Mississauga (City) v. Chudzicki, 2018 ONCJ 858

ONTARIO COURT OF JUSTICE CITATION: Mississauga (City) v. Chudzicki , 2018 ONCJ 858 DATE: 2018/11/30 COURT FILE No.: 16-000572 BETWEEN: THE CORPORATION OF THE CITY OF MISSISSAUGA — AND — MICHAL CHUDZICKI Before Justice Paul F. Monahan Heard on October 5, 2018 Reasons for Decision on the Appeal released on November 30, 2018 Ruarri Patterson........................................................ for the City of Mississauga C.

Walpole .......................................................................... for Michal Chudzicki MONAHAN J.: Introduction and Overview [ 1 ] This is an appeal from a stay issued by His Worship Justice of the Peace M. Barnes which stay was issued on October 12, 2017. The appeal is brought by the City of Mississauga against the respondent Mr. Michal Chudzicki. [ 2 ] It is common ground that on December 9, 2015, the respondent Mr. Chudzicki was licensed by the City of Mississauga as a tow truck driver. He was licensed pursuant to City of Mississauga Bylaw 521-04, as amended (the “Bylaw”).

It is also common ground that he was operating a tow truck on December 9, 2015 owned by 7626975 Canada Incorporated. There is no evidence as to whether Mr. Chudzicki has or had an ownership interest in the numbered company which owns the vehicle or whether he is or was a director or officer of the Company although nothing turns on this point. It was common ground on the appeal that the tow truck was not the personal vehicle of Mr. Chudzicki, although nothing turns on that point either in my view. [ 3 ] A proceeding was commenced against Mr. Chudzicki by way of an information under the Provincial Offences Act .

It is alleged in the information that on December 9, 2015, Mr. Chudzicki did commit the offence of obstructing an inspector from carrying out an inspection under

section 25 of the Bylaw and thereby committed an offence under

section 426 of the Municipal Act, 2001 , as amended. [ 4 ] Mr. Chudzicki brought a Charter application at trial alleging a

section 8 Charter violation and seeking a stay of proceedings . The Charter Application was supported by an affidavit from Mr. Chudzicki. The City did not seek to cross-examine Mr. Chudzicki on his affidavit. Having said that, there does not appear to be any reference to this affidavit by either party in their submissions on the Charter application at trial nor by the Justice of Peace in his reasons for decision. [ 5 ] The trial and the Charter application were heard on a blended basis. These proceedings were heard by the Justice of the Peace starting on June 14, 2017 when Mr.

Chudzicki was arraigned and pled not guilty. Nothing further of substance occurred on that day beyond the arraignment and the plea. The evidence of the City was heard on August 31, 2017 when the City called two City employees both of whom were “Mobile Licence Inspectors” who were inspectors under the Bylaw. The inspectors were Mr. Michael McDonald and Mr. Jay Warburton. Their evidence constituted the totality of the City’s case on both the trial proper and the

section 8 Charter

Application. [6] After the evidence of the City was tendered, the

section 8 Charter issue was argued. It appears to be common ground that it wasexpected by both parties that the Justice of Peace would rule on the

section 8 Charter application first and that is what occurred. It wasalso understood by the parties that if Mr. Chudzicki was not successful on the

section 8 Charter application, then the defence wouldhave an opportunity to call evidence on the trial proper; to argue the merits of the trial proper and to argue a further Charter applicationclaiming a violation of s. 11(b). It was agreed at trial that the

section 11(

b) Charter application would be deferred until final argument onthe trial proper. [7] On October 12, 2017, the Justice of the Peace gave oral reasons for his issuance of a stay of proceedings under

section 24 of theCharter for a violation of

section 8 of the Charter. Preliminary Jurisdictional point [8] Although this point was not raised by either party, I have considered this Court’s jurisdiction to hear this appeal. Thatjurisdiction does in my view exist and derives from the provisions of the Provincial Offences Act and the cases decided thereunder.Section 116 (1) of the Provincial Offences Act refers to an appeal from, among other things, a “conviction” or a “dismissal”. Thepossibility of an appeal from a stay order as was issued in this case is not expressly referred to or dealt with in the legislation. Case lawfrom the Superior Court indicates that a stay of proceedings is equivalent to a “dismissal” under

section 116 and that therefore there is anappeal under

section 116 in a case such as this one: R. v. Barker, [1992] O.J. 545 (Ont. Gen. Div.), and R. v. Boise Cascade Canada(1991), 14 W.C.B. 92d) 259 (Ont. Gen. Div.). [9]

