R. v. Thorburn Date:, 2012 BCPC 323

Citation: R. v. Thorburn Date: 2012 BCPC 0323 File No: 56404-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VIRGINIA LYNN THORBURN EXCERPTS FROM PROCEEDINGS RULING OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: R. Bellis Counsel for the Defendant: B.Hughes Place of Hearing: North Vancouver , B.C. Date of Judgment: January 16, 2012

[1] THE COURT: These are my reasons on a no evidence motion brought by Virginia Lynn Thorburn at the close of the Crown'scase. [2] The charges are impaired driving and refusal, and arise March 30th, 2011. [3] The Crown called one witness, being Constable Ivanova, who was the investigating officer. Constable Ivanova said that shehad been an RCMP member for three and a half years and had been in the North Van Detachment since April of 2010. She was employed and on duty in uniform in a marked car on March 30th, 2011.

There was no other reference to the events in question havingoccurred in North Vancouver as alleged in the Information. [4] Constable Ivanova said that about 11 o'clock at night she was northbound at the intersection of Marine and Pemberton and thatas she was going north up Pemberton, the suspect vehicle turned left in front of her and then they both proceeded on Marine Drive, went north on Lloyd Avenue along 17th, and the vehicle eventually stopped on McKay Avenue.

That is an area that is familiar to the Courtpersonally as I have travelled that route myself in the past, but to be certain I in fact produced a page from Google Maps and put theofficer's evidence on that map. The likelihood of there being another place outside of this Court's jurisdiction that would allow for theofficer's evidence to make sense in that way is remote, to say the least. [5] There was other evidence which may or may not -- and I certainly do not have the opportunity now to think this through --support or corroborate the officer's evidence.

However, there is no suggestion that any unusual period of time occurred between whenthe officer took what is now the accused, Ms. Thorburn, into custody at the scene and when she arrived at the detachment. It is clear,watching a video that occurs at the detachment, that the officer is well-known at that detachment. There are other indicators also thatthis occurred within North Vancouver.

In particular, during the course of the cell block video the accused herself mentions that she livesin North Vancouver. [6] In any event, even if I am in error in taking that evidence into account, the case law satisfies me that at the very least I can takejudicial notice of jurisdiction and in any event the Crown would be entitled to reopen their case to hear that evidence. [7] The first decision I will refer to is R. v. Wallace [2001] B.C.J. 267, a decision of our Court of Appeal.

In that matter the courtconsidered judicial notice, and at paragraph 17 said as follows: In my opinion, the trial judge did not err in the manner urged by the appellant. As stated in R. v.

Potts, supra, [at pp. 225-226]: Judicial notice, it has been said, is the acceptance by a Court or judicial tribunal, without the requirement of proof, of the truth of aparticular fact or state of affairs that is of such general or common knowledge in the community that proof of it can be dispensed with.The doctrine is thus said to be an exception to the general rule that a Judge or jury may consider only evidence which has been tenderedin Court and may not act on personal knowledge: see McWilliams, Canadian Criminal Evidence (1974), p. 379. As Lord Sumner put it inCommonwealth Shipping Representative v.

Peninsular and Oriental Branch Service, [1923] A.C.191 at 211: ... to require that a judge should affect a cloistered aloofness from facts that every other man in Court is fully aware of, and should insiston having proof on oath of what, as a man of the world, he knows already better than any witness can tell him, is a rule that may easilybecome pedantic and futile.

Thus it has been held that, generally speaking, a Court may properly take judicial notice of any fact or matter which is so generallyknown and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resortto sources whose accuracy cannot reasonably be questioned. [8] The issue was also dealt with by Mr. Justice Preston in the case of R. v. Goodwin, New Westminster Docket X054100, November 1st, 1999. In that matter a young fellow was charged with breach of probation.

The appeal was taken on the basis that theCrown had failed to prove that the offence took place within the jurisdiction of the court. [9] There was some evidence before the court, which was that the accused lived in Maple Ridge at a certain address, that his school was in Pitt Meadows and that another party lived on 225th Avenue in Maple Ridge and therefore that the driving alleged whichconstituted the breach of probation was found to have occurred in Maple Ridge. [10] At paragraph 7 the court says as follows: There are numerous authorities that deal with the question of the extent of the evidence required to satisfy the obligation of the Crown toprove matters such as jurisdiction.

