C A N A D A                                                            Superior Court

Province of Quebec                            (Criminal Division)

District of Laval                                                                                                                                        

 

 

No.                                                      540-36-000008-952                September 7th, 1995

 

PRESENT:  THE HONOURABLE

 

JEAN-GUY BOILARD, J.S.C.   

 

                                                              

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VILLE DE LAVAL

 

Appellant

 

-vs-

 

EUGENIA FOGEL BIRENCWAIG

 

Respondent

                                                             

 

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                                                         J U G D M E N T

 

                                                                  (Orally)

 

                                                                       

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On March 21st, 1995, Judge Lalande of the Laval Municipal Court acquitted the respondent, Madam Eugenia Fogel Birencwaig in her absence of an offence pursuant to s. 310 of the Quebec Highway Security Code, failure to respect road signalization. 

 

The Crown is appealing that decision for the reason that the judge committed an error in using some personal knowledge he had concerning the location where the offence is alleged to have occurred and in incorporating that personal knowledge into the evidence that was before him.  Such judicial notice was not suggested by the accused nor the prosecution.  As a matter of fact, Crown counsel appearing before the trial judge strongly objected to what the trial judge was doing. 

 

Basically, the trial judge had heard some other cases originating from the same location and in one of those cases, photographs had been filed by the litigants.  The trial judge decided, over the objection of the prosecution, to use those photographs and the knowledge he had acquired as part of the evidence which resulted in the acquittal of the respondent. 

 

The Crown is right to complain about the way the trial was conducted.  In exceptional cases, when it becomes a matter of doing justice to someone, a judge is entitled to call witnesses provided that the parties are afforded the occasion of examining or cross‑examining those witnesses.  That exceptional right is granted a trial judge by the Common Law as the Supreme Court of Canada ruled in R. vs Finta (1994) 88 C.C.C.(3) page 417, 28 C.R.(4) page 265.

 

That right must be exercised with extreme care and caution as the Court of Appeal of the province of Quebec stated in the case of R. vs Gauthier (1994) 31 C.R.(4) page 252 (leave to appeal to Supreme Court denied (1995) 37 C.R.(4) page 398). 

 

But eventhough a trial judge may call witnesses, proprio motu, a judge may never consider as part of the evidence some knowledge he would have concerning the factual situation disclosed before him because how can one of the parties be expected to cross‑examine that knowledge?  It becomes an impossibility. 

 

The appeal is allowed, the verdict of acquittal is rescinded and I must order a new trial before a summary conviction Court presided by another judge than Judge Lalande.  In view of the exceptional nature of this appeal, in view of the minor seriousness of the offence, in view of the explanation given by Madam Fogel Birencwaig of what had taken place when she was arrested, it seems to me that the Crown would exercise its discretion properly in not re‑trying this case.

 

The appeal is allowed without costs.

 

JEAN-GUY BOILARD, j.s.c.

 

Me N. Sauvageau

For the appellant

 

Madam Eugenia F. Birencwaig

Representing herself