R. v. Kenwell, 2012 ABQB 179

Court of Queen ’ s Bench of Alberta Citation: R. v. Kenwell, 2012 ABQB 179 Date: 20120319 Docket: 110551587S1 Registry: Red Deer Between: Her Majesty the Queen Appellant - and - Wesley Howard Kenwell Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.B. Sulatycky _______________________________________________________ Appeal from the Conviction by The Honourable Judge J.D. Holmes Dated the 27 th day of April, 2011 (Docket: A31612092Z) I. Introduction

[ 1 ] This is an appeal by the Crown from a decision in the Provincial Court imposing a fine lower than the specified penalty in the Provincial Offences Procedures Act Procedure Regulation , AR 233/89 ,

Part 27, s. 4(2) [ Regulation ]. II. Facts [ 2 ] The facts are straightforward. The Respondent was operating a large semi-trailer truck for the purpose of moving an oilfield drilling rig between locations. The Respondent’s vehicle, including the trailer and load, was approximately 36 metres long. [ 3 ] As the Respondent approached a turn on the planned route he, in consultation with other people involved in the transport, decided to, and did, reconfigure the truck in order to reduce the risk of toppling the load while navigating the corner.

The reconfiguration of the truck involved removing the ‘jeep’ and ‘booster’, after which the truck was non-compliant with the provincial and municipal permits under which it was operating. [ 4 ] The police received an anonymous tip that a rig was being moved and causing damage to local roads. When peace officers arrived on scene and inspected the Respondent’s documents, Officer Miller discovered the permit violation. As a consequence, Officer Miller issued a violation ticket to the Respondent with a specified penalty of $16,301 for contravening s. 131(1) (

h) of the Alberta Traffic Safety Act , R.S.A. 2000, c. T-6 [ TSA ]. The fine was calculated according to the prescribed formula for determining the specified penalty for this offence. [ 5 ] The agent acting for the Respondent asked the Trial Judge to dismiss the charge entirely, pursuant to s. 161 of the TSA , arguing that the offence could not have been avoided by the exercise of reasonable care or precaution. The Trial Judge did not agree. He found there were no exigent circumstances that required the rig to proceed without further consultation with the municipality.

Rather, the Trial Judge found that the decision to reconfigure the truck to navigate the turn was primarily to avoid delay and resultant economic consequences. He entered a conviction and fined the Respondent $10,000. [ 6 ] The Crown appealed the sentence arguing that the Trial Judge committed a reversible error by failing to impose the specified penalty. III. Issue [ 7 ] The sole question on appeal is whether a judge, after presiding over a trial, has discretion to alter the specified penalty set out in the Regulation . IV. Standard of Review [ 8 ] The issue under appeal is a question of pure law.

Accordingly, the standard of review is correctness and a reviewing court is free to replace the trial decision with its own opinion: Housen v. Nikolaissen , 2002 SCC 33 , [2002] 2 S.C.R. 235 at para. 8 . V. Positions of the Parties [ 9 ] In support of its position the Crown made three arguments. First, the legislation, through clear and unambiguous language, removes the general discretion of a trial judge to alter a specified penalty particular to this, and other, traffic offences.

Second, prudent public policy favours the Crown’s position so that offenders who see their matter through to trial are not put in a more advantageous position relative to offenders who plead guilty, make a voluntary payment, and save Her Majesty from expending additional time and resources. Third, existing authority from the Court of Queen’s Bench of Alberta was wrongly decided based on an erroneous application of interpretative principles and an incorrect view of the Legislature’s intent with respect to this legal question.

[10] The Respondent argued that the decision by Bielby J. (as she then was) in R. v. Ochotta (2004), 2004 ABQB 552 ,366 A.R. 254 interpreting the Provincial Offences Procedure Act, R.S.A. 2000, c. P-34 [POPA] as retaining a discretion on the part of ajudge to alter a specified penalty after trial is good law and dispositive of the appeal. VI. Analysis [11] In short, Ochotta is a full answer to the Crown’s arguments in the case at bar. I find no reason why that decision ought to beoverturned.

