Certificate No ONTARIO COURT (PROVINCIAL DIVISION) - versus - PAULO RAPOSO TRANSCRIPT OF PROCEEDINGS

Transcription

1 Certfcate No ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN - versus - PAULO RAPOSO TRANSCRIPT OF PROCEEDINGS Heard before The Honourable Mr. Justce D. Cooper at Hamlton, Ontaro on Aprl 5, 05 Courtroom 8 APPEARANCES M. Keth I. Fourner Provncal Prosecutor Agent on Behalf of P. Raposo

2 1 Submssons of Counsel MR. KEITH: The last matter Mr. Fourner has s Paulo Raposo. MR. FOURNIER: Mr. Raposo1s approachng you, Your Honour. For the record, t s Fourner, frst ntal I, actng as agent for Mr. Raposo. MR. KEITH: Perhaps 1 can just assst, Your Honour, before Mr. Fourner starts? The charge s... HIS HONOUR: Yes, 1 know. MR. KEITH: bus,... falng to stop for a school HIS HONOUR: Rght. MR. KEITH: And the word, 'school bus' s never gven n evdence. And the word - under the defnton of school bus n The Hghway Traffc Act, the defnton ncludes that that vehcle must have the words 'school bus' on t, wrtten on t, prnted on t, or sgned on t, and that was never gven n evdence. The offcer was asked, but unable to do t. I've spoken wth Mr. Fourner about t. It's my poston that everyone else knew t was a school bus and the justce of the peace knew t was a school bus, and the offcer knew t was a schoo] bus. However, t's such a serous charge. I mean, as far as The Hghway Traffc Act goes, the effect of a convcton for dsobeyng a school bus s exactly the same as careless drvng. HIS HONOUR: Mm-hmm, I know. MR. KEITH: The penaltes are the same. The nsurance consequences are just dramatc, so I thnk I've spoken for both of us. If you're

3 2 Submssons of Counsel wllng to address just that fact: should the offcer have gven n evdence that he observed the word, 'school bus'. And f he should have, then obvously you'11 allow the appeal. I'm wllng to - we got t narrowed down to that one tem, Mr. Fourner? MR. FOURNIER: Yes. MR. KEITH: All rght. So, t wasn't gven n evdence and t's requred under The Hghway Traffc Act. My poston s stll though from the descrpton, t's a school bus. It's yellow. It's got a stop sgn out... MR. FOURNIER: Your Honour? MR. KEITH:... the sde, t's got flashng... MR. FOURNIER: To agree wth my frend... MR. KEITH: lghts... MR. FOURNIER: MR. KEITH:... I called t a school bus. And there's no other vehcles that are smlar to t on the road that have a stop arm that come out the sde of t. There's no other vehcle n the provnce that has a stop arm that comes out the sde of t, to my knowledge. MR. FOURNIER: I've never seen one. MR. KEITH: The only vehcle that has a stop arm s a school bus. However, I'm n your hands. MR. FOURNIER: Your Honour, my frend spoke well for both of us. It s just straght a techncal argument and an appeal. When you open up The Hghway Traffc Act, and you go to s. 175 and t says - defnes a school bus. I'm not sure what verson you have, but t's s. 175(1). Sorry,

4 I 3 Submssons of Counsel I'll gve you the page number. I just - my Ontaro Hghway Traffc Act's dated. MR. KEITH: I have the latest one, Your Honour. HIS HONOUR: All rght. MR. FOURNIER: In s. 175(1), n my HTA, the last tem s the defnton of what a school bus s. And the Offcer Stewart, very nce guy, he descrbed a whole bunch of thngs: red flashng lghts, stop arm. But you know somethng? Nether one of those are n the defnton of what a school bus s. The only thng the offcer sad, and sad that was rght n the descrpton of a school bus, was chrome yellow. There's more that's requred, just by the defnton n The Hghway Traffc Act, to say that ths s a school bus. Nowhere n there does t say that t requres red ntermttent lghts. We've just grown accustomed to them. Nor does t requre or says t's got the stop arm that stcks out. We've grown accustomed to them. It's a straght techncal matter. The offcer was asked drectly on page of the transcrpt, 'And dd t have any markngs there that would suggest t was a school bus?' 'I dd not make a notaton of that. It was chrome yellow by The Hghway Traffc Act... ' HIS HONOUR: Yes? MR. FOURNIER: '... as well as had the lghts and a stop arm whch was extended wth a stop sgn, and the word 'stop' wrtten on t.'