I will refer first to R. v. Redlick (ON SC), [1978] 41 C.C.C. (2d) 358, a decision ofthe Ontario High Court of Justice. The portion that I am referring to is at page 359 through 360. Mr. Justice Linden said: It is clear that the location is an essential ingredient of this offence. The Court must be satisfied in order to convict that the offenceoccurred in a city, town, police village or other built-up area.

Normally this would require evidence, especially if there is a dispute as tothis matter, but I do not believe that evidence must be given in all cases, especially where it is so obvious to everyone that the offence hasoccurred within such an area. One should not be required to prove the patently obvious. It is only where there is some dispute or somepossible disagreement about whether the location is within such an area or whether it is not. Merely because judicial notice isinappropriate in one prosecution under this section, does not necessarily mean that it can never be employed.

As in so many things, it alldepends upon the circumstances.

[11] At paragraph 8 the court quotes R. v. Bednarz, [1961] 30 C.C.C. 398. . . . in proper cases it is possible to take judicial notice of a location. which in that case, was a particular tower which everyone knew waswithin the jurisdiction. It is not necessary to waste the time of the court proving the obvious. If the location is in dispute it can be drawnto the attention of the court, and evidence will be demanded concerning that fact. [12] Paragraph 9: The Bednarz case dealt with judicial notice in such circumstances as well. There are three passages at page 400 of the Bednarz case towhich I will refer. There could have been no doubt in the mind of anyone taking

part in this trial with respect to the place where the offence was committed.Nor was it suggested in this Court that the offence charged was committed in some township other than Kendry. If that had been proved,the magistrate could have amended the information to conform with the evidence. And later: Formal proof of that fact, which was obviously within the knowledge of the magistrate, the Crown counsel and the accused, wasunnecessary.

And further: Any other decision upon the point of law reserved in this case would invite the reproach that justice was being administered in disregardof the plain realities of the situation. [13] Paragraph 10: I adopt those statements as a principle to be applied in the circumstances before me. [14] Paragraph 11: This was a court sitting in Maple Ridge, dealing with a Maple Ridge probation order, with ample evidence that the alleged breach of theprobation took place here in Maple Ridge.

In all the circumstances I am satisfied that the judge erred in conclusion that the Crown hadnot proved jurisdiction. [15] The appeal was allowed. I will also refer to R. v. Purcell, (NS CA), 24 C.C.C. (2d) 139, a similar caseinvolving a no evidence motion regarding jurisdiction. In that matter the offence alleged was alleged to have occurred at the policestation, and no one said in particular where that police station was.

At page 2 in the Nova Scotia Supreme Court Appeal Division said asfollows: Even though the new Halifax police station was described only as the "police station" and was not specifically located in evidence, and isperhaps not yet an institution sufficiently notorious and historic to be judicially noticed, the evidence showed that it was the policestation where the Halifax policemen gathered and that it was either in Halifax or within very short travelling time from Halifax and, ofcourse, that it was still in Nova Scotia.

The learned magistrate should, in our respectful opinion, have concluded that the events described in evidence occurred at or nearHalifax, in the County of Halifax, Nova Scotia, and were within his territorial jurisdiction which is the Province of Nova Scotia, and heshould not have dismissed the charge on the ground that he gave. If any authority were necessary to support this opinion, the attitude that we have adopted is that taken in several modern Nova Scotiacases. In Regina v.

Porter, (NS SC), [1961] 130 C.C.C. 116, Chief Justice Ilsley was satisfied on, if I may say so,much less evidence than we have here, that the offence in that case had been adequately shown to have occurred at or near Dartmouth, inthe Province of Nova Scotia. See also Regina v. Hiltz, (NS SC), [1958] 121 C.C.C. 378. [16] Crown counsel today has provided the case of R. v. Samuel, a decision of the Alberta Provincial Court November 28th, 2002. After examining the issue for some time, at paragraph 38 the court said: As can be seen, each case turns on its own facts.

The Court must inquire as to there being some evidence on the record as to place andwhether that place is within the territorial jurisdiction of the Court. The evidence may be so notorious as to allow the Court to takejudicial notice of the place alleged in the Information. [17] That case goes on to consider various authorities and the principles of allowing the Crown to reopen its case. [18] In this matter it is clear that this was an omission by the Crown of a very narrow and technical nature.

It is my view that theinterests of justice require that the Court allow the Crown, if necessary, to reopen its case and to call evidence of the location where thedriving was observed as falling within, at or near North Vancouver, British Columbia.

(RULING CONCLUDED)