In Ochotta, Justice Bielby carefully interpreted the POPA and provided thorough and considered reasons for her judgment. [12] I do not find that Justice Bielby failed to consider any relevant statute or case law, or that she erred in her

interpretation of thelegislation, or that she was wrong in her determination of legislative intent. As a result, there is no reason to depart from her conclusion.Justice Bielby’s determination, in 2004, of the issue currently under appeal was – and remains – correct. a. The plain and ordinary meaning of the Provincial Offences Procedure Act [13] The Crown argued that the specific language employed in s. 4(2) of

Part 27 in

Schedule 2 of the Regulation, does not leaveroom for judicial discretion in determining the sentence. The actual language used reads “the specified penalty ... is ...”. On its face thisargument is compelling. However, a court must read the words of

an Act in their entire context and in their grammatical and ordinarysense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at 41. [14] This is precisely the approach taken in Ochotta. Justice Bielby did not stop at the specific language contained in s. 4(2) of theRegulation.

Rather, she took a broad view and considered s. 4(2) within the wider context of the Act as a whole, including the definitionof “specified penalty” and the express provisions of the legislation. [15] In particular, Justice Bielby observed that the POPA did not contain an express provision requiring the imposition of thespecified penalty where a conviction was entered after trial, even though the specified penalty was mandated in several othercircumstances.

She also noted that “specified penalty” was (and is) defined as: an amount determined pursuant to the regulations ... that can be paid by a defendant who is issued a violation ticket and is authorized tomake a payment without a Court appearance. [Emphasis added] [16] She found it significant that a specified penalty is an amount that can be paid by a defendant, not an amount that must be paidby a defendant.

In her view, with which I agree, this language connoted discretion on the part of the judge at first instance to vary thespecified penalty in circumstances where the legislation did not expressly impose the specified penalty. In my opinion, the differencebetween the Crown’s argument and Justice Bielby’s decision is the difference between what the penalty amount is versus when thatpenalty amount ought to be applied. [17] To this end, I also note a provision within the POPA that expressly contemplates circumstances where a specified penaltycould be varied.

Section 40, applicable to

Part 3 procedure dealing with non-summons offences, states: Notwithstanding any other enactment ... if proceedings have been commenced under this Part with respect to an offence the fine imposedwith respect to that offence shall not be more than $1000 excluding any applicable surcharge and the defendant is not liable toimprisonment. Thus, in a

Part 3 Offence Notice Violation Ticket, a characterization that arguably applies in this case, where the fine has been assessedat a value greater than $1000 the lawful penalty will be varied by operation of s. 40.

[ 18 ] As a final point, the Crown relies on R. v. Winlow , 2009 ONCA 643 , 99 O.R. (3d) 337, from the Ontario Court of Appeal for the proposition that sentencing judges do not have jurisdiction or discretion to reduce the fine specified for speeding offences. While some of the interpretative principles considered in that case are useful and transferrable in a general sense, ultimately that case is distinguishable because the core of the matter were different provisions in a different statute. b. Erroneous application of interpretative principles [ 19 ] The Crown in Ochotta argued that the POPA was ambiguous and therefore other aids to statutory

interpretation ought to be used to determine the legislative intent underpinning the enactment. Interestingly, the Crown in the instant case took the opposite view and argued that the legislation is clear and, therefore, it was inappropriate and in error for Justice Bielby to have looked to other interpretative aids, such as the maxim expressio unius est exclusio alterius (to express one thing is to exclude the other). [ 20 ] In my view this Crown argument is without merit.

