R. v. Cressman, 2017 ONCJ 217

CITATION: R. v. Cressman , 2017 ONCJ 217 DATE: March 14, 2017 Provincial Offences #6869720B ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. NICHOLAS CRESSMAN P R O C E E D I N G S A T T R I A L BEFORE JUSTICE OF THE PEACE J. ZIEGLER on MARCH 14, 2017, at GUELPH, Ontario

APPEARANCES : P. Cassata Provincial Prosecutor N. Cressman In Person ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S W I T N E S S E S Examination Cross WITNESSES in-Chief Examination HEIDINGA, Henry 4 7 10 CRESSMAN, Nicholas 9 12 16 E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE 1 (

a) Picture of gravity wagon 11 1(

b) Second picture of gravity wagon 11 2 Email between MTO and OMAFRA 14 REASONS FOR JUDGMENT 22 SENTENCING 25

Transcript Ordered: March 14, 2017 Transcript Completed: April 3, 2017 TUESDAY, MARCH 14, 2017 R E A S O N S F O R J U D G M E N T ZIEGLER, J.P.: (Orally) This is a charge that on September 13, 2016 at 11:00 a.m., Nicholas Cressman, did at County Road 12, near 16 th line, Mapleton Township, Wellington County commit the offence of operate a slow moving vehicle over 40 kilometres per hour, contrary to the Highway Traffic Act , Section 76 (6.1) of the Highway T raffic Act .

I have the evidence of Constable Heidinga, who indicates that he observed a pickup truck travelling at a high rate of speed on a road without signs that would have been by default 80 kilometres per hour, and he got behind that vehicle and said he clocked it at 100 kilometres per hour, and it was pulling an implement of husbandry that didn’t have a slow moving vehicle sign on it. Pictures in Exhibit 1(

a) and (b), were identified by the officer as being the implement that was being hauled by this Toyota pickup truck that was being driven by Nicholas Cressman. And, of course Mr. Cressman took those pictures and identifies that as the implement that he was hauling. In cross-examination and with Exhibit Number 2, Mr. Cressman says that the MTO has told him that this is an implement of husbandry and they can’t licence it, and it is defined as an implement of husbandry. The Act , the Highway Traffic Act says that motor vehicles towing an implement of husbandry are slow moving vehicles. And

Section 6.1 of the Act says: “No person shall operate on a highway a slow moving vehicle with a slow moving sign attached to it or to a trailer, implement of husbandry or other device being towed by it, at a speed greater than 40 kilometers per hour.” Now, the defence says, “well this

section clearly says that you have to have a slow moving vehicle sign attached to it for it to be restricted to not being towed at a greater rate of speed than 40 kilometres per hour”. But, the

section defines “slow moving vehicle” as a “motor vehicle towing an implement of husbandry”. And an “implement of husbandry” cannot be towed greater than 40 kilometers per hour under

Section 6.1, although the language of it is would, on an initial reading, suggest that you’re identified as an implement of towing an implement of husbandry by that slow moving vehicle sign. Now, the officer of course was observing this vehicle travelling more than twice the rate of speed, towing an implement of husbandry. If it had a slow moving vehicle sign on it, which of course wouldn’t make sense in respect to the

interpretation of this Act to say that if you have a slow moving vehicle sign on an implement of husbandry, you cannot travel more than 40 kilometres per hour, but, if you don’t have that sign on an implement of husbandry, you can travel at any speed you want. It wouldn’t make sense.

So when you consider that, in order to make sense of this legislation, because it can be interpreted two ways, the only way that it makes sense is to interpret it the way the prosecution suggests, which is that it creates two types of offences in one subsection.

And because the slow-moving vehicle does define as a motor vehicle towing an implement of husbandry, and because I accept the defendant’s evidence that he was driving a Toyota and pulling an implement that the MTO says is an implement of husbandry, and won’t let him license it, I can’t accept the argument that by not having a slow moving vehicle sign on there he can’t be operating contrary to 6.1 because, in my view, having read the sections over, well three times now, it can be read both ways.

And I accept the logical way to read 6.1 is that it creates two types of offences, and one is that if you’re pulling an implement of husbandry, you can’t go faster than 40 kilometres per hour. And I find this to be an implement of husbandry, so therefore, I am convicting you. S E N T E N C I N G MR. CASSATA: Thank you, Your Worship, I’m just seeking the set fine of $85 on the certificate. THE COURT: Thank you. The fine is $85 plus costs and surcharge. How long do you need to pay that? MR. CRESSMAN: I can do it today. THE COURT: Thank you.

Fifteen days to pay it is granted. ********* Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Jacoba Near (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Nicholas Cressman in the Ontario Court of Justice (Name of Case) (Name of Court) held at 59 Carden Street, Guelph (Court Address) taken from Recording Digital Recording , which has been certified in Form 1. April 3, 2017 (Date) (Signature of Authorized Person(s))