R. v. Don Mills Steel and Metal, 2011 ONCJ 846

COURT FILE No.: 1260-999-1555802Z-00 Citation: R. v. Don Mills Steel and Metal

(1974) Limited , 2011 ONCJ 846 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DON MILLS STEEL AND METAL

(1974) LIMITED Before Justice of the Peace Jerry S. Woloschuk Heard on May 26, 2011 and August 25, 2011 Reasons for Judgment released on December 22, 2011 D. Milner ........................................................................................................ for the prosecution P. Cooper ................................................. for the defendant Don Mills Steel and Metal Limited JUSTICE OF THE PEACE WOLOSCHUK: [ 1 ] Don Mills Steel and Metal

(1974) Limited stands charged that on or about the 26 th day of October 2010, at Highway 407 westbound, at the Town of Milton, Regional Municipality of Halton, did commit the offence of overweight dual axle 6680 kilograms, Class A Highway, contrary to the Highway Traffic Act , section 116 (1) (c). [ 2 ] On May 26, 2011, Mr. Cooper pleads not guilty to the charge on behalf of the corporate defendant. Testimony was only provided by Officer Karl Kaseloo. The court also considered submissions made by both parties. 1.

Background [ 3 ] The evidence indicates that on October 26, 2010 Officer Kaseloo was on duty at the Truck Inspection Station, which is located just west of Bronte Road, on Highway 407 westbound, in the Town of Oakville, Region of Halton. He was operating the weigh scale on that date, routinely inspecting and weighing commercial motor vehicles. The scale he was using was an in-ground one single plate, manufactured by Toledo Scales. [ 4 ] Officer Kaseloo observed a commercial motor vehicle, a 2006 Mack, with Ontario marker, 4314TK entering the inspection station.

It had four axles; consisting of a steer axle, a lift axle and in the back a dual axle. It was a “roll –on, roll-off’’ vehicle, primarily used for hauling removable bins. [ 5 ] He testified that when the vehicle pulled up onto the scale and the dual axle weight was observed by him on the display it showed a weight of 24,580 kilograms. For any dual axle under the regulations in the H.T.A the maximum allowable for any spacing for dual axle is 19,100.

The weight was substantially over. [ 6 ] A valid CVOR, and documents showing that the corporate defendant owned the vehicle in question, was confirmed by the documentary evidence at trial (exhibit no.1). 2: ISSUES BEFORE THE COURT [ 7 ] There is no issue as to jurisdiction, or that this was a dual axle commercial motor vehicle or that this took place on a Class A Highway.

[ 8 ] The charge under section 116 (1) of the Highway Traffic Act is associated with a schedule, that lists how much weight can be on a dual axle. Table 1 which follows this

section shows a maximum allowable weight of 17,900 kilograms for axle spreads of between 1.5 and 1.6 metres, which is the spread in the vehicle in this matter. This also was not an issue during this proceeding. [ 9 ] The issue as presented by Mr. Cooper is the following; “what was the weight. What was the true weight?” This is the issue in his view because the evidence clearly shows that the calibration on the scale, on the date the corporate defendant’s truck was weighed was not up to date.

Officer Kaseloo testified that at that time there were some issues with the Ministry getting a service contract and the scale was not calibrated for some time. [ 10 ] He also testified that though the scale was not calibrated for some time he was satisfied that it was functioning properly on the day in question.

When asked how he knew it was working properly he stated the following; “….every day when we would arrive at the scale I’d take my cruiser which is assigned to me personally, it’s my vehicle that I use every single day which is a Ford F150 pickup….I put my vehicle on the scale every single morning when I arrive. The weight, known weight, for that vehicle is 2940 to 2970 in the ball park as far as weight. ….I’ve weighed that vehicle at the Trafalgar scales.

I’ve weighed that vehicle on portable scales and I’ve weighed that vehicle at that location…Even now that the scales are calibrated it’s still reading within those ranges…between 2940 , 2970 kilos. It can vary based on fuel.” [ 11 ] Officer Kaseloo testified that he made the following visual observations as to the weight of the truck in question: “as it came down ramp I could see that the truck was actually appeared to be leaning to the rear of the vehicle, meaning the nose was slightly up and the back slightly down.

The look of the tires as the vehicle approached the scale was somewhat squatted and bulging at the rear of the vehicle specifically.” He concluded that there was substantial amount of weight at the rear of the vehicle. SUBMISSIONS AS TO THE ACCURACY OF THE SCALES [ 12 ] Mr. Milner for the prosecution submitted that the officer noted that the scales had been at the location for some time. He would take his vehicle and park it on the scale pad every day to make sure that it still weighed the same it had on the previous day. The scales get calibrated and the certificate is good for six months or for a year.

In this case the certificated was older that the time frame on the certificate but since he used, a known weight, his own vehicle, he was satisfied it was working properly. [ 13 ] He also submitted that the overweight was confirmed also by Officer Kaseloo visual observation of the truck entering the area. “He describes a vehicle which is leaning down at the back, with tires at the back that are somewhat squatted out…the front end to be higher than the back end…” This would in his view suggest an overweight vehicle. [ 14 ] In his submissions Mr.

Milner indicates that the size of the overweight is also a consideration.

He stated “ this is not a circumstance in which the discrepancy is 500 kilos or less… the officer’s evidence was when he weighed his truck every day it would come in the range of about 30 odd kilos, depending on how much gas was in the tank or other variables….my submissions is with variation’s like that, again and again and again when he weighs his own vehicle to come up with a discrepancy of 6,600 kilos on the back end of a vehicle, which is visibly tilting down at the back, together with all of the other evidence, is adequate to establish beyond a reasonable doubt that this defendant was the owner of the vehicle in question, that it was on a highway at a time when the dual axle was overweight…” [ 15 ] Mr.