Section 121 of the Provincial Offences Act provides for the powers of the Court on appeal “from an acquittal”. The Court candismiss the appeal, allow the appeal or order a new trial or make a finding of guilt. A “dismissal” under

section 116 is a disposition“tantamount to an acquittal”: Ontario Securities Commission v. Canatel Ltd. (1992), (ON SC), 10 O.R. (3d) 491 atparagraph 22 affirmed (1993), (ON CA), 12 O.R. (3d) 319 (C.A.). Accordingly, by reason of sections 116 and 121 ofthe Provincial Offences Act, the Court may hear an appeal from a stay order as if it were a dismissal and grant the same remediesavailable as in the case of an acquittal. Position of the Parties on the Appeal [10] The appellant City takes the position that the appeal should be allowed and that I should order a new trial.

The defence takes theposition that the appeal should be dismissed and the stay upheld. The Decision and Reasons of the Justice of the Peace on the

Section 8 Charter Application [11] The Justice of the Peace’s reasons for the stay in this case are very brief. They fill only two pages of the transcript and refer to nocase law. The principal part of his reasons reads as follows: Now the Charter is perfectly clear,

section 8 … [reads] everyone has the right to be secure against unreasonable search or seizure, solistening to the evidence that has occurred here is on this particular date in December 2015, two bylaw inspectors, proceeded to inspectMr. Chudzicki’s tow truck. There is no dispute there. Now to define inspect, inspect means to look at someone or something closely, toassess it, their condition, or to discover any shortcomings. That is to say to examine someone or something, to ensure they may achievean official standard.

Search however, is to look to or open carefully or thoroughly in an effort to find or discover something. So when weare searching we are looking for something. Now, the method of searching, has to be judicially approved, or there has to beauthorization, either through caselaw or legally to search something. Custom inspectors can search, that’s just the way it is and nobodyhas an expectation of privacy at the AA (sic) border crossing. Police officers or peace officers as the case may be can search andtypically they can search subsequent to an arrest.

I’m satisfied the municipal bylaw officers to search require authorization. So, in thiscase, the bylaw the officers were to inspect to ensure that the conditions of the bylaw were met. And in this case they were looking for alist of equipment on a tow truck, lynch devices, wheel lift, dry chemical fire extinguishers … it’s a reasonably long list. This particularaspect of the bylaw was carried out by the first inspector, Inspector McDonald. Second inspector proceeded, in my view, to search thevehicle. He went looking for things, and he was looking specifically for work orders.

Now, the bylaw seems to indicate that work ordersin the tow trucks are prohibited, but this inspector and his testimony was he was looking for these particular documents, he was engagedin a search. He had no authorization to do so, it was unreasonable, the

section 8 motion is granted pursuant to

section 24 of the Charter,the charges are stayed. Analysis [12] The principal issue on this appeal is whether the Justice of the Peace was correct when he found that there was a violation ofsection 8 of the Charter. If he was correct, it remains to be considered whether a stay was the appropriate remedy. [13] In my view, for the reasons set out in these reasons for decision, the Justice of Peace was in error when he found that there was aviolation of

section 8 of the Charter. The essence of his reasons appears to be that the second inspector was engaged in a “search” and inthe Justice of the Peace’s view that search was not authorized which led the Justice of the Peace to conclude that there had been aviolation of

section 8. [14] The Justice of the Peace referred to the concept of “an expectation of privacy” when he mentioned that no one had an expectationof privacy at a border crossing. Putting aside the question of whether or not a person has an expectation of privacy at a border crossing,the Justice of the Peace did not make an reference in his reasons to any consideration of the question of whether Mr. Chudzicki or thenumbered company owner of the vehicle had an expectation of privacy in the circumstances involved in this case and whether

section 8of the Charter had any application to the circumstances of this case at all. [15] In fairness to the Justice of the Peace, while he had some case law provided to him as is apparent from the transcription of thesubmissions on the

section 8 Charter issue, he did not appear to have been given the leading decision of the Supreme Court of Canada on

this subject, R. v. Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757. Jarvis deals with the question, among other things, of whenCharter safeguards apply in a regulatory framework and when they do not. The Jarvis decision was provided to me by the legalrepresentative for Mr. Chudzicki. The Supreme Court of Canada’s Decision in Jarvis [16] I turn now to an examination of the Jarvis case. Jarvis involved charges under the Income Tax Act (the “ITA”). Revenue Canadahad received a tip that Mr. Jarvis had not reported sales of his late wife’s art in his tax returns.