It is obvious that Justice Bielby did not find the POPA ambiguous or unclear and did not rely on any cannon of construction, or apply the same in error, in arriving at her conclusion. It was only in response to the Crown’s arguments in that case did Justice Bielby employ interpretative aids to assess the Legislature’s intention in respect of the question before the Court. For example, at paras. 20-21, Justice Bielby stated: 20 The crown suggests that the legislation is unclear and therefore other aids to statutory

interpretation may be utilized to divine the intention of the Legislature . No specific

section capable of multiple

interpretations have been identified to support this suggestion. I do not find any lack of clarity in the statute such as to necessitate a search for implied meaning . 21 If such lack of clarity had been identified , the crown is quite right that the task of the court in interpreting the legislation is to attempt to ascertain the intention of the Legislature in passing the statute in question. [ 21 ] Justice Bielby then goes on to employ several principles of statutory

interpretation to determine the Legislature’s intention for the purpose of addressing the Crown’s argument in an alternative manner, though she clearly rejected the very premise of that argument. At paras. 30-31 she concludes that: 30 No statutory provision requires a justice of the peace or judge to impose the statutory penalty as a consequence of convicting after a trial in relation to an offence governed by the Provincial Offences Procedure Act .

No statutory uncertainty opens the door to a search for implied evidence of legislative intent to the contrary . 31 Even if it did , I would not have concluded that the Legislature intended a justice to be required to impose a specified or set penalty after conviction after trial. ... [Emphasis added; citations omitted] [ 22 ] These passages demonstrate that Justice Bielby only considered the Crown’s argument on implied meaning after determining that the POPA unambiguously allowed post-trial discretion in sentencing. Regarding the Crown’s argument on implied meaning, Justice Bielby arrived at the same conclusion.

She used interpretative aides to determine that the Legislature intended a trial judge to have discretion in sentencing post-trial because: (

i) Legislators had turned their minds to those circumstances where imposing the specified penalty was mandatory, but chose not do so where a conviction was entered after trial: Ochotta at paras. 24-25 . (ii) A logical reason existed for the Legislature to treat the imposition of a penalty post-trial differently, (that reason being that after trial a judge would understand the full compendium of circumstances giving rise to the offence in order to inform his or her

determination of a fit sentence): Ochotta at para. 26 . (iii) To accept the Crown’s argument would require reading-in a provision of the POPA that did not exist: Ochotta at para. 28 . [ 23 ] Having considered the full context of Justice Bielby’s decision, it is clear that she did not err by relying on interpretative aids in circumstances where the statute in question was not ambiguous. She only turned to cannons of construction at the beckoning of counsel in order to provide a full answer to the Crown’s case. Moreover, I agree with her conclusion on legislative intent in respect of this issue.

I also note that in the almost eight years that have elapsed since judgment was rendered in Ochotta , the Legislature has not taken any steps to amend the POPA on this point. This gives rise to an inference that the Legislature does not take an opposing view. c. Public policy favours mandating the specified penalty post-trial [ 24 ] The Crown submits that offenders who see their matters through to trial should not be placed in a more advantageous sentencing position relative to offenders who plead guilty, make a voluntary payment, and save Her Majesty the time and expense of a needless prosecution.

In the Crown’s view this circumstance would create an undesirable situation where courts become overburdened with trials in cases that might have otherwise been resolved, but for defendants seeking a lighter sentence. [ 25 ] While judicial economy is a valid policy consideration, it does not trump the substantive requirement that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as set out in s. 718.1 of the Criminal Code .

This fundamental sentencing principle is brought to bear in the case at bar pursuant to s. 3 of the POPA , which incorporates all provisions of the Criminal Code that are applicable in any manner to

summary convictions and related proceedings, except to the extent of any inconsistency with the POPA . Notably, in R. v. Solowan , 2008 SCC 62 , [2008] 3 S.C.R. 309 at para. 16 , the Supreme Court of Canada confirmed that sentencing principles found in

Part XXIII of the Criminal Code do apply to both indictable and

summary conviction offences. [ 26 ] Moreover, I do not find any inconsistency between POPA and the proportionality principle, or see difficulty that arises from their parallel operation in this circumstance. If POPA did contain a provision imposing the specified penalty following a conviction entered after trial, s. 718.1 of the Code would subordinate to that provision by operation of s. 3 . However, because POPA contemplates discretion in sentencing after trial, s. 718.1 does not create any basis to attract the exclusion in POPA , s. 3. d.

