SEAN MARTIN Appellant And: BRADLEY KENNEDY Appellant And: HER MAJESY THE QUEEN Respondent, 2020 NLSC 73

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Martin , 2020 NLSC 73 Date : May 12, 2020 Docket : 201701G4053 Between: SEAN MARTIN Appellant And: BRADLEY KENNEDY Appellant And: HER MAJESY THE QUEEN Respondent Before: Justice Deborah J. Paquette On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File Numbers 0517 S 00011 and 0517 S 00009 dated the 23rd day of May, 2017. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 2, 2019 Appearances:

Keith S. Morgan Appearing on behalf of the Appellants Richard L. Deveau Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen, 2002 SCC 33 ; Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 ; R. v. W. (D.L.) , 2016 SCC 22 . STATUTES CONSIDERED: Cargo Securement Regulations , N.L.R. 152/04 ; Highway Traffic Act , R.S.N.L. 1990, c. H-3 . REASONS FOR JUDGMENT Paquette, J. : INTRODUCTION [ 1 ] The appellants appeal their convictions for transportation of uncovered scrap metal contrary to subsection 31(1) (

a) of the Cargo Securement Regulations , N.L.R. 152/04 (the “ Regulations ”) enacted under authority of the Highway Traffic Act , R.S.N.L. 1990, c. H-3 (the “ Act ”) . [ 2 ] Subsection 31(1) (

a) of the Regulations states: 31.

(1) Where a vehicle that is operating on a highway in the province is carrying a load of sand, gravel, crushed stone, slag, salt or a mixture of them in the form of particles of up to 40 millimetres in diameter or is carrying waste or scrap metal, the (

a) portion of the load that is not enclosed by the vehicle or load container shall be covered with a covering made of tarpaulin, canvas, net or other material capable of confining the load within the vehicle or load container. [ 3 ] They assert that the trial judge erred in law in failing to consider and apply a proper contextual analysis of this provision and its application within the industry. It is their position that the trial judge should have interpreted the words “scrap metal” as meaning only shredded scrap metal up to 40 millimetres. Subsection 31(1) (

a) of the Regulations had previously used the wording “shredded scrap metal” but the qualifier “shredded” was removed by legislative amendment. The underlying thrust of the appellants’ arguments appears to be that the change was inadvertent. They advance that the adoption of a pragmatic approach to legislative

interpretation will establish that subsection 31(1) (

a) of the Regulations only captures shredded scrap metal. [ 4 ] The respondent counters that the trial judge properly interpreted the law which no longer limited the size of scrap metal which must be contained during transportation. Standard of Review [ 5 ] The standard of review on appeals from Provincial Court is that of correctness for errors of law, palpable and overriding error for both errors of fact and errors of mixed fact and law. The standard on a question of mixed fact and law involves the application of a legal standard to the facts presented in evidence ( Housen v. Nikolaisen , 2002 SCC 33 ).

An error in such a case could amount to an error of law if the trial judge mischaracterized the standard. [ 6 ] If the trial judge is mistaken about the law, deference is not shown. However, the determination of a palpable and overriding error engages a degree of appellate deference on both questions of fact and inferences to be drawn from the facts. FACTS [ 7 ] The appellants are both heavy equipment operators employed with the same recycling enterprise.

They testified that they were travelling back to the company’s scrapyard transporting a load of oversized No. 1 steel, with an uneventful stop at the weigh scale in Goobies. Once back at the scrapyard they were approached by Constable T. Hussey who issued tickets for failing to cover their cargo. [ 8 ] Mr. Martin described the metals he carries: “Anywhere from oversized to No. 1, which is under five feet and heavy iron and what we call (unintelligible), washers and dryers and stuff like that which we do cover that material.” (Transcript of Proceedings at page 32).

He explained that the placement of cover worked to prevent any movement of the cargo. [ 9 ] Mr. Martin testified that when it is necessary to cover loads he uses chicken wire, estimating that it takes about a half hour to

install. He said that the chicken wire did not have to be removed to offload the cargo, which made it the cover of choice. [10] Mr. Kennedy was also carrying oversized No. 1 steel which he said was their heaviest grade. [11] Constable Hussey testified that when he saw the loads carried by the appellants he believed that they should be covered. Hecontacted an officer with the Department of Transportation for clarification of the legislation, a practice he employs for sections of thelegislation that he is not familiar with.

The officer took photos of the scrap metal which he sent to the official and these were enteredinto evidence at the trial. [12] The provincial official testified that Constable Hussey contacted him respecting a vehicle transporting a load of scrap materialbecause “he was concerned about how the load was contained and if it needed to be covered” (Transcript of Proceedings at page 19). Constable Hussey sent him pictures of the load and he explained to him that “any portion of the load that’s not contained by the vehicleor container has to be covered …” (Transcript of Proceedings at page 19). [13] Mr. D.