Revenue Canada took steps to audit Mr.Jarvis and met with him in April 1994 to ask questions and to obtain records. By May 4, 1994, the file had been referred to the SpecialInvestigations

Section of Revenue Canada to begin an investigation to determine whether a prosecution for tax evasion was warranted.The taxpayer was not informed that his file had been referred to the investigation section. The investigation

section obtained a searchwarrant which was executed. The taxpayer was charged with tax evasion. The trial judge found that the audit had become aninvestigation as of March 16, 1994 and that the documents obtained at the meeting in April 1994 were obtained in violation of

section 7of the Charter. The trial judge determined that the search warrant should not have been issued because it relied on information whichhad been improperly obtained in violation of the Charter. An acquittal was entered at trial. [17] The Supreme Court of Canada in Jarvis found that there was no investigation until May 4, 1994 when the case was referred tothe Special Investigation Unit.

The Supreme Court found that the warrant was properly issued and a new trial was ordered by theSupreme Court. [18] Beyond the specific facts of the Jarvis case, the Supreme Court laid down rules for determining when Charter rights will applyin a regulatory context and when they will not. The Court noted the prospect of penal sanctions for ITA offences.

The Court statedvariously at paras 59, 62 and 67 as follows: It is plain that s. 239 offences … [bear] the formal hallmarks of criminal legislation, namely, prohibitions coupled with penalties…They may be prosecuted upon indictment and convictions carry up to five years incarceration. It is because of these factors that thepenal sanctions in

section 239 are, in certain contexts, referred to as criminal. … [i]n sum, the ITA is a regulatory statute, but noncompliance with its mandatory provisions can in some cases lead to criminalcharges being laid… Stiff jail terms can result from a conviction. To conduct an appropriately contextual Charter analysis in thesecases, the various regulatory and penal considerations must all exert some influence. … it is beyond doubt that the appellant’s

section 7 liberty interest is engaged by the introduction of statutorily compelled informationat his trial for the

section 239 offenses, owing to the threat of imprisonment upon conviction. (emphasis added) [19] The Court in Jarvis then summarized its key conclusion when it stated at para 98 that: Whenever the predominant purpose of an inquiry is the determination of penal liability, criminal investigative techniques must be used.As a corollary, all Charter protections that are relevant in the criminal context must apply. [20] The question of whether in any given case the predominant purpose of an inquiry is the determination of penal liability will be acontextual one.

In the ITA context the Court should consider all the relevant factors including whether the authorities have reasonablegrounds to lay charges; whether the conduct of the authorities was consistent with the pursuit of a criminal investigation; whether theauditor transferred his or her files and materials to the investigators; whether the conduct of the auditor was effectively as an agent forthe investigators; whether the evidence sought was relevant to the taxpayer’s liability generally or was it only relevant to the taxpayerspenal liability; and whether there were other circumstances or factors that lead the trial judge to conclude that the compliance audit hadin reality become a criminal investigation (see Jarvis at para 94).

These questions need to be adapted for consideration in regulatorycases in non-ITA circumstances and I will do that below when I consider the application of the law to the facts of this case. Other Case-law [21] While the leading authority is Jarvis, I will make mention of a number of other authorities which help inform the Charteranalysis in this case. [22] In R. v. Canada Brick Ltd., [2005] O.J. No 2978, Justice Casey Hill, in his usual comprehensive and clear way, provides areview of the principles of law, including those arising out of Jarvis, as concerns the

section 8 Charter right in the criminal andregulatory context. See in particular paragraph 157 of that decision. I have benefited from and relied upon his review of the legalprinciples. Justice Hill made the following key observation in Canada Brick at paragraph 157 (5) that: Commercial activities highly regulated by government in pursuit of public welfare and protection are a feature of modern society.

Thecentrepiece of regulatory regimes for enforcement and ensuring compliance with established standards is generally a statutorilyconferred warrantless power of entry and audit or inspection together with various ancillary powers.

The need for this type ofmonitoring, in the absence of reasonable grounds for believing in the infraction exists, is necessary to maintain compliance includingthrough the deterrence of random and unannounced attendances by government officials…[t]he standard of reasonableness whichprevails in the case of a search or seizure made in the course of enforcement of the criminal law “will not usually be appropriate to adetermination of reasonableness in the administrative or regulatory context”: Thomson Newspapers Ltd. v. Canada, (SCC), [1990] 1 S.C.R. 425, 54 C.C.C. (3d) 417 (S.C.C.) at pp. 475-6.