Part 2 or

Part 3 procedure [ 27 ] One further point bears on this case. In my review of the record there is some confusion with respect to whether the proceedings against the Respondent were commenced under

Part 2 (Summons Violation Tickets) or

Part 3 (Offence Notice Violation Tickets) procedure, as set out in the POPA . [ 28 ] The confusion arises based on the offence notice conforming with Form 1 of

Schedule 1 in the Regulation , which, according to s. 13(3)of the Regulation , implies

Part 2 procedure. However, in substance, the Respondent was never summoned to appear before a court. The Crown, in its written submissions, agreed this was the case and that had the Respondent made the voluntary payment the matter would have been closed. These aspects are consistent with

Part 3 procedure. [ 29 ] Furthermore, according to s. 6 of

Part 27 of

Schedule 2 in the Regulation : Proceedings with respect to a contravention of any provision of the Traffic Safety Act shown in Column 1 may be commenced by a violation ticket issued under either

Part 2 or

Part 3 of the Provincial Offences Procedure Act . [ 30 ] Notably Column 1, at item 47, includes section 131(1) (

h) of the TSA , the offence for which the Respondent was issued a ticket. In addition, s. 22(2) of POPA states:

If the regulations provide that proceedings with respect to an offence may be commenced under either

Part 2 or

Part 3, the proceedings shall be commenced under

Part 3 unless it is in the public interest to compel the defendant to appear before a justice in proceedings under

Part 2. [ 31 ] This is significant because s. 40 of the POPA limits the penalty for a

Part 3 violation to $1000. Therefore any fine in excess of $1000, including the fine of $10,000 against which this appeal is taken, is unlawful. [ 32 ] As a consequence, I issued a letter to counsel on October 18, 2011 inviting submissions on the meaning and operation of s. 40 and whether it was open to the Respondent to seek leave to cross-appeal or for the Court to act on its own motion in the event that the fine imposed was found to be illegal. [ 33 ] In the Crown’s response it asked the Court to accept that the correct procedure was used but failed to point to any fact in evidence to support that position. To the contrary, the Crown’s submission affirms the view that, in fact,

Part 3 procedure was used – notwithstanding the form of violation notice issued. The Crown stated that

Part 2 is used to compel the accused to appear in court. To effect this outcome, the offence notice would indicate a check in the box “Court Appearance Required”, and no voluntary payment option would be available. In the present case the “Court Appearance Required” box was not checked and The Respondent was provided with a voluntary payment option of $16,301. [ 34 ] The Crown further argued that if this Court found

Part 3 procedure was used then it was in the public interest to compel the accused to appear in court. Presumably this argument is advanced in an attempt to engage the exception under s. 22(2) of the POPA . The difficulty with this position is the silence of the evidentiary record on the question of public interest. [ 35 ] Neither Officer Miller nor Officer McIvor gave evidence that either of them turned their mind to whether the public interest favoured summoning the Respondent to court. In fact, the actual conduct of the peace officers countervail the Crown’s view.

That Officer Miller did not check the box to require a court appearance and did offer the Respondent a voluntary payment option leads me to conclude that, if she turned her mind to the issue at all, she concluded that the public interest would not be served by mandating the Respondent appear in court. [ 36 ] In the Respondent’s written submissions he seeks permission from this Court for an extension of the time within which to file his notice of cross-appeal. While I am inclined to make that order, doing so is unnecessary in my view of the correct disposition of this appeal.

While the Trial Judge had the discretion to vary the sentence from the specified penalty after presiding over the Respondent’s trial, he erred by not applying s. 40 of the POPA to limit the maximum fine to $1,000. VII. Conclusion [ 37 ] Based on the foregoing I conclude the Respondent’s fine was unlawful. The Crown appeal is dismissed. However, in the interests of justice, and by the power vested in a court on appeal pursuant to s. 687(1) (

a) of the Criminal Code , made applicable to

summary convictions by way of s. 822(1) , I reduce the Respondent’s fine to the lawful maximum of $1,000. Heard on the 03 rd day of October, 2011. Dated at the City of Calgary, Alberta this 15 h day of March, 2012.

A.B. Sulatycky J.C.Q.B.A. Appearances: Maurice C. Collard for the Appellant Brent W. Mielke for the Respondent