Cooper counsel for the defendant corporation submitted that he has no issue with the elements of the offence except for the issue of the scales not being calibrated and therefore the court cannot be satisfied beyond a reasonable doubt of the defendant’s vehicle’s weight. [ 16 ] He submitted “maybe the province forgot about the Weight and Measures Act, and that deals with calibration and the certification of scales that are used for specific purposes for the public, and it’s for the public’s protection that they’re there, and that’s why we calibrate… In this prosecution, we have an officer providing what is essentially hearsay, and hearsay is a reading from his scale ….” [ 17 ] He continued “…and in this case you have a weight on a scale that is not calibrated for some time, … for the court to take judicial notice that the machine was working properly, you would have to have some comfort that it was calibrated.

That’s what it comes down to…..the prosecution has not shown or illustrated or proved beyond a reasonable doubt, which is their obligation, that this machine was able to produce proper weights…”

ANALYSIS [ 18 ] There is no issue as to the elements of the offence except for the issue of weight due to the lack of an up to date certificate of calibration of the particular weigh scale used to weigh the defendant’s truck. I am satisfied from the evidence presented by Officer Kaseloo that on the date in question the Toledo scale he used to weigh the defendant’s truck did not have an up to date calibration certificate, but that does not mean it was not working properly. [ 19 ] When reviewing R. v. B. Gottardo Construction Ltd. [2004] O.J.

No. 2139 which deals with vehicles and excess weight, I take note of the following: Evidence that a measuring instrument such as scales is accurate has repeatedly been held to be prima facia evidence of accuracy; R.v.Bland, Ontario (Ministry of Transportation) v. Dagmar Construction.

In Bland, the Ontario Court of Appeal said: Lord Goddard held that if evidence is given that a mechanical device such as a watch or speedometer ( he could see no difference in principle between them) recorded a particular time or particular speed , which it is the purpose of that instrument to record, that can by itself be prima facia evidence, on which a Court can act. [ 20 ] Justice Knazan in R. v.

Gottardo Construction L td. finds that weigh scales fit into the class of mechanical devises discussed in Bland and states that “lack of evidence of calibration may still be relevant when determining whether or not the case has been proven beyond a reasonable doubt.” [ 21 ] Considering the above mentioned cases I am satisfied that there is prima facia evidence on the weight of the truck and in particular the rear axles in question.

Officer Kaseloo testified and his was the only evidence presented, that when he weighed the dual axles he observed the weight to be 24,580 kilograms. [ 22 ] During submissions counsel for the defence indicated that Officer Kaseloo’s testimony as to the scale’s weight reading was hearsay. Officer Kaseloo testified that he observed the reading on the scale, that is his observation and clearly that is not hearsay. [ 23 ] But as directed by Justice Knazan in R. v.

Gottardo Construction Ltd. one must also determine if the case was proven beyond a reasonable doubt since there is credible evidence of the lack of a current up to date certificate of calibration on this particular scale. [ 24 ] I found Officer Kaseloo’s evidence to be trustworthy and credible. He was precise and consistent in his oral testimony. No evidence was presented to contradict any of his testimony. [ 25 ] He testified he made specific visual observations when the truck in question was travelling into the weigh scale area.

He observed “as it came down ramp I could see that the truck was actually appeared to be leaning to the rear of the vehicle, meaning the nose was slightly up and the back slightly down. The look of the tires as the vehicle approached the scale were somewhat squatted and bulging at the rear of the vehicle specifically.” This in my view confirms that the rear axle had excessive weight on them. [ 26 ] It does not however indicate the amount of weight but only that it appeared to be overweight.

That I am taking into consideration as to the whether the lack of evidence of calibration causes me to have any reasonable doubt as to the accuracy of the weigh scale. In this case it supports the fact that the rear axles are at least by appearances overweight. [ 27 ] In my view what is more helpful for my determination is Officer Kaseloo’s testimony as to how he made sure that the weigh scale in question was operating properly.

He testified ; “….every day when we would arrive at the scale I’d take my cruiser which is assigned to me personally, it’s my vehicle that I use every single day which is a Ford F150 pickup….I put my vehicle on the scale every single morning when I arrive. The weight, known weight, for that vehicle is 2940 to 2970 in the ball park as far as weight. ….I’ve weighed that vehicle at the Trafalgar scales. I’ve weighed that vehicle on portable scales and I’ve weighed that vehicle at that location…Even now that the scales are calibrated it’s still reading within those ranges…between 2940, 2970 kilos.

[ 28 ] No evidence was presented to question that result or provide any information as to the weight of the vehicle in question. The court had only the testimony of the officer.

There was an absence of other evidence which would suggest that the scales were not reliable and accurate on that date. [ 29 ] I am satisfied that with his continuous weighing if his vehicle on that particular scale as well as other scales, and since it was done on numerous occasions and it was even confirmed by him after the updating of the certificate of calibration on the scale in question that the lack of calibration of this scale is not hindering me in determining that the defendant’s truck’s rear dual axle was overweight on the day in question. [ 30 ] The issue now is only by how much.

The allowable weight is 17,900 kilograms for the axle spread in question, the weigh scale indicated a weight of 24,580 kilograms but the evidence from the officer indicates that there is or could be a variance of some 30 kilograms since that is the difference of his vehicle that he used to confirm the scales weight.

Therefore this differential has to be considered and deducted from the overweight amount. [ 31 ] I am satisfied the Prosecution has proven the elements of the offence beyond a reasonable doubt and find the defendant corporation guilty of the offence of overweight dual axle 6650 Kilograms instead of the 6680 kilograms as charged and a conviction is registered. Released: December 22, 2011 Signed: “Justice of the Peace Jerry S. Woloschuk”