(emphasis added) [23] In Canada Brick, Justice Hill ultimately found that a

section 8 Charter right had been infringed notwithstanding that it arose in a“regulatory” context namely the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. He did so because he found that the inspectorin that case had initially acted properly and appropriately pursuant to a warrantless power but once the inspector had reasonable andprobable grounds to lay a charge, the inspector could no longer continue to use the warrantless powers to gather evidence to support sucha charge. I note that the company faced only a fine and not penal liability.

Nevertheless, the “predominant objective” had becomeevidence gathering to support the regulatory infraction. Having said that, Justice Hill was not prepared to order a stay under section 24(1) is of the Charter or the exclusion of evidence pursuant to section 24 (2) of the Charter. [24] In Re Ontario Chrysler

(1977) Ltd. and Rush et al., the Ontario Court of Appeal considered the investigatory powers under theBusiness Practices Act, R.S.O. 1980 c. 55. The judge at the trial level had found that the investigatory powers violated

section 8 of theCharter. The Court of Appeal overturned the trial level judge’s decision holding that the statute was regulatory in nature and that theinvestigatory powers did not violate

section 8 of the Charter.

Section 8 of the Charter only protected “a reasonable expectation” againstunreasonable search or seizure which did not arise in that case (see paras 7-8). [25] In Belgoma Transportation and Director of Employment (1985), (ON CA), 20 D.L.R. (4th) 156 (Ont. C.A.),the Ontario Court of Appeal considered whether the investigatory powers under the Employment Standards Act, R.S.O. 1980, c. 137 (the“ESA”) offended

section 8 of the Charter. The Court of Appeal held that even assuming the investigatory powers under the ESAamounted to a “search or seizure”, they did not offend

section 8 of the Charter as the powers were not “unreasonable”. The Court ofAppeal referred to a 1983 report of the Ontario Law Reform Commission which identified some 233 public statutes and numerousbylaws authorizing the entry onto lands or premises without a warrant. The Court of Appeal stated that the standards of reasonableness ofa search and seizure in a criminal context were not the same as the regulatory context. The “search or seizure” power in the ESAregulatory context was not aimed at “detecting criminal activity” but rather was aimed at “ensuring and securing compliance with theregulatory provisions” of the ESA. There was no

section 8 Charter violation in that case. The Bylaw in the Case at Bar [26] The Bylaw in this case is clearly regulatory and not criminal in nature. It is passed pursuant to the Municipal Act, 2001, S.O.2001, c. 25. The

preamble to the Bylaw reads, in part, that the “City of Mississauga considers it desirable and necessary to licence,regulate and govern Owners and Drivers of Tow Trucks for the purposes of Health and Safety, to enhance and encourage safemaintenance, and operational practices of Drivers and Owners”. The

preamble further provides that the City “considers it desirable andnecessary to licence, regulate and govern Owners and Drivers of tow trucks for purposes of Consumer Protection, to enhance andencourage equal, fair and courteous treatment of passengers, Drivers and Owners”. [27] Like many regulatory bylaws and statutes, the Bylaw includes inspection powers.

Section 25 and 26 provide as follows: RIGHT OF INSPECTION OF LICENSED PREMISES OR VEHICLES 25.

(1) An Inspector or the Licence Manager may at any reasonable time enter upon and inspect the business premises orVehicles of any licensee to insure that the provisions of this By-law have been complied with, and an Inspector on completion of aninspection shall complete and file with the Licence Manager a written report on the inspection.

(2) Upon an inspection under subsection (1), the Person inspecting is entitled access to the invoices, vouchers, appointment books ortrip sheets or like documents of the Person being inspected provided such documents are relevant for the purposes of the inspection andthe Person inspecting may remove with the licensee's consent any of the aforementioned documents for the purpose of photocopyingprovided a receipt is given the licensee and the documents are returned to the licensee within forty-eight (48) hours of removal. VEHICLE INSPECTION 26.

(1) The Licence Manager may require an Owner to submit his/her Tow Truck for inspection at any time and at an appointedplace and the Owner shall submit each Tow Truck for inspection when required to do so by the Licence Manager.

(2) When a Tow Truck and its equipment have been examined by the Ministry of Transportation or licensed mechanic and theTow Truck or its equipment is found to be mechanically defective, the Tow Truck Owner shall not operate the Tow Truck or Permit it tobe operated, until the Tow Truck has been reinspected and approved by the Ministry of Transportation or other inspecting authority.

