Says signage for construction zones inadequate
Paying the fine for speeding in a construction zone is much cheaper than hiring one of the top defence lawyers in St. John’s to fight it, but it’s not always about the money.
Almost three years and thousands of dollars later, Dave Bussey and his lawyer, Bob Simmonds, took the ticket to the highest court in the province and have been granted a new trial.
The Court of Appeal decision was filed Tuesday.
“I know it’s not very often you see a speeding ticket before the Court of Appeal,” Bussey told The Telegram Friday, “but I’m not going to plead guilty to something I didn’t do.”
The Crown attorney’s office said Friday a decision hasn’t been made whether to prosecute the ticket again.
Bussey said if it proceeds he will fight it again.
Bussey was handed the yellow slip on Sept. 28, 2011 on the Outer Ring Road, near the Allandale Road offramp. An officer pulled him over and told him he was speeding in a construction zone.
According to the court decision, Bussey was driving 92 km/h in what is normally a 100 km/h zone.
He said he and his colleague were on their way to work that morning and noticed that a police car had a vehicle pulled over ahead of them. Bussey said he drove on, and when he looked in his rearview mirror, the officer’s vehicle was behind him, lights flashing.
“I pulled over and he said, ‘You in a hurry?’ I said no. He said, ‘You’re in a construction zone and you’re speeding.’ I said, ‘I’m doing less than 100 and there’s no signs.’ He said, ‘Yes there is, there are signs everywhere.’ We never saw one,” recalled Bussey, who is a St. John’s lawyer.
He was so convinced there weren’t any signs, he asked his colleague to retrace their route and photograph the road. He told his colleague if there was a sign he’d pay the fine, but if not, he was going to fight it.
“It’s been a matter of principle for a long time,” said Bussey, adding there weren’t any workers or equipment on the road that day, either.
“It’s not a point of trying to get away without paying a ticket. This has been very costly, but I don’t think you should plead guilty to something if you’re not guilty,” he said.
The matter was first heard in provincial court. The judge found Bussey guilty, but, according to the Court of Appeal decision, made an error in law which paved the way for the appeal and the ordering of a new trial.
That error occurred when the judge asked the defence for clarification about the photographs taken by Bussey’s colleague, after the man had finished testifying.
Simmonds suggested recalling the witness, but the judge said, “The opportunity for that has passed.”
Simmonds took the matter to the Supreme Court of Newfoundland, questioning whether the provincial court judge had erred in law, but the Supreme Court judge said the provincial court judge had used discretion.
“It was (a) discretionary ruling which should not be interfered with on an appeal,” the Supreme Court judge said.
The Court of Appeal disagreed.
“I am satisfied that this appeal raises a question of law, and that the appeal has a reasonable possibility of success,” Justice Lois Hoegg wrote on behalf of the panel.
She said the judge failed to address or consider the legal requirement that discretion be exercised judicially.
“That omission amounts to a failure to apply a relevant principle of law. Further, in the circumstances, the trial judge’s abrupt dismissal of counsel’s request to reopen his case to recall a witness is a basis on which to conclude that the appeal has a reasonable possibility of success,” Hoegg stated.
She said no one knows how allowing that evidence might have affected the outcome of the trial, and a new trial is required.
“I never dreamed it would end up in the Court of Appeal, but here we are,” said Bussey.
He said the bigger issue is the lack of signs warning of a construction zone on the highway.
He said even if the officer was right, that there had been a sign that day on one of the offramps, what about the other exits and entrances into and off of those ramps?
“How are people supposed to know? You could come off the highway and never know you were in a construction zone, so it’s inadequate signage,” Bussey said.
The issue of speeding in construction zones, signage and worker safety has been front and centre because of the deaths of two Department of Transportation and Works employees killed on duty in the past couple of years.
One death occurred two months before Bussey’s speeding ticket on the same highway, in July 2011. The other occurred while road-painting signs were being set up on the Trans-Canada Highway near Flat Bay on the province’s west coast in July 2013.
Jackie Manuel, executive director of the Newfoundland and Labrador Construction Safety Association, said the Occupational Health and Safety Act requires safety rules to be followed and it is usually up to the employer to ensure it is done.
“As an industry, some are doing great, some not so much,” she said.
“But the act is about protecting workers and the motoring public using any number of kinds of devices and systems designed to put that level of safety in place.”
As a result of the investigation by Service NL’s occupational health and safety division, charges were laid under the Occupational Health and Safety Act in the case of the employee killed on the Outer Ring Road.
The Department of Transportation and Works, the City of St. John’s, Irving Oil Commercial, Irving Oil Refining and Irving Oil Terminals were all charged.
The Department of Transportation and Works and the City of
St. John’s will go to trial in August. Irving is in discussions with the Crown.
It is believed the Flat Bay area road fatality is still under investigation.