5 I Submssons of Counsel The only thng there that denotes t as a school bus s the chrome yellow. But when you look at the defnton, t s panted chrome yellow, and - whch means t's a requrement. It's not, you know, 'or' or anythng lke that. It says, 'and'. And dsplays the sgn 'school bus1 on the front and the rear, and the words, 'Do not pass when lghts are flashng.' None of that evdence s before the court. You have a yellow large vehcle and t had red flashng lghts and a stop arm. And even when I was defendng Mr. Raposo, T called t a school bus. Ffteen years of pushng around a polce car, I called t a school bus. But when the offcer's asked rght out, 'Don't know'. If you're gong to wrte a school bus tcket, especally one that s ths serous of an offence and has the ramfcatons lke my frend was sayng, you got to know t had the word, 'school bus' on t. It's a requrement. HIS HONOUR: Intrgung. MR. FOURNIER: And even Your Worshp Devellano agrees wth me that he ddn't say the word, 'school bus'. In her summatons, and I don't know f I'm correct wth ths part, Mr. Keth wll correct me. In the deal of a school bus, droppng off and pckng up, t's ether chldren or challenged people. When the offcer was asked f there was any of these around, hs answer was, 'No.' He ddn1t see any.

6 5 Submssons of Counsel So there's a few thngs n there, and I'll pont that out to you so t's rot lke I'm just pullng somethng out of a hat. Page 17, bottom, lne 29, I beleve t s. 'Not f I'm unable to' - we got nto a queston because what happened s the offcer also went to the red flashng lghts and the stop arm. He has no authorty to do so, but we got nto that queston, so I asked hm f he saw any chldren. 'I was able to see that there were no people that actually were - there were no kds that were actually vsble to me the entre tme, whch was the frst area of concern.' Because 1 was - I told hm - I was beng a lttle gnorant. Because I sad, 'Where's your authorty to go through the school bus? You don't have t.' I was a polce offcer. You don't have authorty to go through a school bus. And I apologzed to hm on the stand, because I told hm, 'I'm gong to be gnorant', and that was me beng gnorant, and then I backed off. I just asked hm, 'Where's your authorty?' I I But that's not the crux of t. The crux s smply t's a techncal one. When the offcer's asked rght out the markngs on ths vehcle that denote t to be a school bus, he made no notaton of any. He doesn't recall there beng any. HIS HONOUR: Dd you make ths same argument before the learned justce of the peace?

7 6 Submssons of Counsel MR. FOURNIER: Yes. HIS HONOUR: And she took the poston that f t looks lke a duck and quacks lke a duck, t must be a duck? MR. FOURNIER: Yes. But I understand, because I, lke I sad, even I called t a school bus. Accordng to the HTA, the offcer only ht chrome yellow, accordng to the defnton of what a school bus s, the only thng he touched was chrome yellow. Red flashng lghts aren't requred, stop arm's not requred, but the words, 'school bus' are, and 'Do not pass when lghts are flashng', that's requred. And t's an 'and1, so t requres both. And that's - t's just a techncal argument just on that purpose, and that alone. HIS HONOUR: Any case law ether way on ths? MR. FOURNIER: Just how can t? No. Guess that's what we're here for. I'm gong to let you be the lead. I apologze now. HIS HONOUR: I'm known for common sense, not wsdom. MR. FOURNIER: Well, f common sense says t's a school bus, I'm lookng for wsdom to say that's t's not because t's not carred out as accordng to what the HTA requres t to be. HIS HONOUR: Okay. Anythng else from the prosecuton? MR. KEITH: No, Your Honour.

8 REASONS FOR JUDGMENT COOPER, J. (O. C. J.): Well, T am not normally an overly techncal person. I thnk t s pretty obvous that ths was a school bus, and as Mr. Fourner freely admts, he referred to one. But the defnton of school bus s conjunctve. Itss-s (a) s panted chrome yellow, and s-s (b) dsplays n the front and rear the words, 'school bus' and on the rear, there are the words, 'Do not pass when sgnals flashng.' Provncal statutes, n my vew, are usually extremely techncal where the defendants are concerned. I do not see why t should not cut both ways. And the offcer freely admts, n answer to Mr. Fournerfs questons, the flashng red lghts were there, the wg-wag arm out the sde was there, and cars were stopped. But he does not defne t as requred. Ths s a rather unusual case. I do not thnk t s hghly lkely to recur agan, even n the realm of provncal offences. I thnk I wll gve the defence the beneft of the doubt on ths. Defendants, as 1 say, who are charged under extremely scrupulous provncal statues, probably far more exact than the crmnal law n many ways, are put to severe onuses. And as 1

9 Reasons for Judgment say, I do not see any good reason why ths should not go the other way. It was an obvous oversght, but t s a very clear defnton whch has not been met. So the appeal w11 be allowed, the convcton quashed. And f the fne has been pad, t wll be returned. But n the future, Mr. Raposo, pay more attenton to what you are dong. MR. RAPOSO: Thank you very much, Your Honour. MR. KEITH: Thank you, Your Honour. MR. FOURNIER: Thank you, Your Honour.

10 9 Certfcaton I, Kmberly Straughan, certfy that ths document s a true and accurate transcrpt of the recordng of R.v. Paulo Raposo n the Ontaro Court of Justce held at 45 Man Street East, Hamlton ON, taken from Recordngs No(s). 8-44/05, whch has been certfed n Form 1. date Sgnature of/lauthorzed Person