(3) When a Tow Truck is examined by the Ministry of Transportation or licensed mechanic and a report states that the TowTruck or equipment is dangerous or unsafe, the Owner shall remove and return to the Licence Manager the Owner’s Plate to be helduntil the Tow Truck and the equipment are certified to be safe by the Ministry of Transportation or licensed mechanic.

(4) When an Owner is unable to obtain a Safety Standard Certificate issued under the Highway Traffic Act for the Tow Truck following an inspection as required under subsection 1, the Owner shall remove and return to the Licence Manager the Owner's Plate and the Owner shall not operate the Tow Truck until he/she obtains and produces a Safety Standard Certificate. [ 28 ] The Bylaw makes it clear that it is mandatory for a tow truck driver to have certain equipment on a tow truck. For example, two fire extinguishers and two safety chains are required, among many other items: s. 29(1)(

d) and (e). [ 29 ] On the other hand, certain items are not permitted to be kept in a tow truck including “work orders”: s. 29(2)(m). I mention this latter point because it is common ground in this case that one of the items that one of the inspectors was looking for on Mr. Chudzicki’s tow truck was work orders. There is a valid regulatory reason why it is that work orders are prohibited from being kept in a tow truck.

It is apparent from a reading of the Bylaw as a whole that one reason work orders are prohibited from being kept in a tow truck is that persons hiring a tow truck should not be pressured by tow truck drivers into signing work orders for repair work at the roadside. Accordingly, tow truck drivers cannot have work orders in their truck nor can they provide a work order to a hirer of a tow truck nor can they pressure a person who hires a tow truck to sign a work order: see section 29(2)(m),(

n) and (

o) of the Bylaw. Accordingly, inspectors operating under the Bylaw have a bona fide regulatory purpose in checking to see if a tow truck driver has work orders in the tow truck. [ 30 ] The penalties for a contravention of the Bylaw are set out in sections 40 to 40.2 of the Bylaw. They provide for a fine of up to $25,000 in the case of an individual and up to $50,000 in the case of a corporation (section 40).

Section 40.2 provides that a person who is guilty of an offence is liable for a fine as set out in the Bylaw “and such other penalties as provided for in the Provincial Offences Act … and the Municipal Act, 2001 ”.

Section 429 of the Municipal Act, 2001 provides for fines in the event of a breach of a bylaw. There is no prospect of imprisonment for a violation of a bylaw under the Municipal Act, 2001 except for one involving adult entertainment establishments (

section 430 ). [ 31 ] Under the Provincial Offences Act , there are various remedies for a default with respect to the payment of a fine. Those remedies include not permitting the renewal of a licence for example (see section 69(2)). The only potential for imprisonment under the Provincial Offences Act arises if a person does not pay a fine and the court is not satisfied that the person cannot pay the fine (see

section 69 of the Provincial Offences Act ). [ 32 ] On my reading of the Bylaw and the relevant related statutes, as a practical matter, the prospect of imprisonment for a violation of the Bylaw ranges from non-existent to remote. Application of the Law to the Facts in This Case [ 33 ] As indicated above, the learned Justice of the Peace gave no con​sider​ation to the nature and purpose of the Bylaw nor to the “predominant purpose” of the actions of the inspectors in this case. An analysis of the foregoing issues was mandated by the Supreme Court of Canada’s judgment in Jarvis in order to determine whether

section 8 Charter protection applied in this case and whether it was breached. The Justice of the Peace erred by failing to consider these issues when called upon to determine the

section 8 Charter application. I repeat the observation above that the learned Justice of Peace does not appear to have been given the Jarvis case. [ 34 ] The Jarvis case makes it clear that in a regulatory case such as this one, the Charter will only be engaged where the “predominant purpose of the particular inquiry is the determination of penal liability.” In this case, the Court must ask itself whether the actions of the inspectors in their dealings with Mr. Chudzicki had as their predominant purpose the determination of penal liability.

I have adapted to the context of the case at bar the questions which the Supreme Court of Canada laid out in Jarvis with a view to answering the predominant purpose question in the ITA context. As a result, in my view, the following questions arise in this case: (

i) Did the inspectors have reasonable and probable grounds to lay a charge under the Bylaw before they conducted the inspection of tow truck being operated by Mr. Chudzicki? The answer to this question is most clearly no. There is no evidence that the inspectors had any basis to believe that Mr. Chudzicki was violating the bylaw before they approached his truck. It is true that in the course of the inspection, one of the inspectors apparently noticed that the truck only had one fire extinguisher on it instead of two which would be a violation of the Bylaw.

