in the Court below I direct that the same be returned to him by the Clerk of the Court. -̂ ^ Dated at Yellowknife Northwest Territories this •̂̂•'•'̂ day of February, 1977.

C F. Tallis, J.S.C. ^ ^^^