Drew, Operations Manager for the recycling enterprise, explained that shredded scrap metal is less than 40 millimetres. He said that 90 percent of the metals in their scrapyard were No. 1 steel which could weigh up to “15, 16, 17 tonne[s]” (Transcript ofProceedings at page 43). He did not know that subsection 31(1)(

a) of the Regulations had been amended to remove “shredded” fromscrap metal that had to be covered. He confirmed that scrap metal was being transported on the day in question. ANALYSIS [14] It is asserted that the trial judge failed to apply a pragmatic approach to statutory

interpretation, permitting him to go beyondthe plain reading of the statute to achieve a meaning consistent with a purposive reading of the law as a whole (Archean Resources Ltd. v.Newfoundland (Minister of Finance), 2002 NFCA 43, at paragraphs 19, 78 and 79). [15] The respondent states that the trial judge conducted his statutory analysis in keeping with the Newfoundland and LabradorCourt of Appeal instruction in Archean Resources.

The trial judge considered the legislative purpose being the safety of users ofhighways, the mischief to be addressed, i.e. the containment of materials under transport, and the legislative history of securing metalcargo. Following his analysis of the evidence presented to him, the reasonable

interpretation of subsection 31(1)(

a) of the Regulationswas found in a plain reading of its text. [16] No evidence was led to establish that pieces of No. 1 steel always remained “confined” during transportation, within themeaning of the provision, or that such cargoes have never dislodged on a highway. There was no evidence led as to the practices of othercarriers in the Province or to a common industry definition of what constitutes scrap metal. [17] The trial judge in his oral reasons considered the Regulations as a whole, noting that different provisions addressed thetransportation of larger objects, including vehicles. He considered the wording of the previous subsection 31(1)(

a) and was not satisfiedthat the removal of the qualifier “shredded” could only be explained as an error, noting: “[T]he newer legislation has the broadercategory of scrap metal, whereas the previous legislation has the more specific subcategory of shredded scrap metal.” (Oral decision atpage 65 of Transcript of Proceedings). There had been evidence that the Province no longer had a scrap metal shredder and the trialjudge opined that this may have resulted in the change.

He reasoned: “One could certainly imagine the difficulty of having to conductinspections to make sure that the entirety of the load in one of these vehicles complies with the particular legislation.” (Oral decision atpage 66 of Transcript of Proceedings). [18] The trial judge correctly concluded that the only reasonable

interpretation was to apply the language used by the legislature. Itwas not for the court to order that only scrap metal of 40 millimetres or less needed to be covered to protect users of the roadways in theProvince; nor was it within the trial judge’s expertise to exempt No. 1 steel scrap metal cargoes with the potential safety repercussionsfor the public. Analysis of the legislation in accordance with the rules of statutory

interpretation did not support such an

interpretation. The Newfoundland Court of Appeal in Archean Resources explains the pragmatic approach and the role of “plain meaning” analysis atparagraph 24: 24 I do not propose to analyze all of the Supreme Court and other appellate decisions that have been cited. It is sufficient to say that Iagree with counsel for the respondent in this case that those decisions that are often cited as supporting an exclusively plain meaningapproach to

interpretation can generally be explained as involving situations where reliance on “plain meaning” is expressed as aconclusion as to meaning only after considering other interpretive sources such as legislative purpose, the mischief to be addressed,context and legislative and social history. “Plain meaning” becomes a euphemism for “the only reasonable

interpretation” after the firstimpressions flowing from the words used have been tested against other indicators of meaning. As McLachlin J. observed in OpetchesahtIndian Band v.

Canada (1997), (SCC), 147 D.L.R. (4th) 1 (S.C.C.), at pp. 22-23, “a court should only be satisfied withthe plain meaning of a statute where that meaning is clear and consistent with a purposive reading of the statute as a whole.” [Emphasis in Original.] [19] The merits of an exception for the transport of No. 1 heavy steel scrap metal and indeed all scrap metal loads is a considerationfor the Government with its constitutional authority over and expertise in the realm of highway safety.

The Act provides ministerialauthority to regulate the “securing of loads carried by motor vehicles and trailers” (subsection 187(1)(bb) of the Act). The specific sizeand composition of scrap metal which needs to be covered relates to a specific material and is not a broad category, by its nature capableof development to meet changing circumstances. This is explained by Cromwell J. in R. v. W. (D.L.), 2016 SCC 22, at paragraph 61: 61 The same underlying principle is at work in Perka v. R., (SCC), [1984] 2 S.C.R. 232 (S.C.C.).

The Court had todetermine whether the definition of the scientific term “cannabis sativa L.” should refer to its meaning at the time the statute was passedor at the time the infraction was committed. The Court adopted the former approach. The Court noted that not all terms in all statutesmust always be confined to their original meanings. Broad statutory categories are often held to include things unknown when the statute

was enacted and words in constitutional documents must be capable of growth and development to meet changing circumstances. However, that interpretative approach is most often taken when the statutory language is broad or open-textured. But where Parliament has used “specific scientific or technical” terms, it would “do violence to Parliament’s intent to give a new meaning to that term”: p. 265. [ 20 ] I conclude that the trial judge correctly interpreted subsection 31(1) (

a) of the Regulations . [ 21 ] I further find that the trial judge did not make a palpable and overriding error in the application of this provision to the facts presented in evidence. There was no dispute that scrap metal was being transported on the day in question. There was no legislative exemption for scrap metal comprised of No. 1 steel. ORDER [ 22 ] In the result, I order that the appeals against conviction are dismissed. _____________________________ Deborah J. Paquette Justice