However, the continued examination of his truck was not in furtherance of the fire extinguisher violation. It was clearly with a view to determining whether he had any prohibited items in the tow truck and, in particular, any work orders. (ii) Was the conduct of the inspectors consistent with the pursuit of a criminal investigation? There was no criminal purpose to the actions of the inspectors. They were clearly seeking to determine whether Mr. Chudzicki and the owner of the truck were in compliance with the Bylaw . There was no criminal purpose nor, practically speaking, any criminal or penal exposure to Mr.

Chudzicki or to the owner the vehicle associated with the inspection. (iii) Had there been any transfer of information from the inspection side of the bylaw to the investigatory side? There is no basis in the evidence to suggest that there had been any transfer of information among City of Mississauga officials prior to the inspection . Even if there had been, there was no penal purpose to the investigatory steps taken in this case . (iv) Was the evidence sought relevant to Mr. Chudzicki’s regulatory liability or to some penal liability?

Clearly, the information sought by the inspectors was with a view to ensuring that Mr. Chudzicki and the owner of the truck were in compliance with the bylaw. He had no penal liability exposure and inquiries made of him were clearly in furtherance of a regulatory objective . [ 35 ] It is apparent to me that

section 8 of the Charter had no application in this case at all. Neither Mr. Chudzicki nor the owner of the tow truck had a reasonable expectation of privacy as concerns the operation and content of the tow truck. Mr. Chudzicki was a licensed tow truck driver. The truck itself was a licensed tow truck. The City had a legitimate regulatory objective in ensuring compliance by Mr. Chudzicki and the owner of the tow truck with the Bylaw. It is clear that the inspectors were engaged in ensuring that compliance.

This case does not turn on the definition of “inspection” or “search” nor does it turn on a question of whether the inspectors were “peace officers” or not as was argued before the Justice of the Peace. Of course, the inspectors were engaged in some manner of a “search” but

this does not mean that

section 8 of the Charter was engaged.

Section 8 had no application on the facts of this case and the application of the principles laid down in Jarvis makes that clear. In the same way that a mechanic inspecting a tow truck under

section 26 of the Bylaw could “look under the hood”, an inspector operating under

section 25 could look into the console or glove compartment of the tow truck provided they were doing so with a view to ensuring compliance with the bylaw as was the case here.

Section 25 of the Bylaw permitted the inspectors to “enter upon … the … Vehicle” and to have access to “invoices, vouchers, appointment books or trip sheets or like documents”. In my view, the actions of the inspectors in this case were fully authorized by the Bylaw including by

section 25. [ 36 ] In this case, Mr. Chudzicki says in his affidavit that he objected to the examination inside of the truck as the inspectors were seeking to look into a binder that contained tow truck information and what he said was personal banking documents for income tax purposes. The fact that Mr. Chudzicki may choose to keep personal and business papers in the same binder is of no moment. As long as the tow truck operated by Mr. Chudzicki is licenced under the Bylaw with the City of Mississauga, that truck, including the papers kept in it, may be the subject of an inspection.

How else could the City ensure compliance with the Bylaw? Such steps, whether they are labelled an “examination”, an “inspection” or a “search” are authorized by the Bylaw (section 25 in particular) and do not violate

section 8 of the Charter on the facts of this case. The fact that Mr. Chudzicki may have chosen to keep personal papers in a licenced tow truck co-mingled with tow truck documents cannot be used a shield against an inspection under the Bylaw. [ 37 ] To be clear, Mr. Chudzicki could decline to have the tow truck he was operating inspected just as he did in this case but if he does, he will be exposing himself to potential charges for failure to comply with the Bylaw. That is exactly what happened here. I make no judgment on any defences that may be available to Mr. Chudzicki on the trial proper.

Summary [ 38 ] For the reasons given, I have determined that the learned Justice of the Peace erred when he found that there was a violation of

section 8 of the Charter .

Section 8 of the Charter had no application to the facts of the case at bar for the reasons outlined above. As a result, the matter will be remitted for a new trial before a different Justice of the Peace. It will be open to the new Justice of the Peace to consider, with the parties, whether the evidence taken on the first trial can be used on the new trial. Released: November 30, 2018 Signed: Justice Paul F. Monahan