R v. CAMIONNAGE DOUG ZACHARIAS, 2011 QCCQ 1693

JA0791 Director of Public Prosecution c. Camionnage Doug Zacharias ltée 2011 QCCQ 1693 COURT OF QUEBEC CANADA DISTRICT OF PONTIAC TOWN OF CAMPBELL'S BAY No: 555-61-000743-109 DATE: March 7, 2011 ______________________________________________________________________ PRESIDING BY CHRISTINE AUGER, MAGISTRATE JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF PUBLIC PROSECUTION PROSECUTOR v.

CAMIONNAGE DOUG ZACHARIAS LTÉE DEFENDANT ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A truck belonging to the Defendant company was intercepted by an officer on the 24 th of September 2008, in the village of Otter Lake early in the morning and later charged with the infraction with the following infraction, to wit: 463.

No owner or lessee of an outsized vehicle or operator subject to Title VIII.1 who is responsible for an outsized vehicle may allow that vehicle to be driven before he has obtained a special permit issued for that purpose. Formalities. The special permit shall be issued on the conditions and subject to the formalities established by regulation and on payment of the duties and fees prescribed by regulation.

However, no special permit may be issued by the Société except to authorize the driving of a vehicle that is outsized because of its construction, the addition of equipment, its forming a road train, or of the indivisible nature of its load. Exceptional circumstances. Where the applicant cannot meet the conditions referred to in the second paragraph and where justified by exceptional circumstances, a special permit may be issued by the Minister under

section 633 on the conditions and on payment of the duties fixed by him. 1986, c. 91, s. 463; 1987, c. 94, s. 63; 1990, c. 83, s. 165; 1993, c. 42, s. 14; 1998, c. 40, s. 99 ; 2008, c. 14, s. 54 . [ 2 ] The Crown evidence shows that the outsized vehicle of the Defendant company was weighed by means of portable scales and was found to have a total mass weight of 33,500 kg., exceeding the permitted weight of 25,250 kg.

[ 3 ] The driver of the truck was Cedric Judd and he was duly identified by the intercepting officer. The truck has a total mass weight of 9 200 kg and is therefore considered to be an outsized truck, duly identified by the registration certificate remitted by the driver. [ 4 ] The truck was carrying a load of sand from the sand pit to a client in Otter lake. The truck caught the attention of the officer and appeared to be overloaded. The truck was weighed with a Haenni scale, model W1-101, with six portable scales, identified in the infraction report.

No special permit of excess weight had been issued for the vehicle in question. The officer reports a total mass weight of 33,500kg. [ 5 ] The scale report is filed into as Crown evidence and contains all of the evidence required, naming the category of the vehicle, the weight result on all axels, the total mass weight permitted and the total mass weight result, the make and model of the scales, the conformity and approving authority and the numbers of the portable scales.

As well, the evidence suggests that the scales were used in accordance and in conformity with the Order of the Minister of Transport dated 22 May 1990 respecting the approval of weigh scales [1] in force at the time of the infraction. [ 6 ] In his defence, the duly authorized representative of the Defendant Company, Douglas Zacharias, maintains that is it physically impossible that the truck weigh 140% of its capacity. He is the one who loaded the truck. He takes issue with the reliability of the wheel-load scales. [ 7 ] The Court heard Mr.

Zacharias's very technical argument as to the capacity of his dump box at sixteen cubic yards. In addition, he adds that the truck in question does not weigh 9 200kg as stated in the infraction report, but rather 10,400kg. From his experience, he estimates visually that the truck was carrying its maximum load, which is 16,000 kg, for a total maximum weight of 26,400kg. He states in his testimony that in the past, he has witnessed a tolerance on the part of the weighing officers.

He submits that under no circumstances his truck could weigh in at 33,500 kg. [ 8 ] The Crown attorney submits that it has discharged its burden of proof to the effect that the scales used where duly approved scales and they were used in conformity with the Order. DISCUSSION [ 9 ] Article 1 (5) of the Order of the Minister of Transport [2] , reads as follows: 1. "The Minister of Transport approves the following devices: (5) the wheel-load weigh scales listed in

Schedule V" …… [ 10 ]

Schedule V of the Order , refers to the wheel-load weigh scales make Haenni, model WL-101 , serial numbers 21502, 21503, 21504, 21505, 21506, 21507. It is precisely this make, model and serial numbers of the weigh scales that were used to weigh the truck belonging to the Defendant company. [ 11 ] In the Crown evidence, the weighing officer attests to having used the weigh scales in conformity with the Order . The pertinent sections of the Order are 15.2 and 15.3 as they refer to the use of WL-101 and WL-103 wheel load scales. These sections read as follows: 15.2 "In order to weigh a road vehicle or combination of road vehicles using wheel-load scales listed in

Schedule V, the operator shall weigh each category of axles in accordance with

section 15.3." 15.3 " In order to weigh a category of axle, the operator shall: (1) have the road vehicle or combination of road vehicles move forward so that each of the wheels of a category of axle is supported by the wheel-load scale; (2) have the road vehicle or combination of road vehicles come to a complete stop; (3) take the reading of the weight on the dial or display of each wheel-loaded scale. The total loaded weight of a road vehicle or combination of road vehicles shall be determined by the sum of the weight readings for each of the wheels of an axle category supported by the wheel-loaded scale.

The total loaded weight of a road vehicle or combination of road vehicles shall be determined by the sum of the axle loads." [ 12 ] The report of the officer filed into as evidence makes mention of the weight in detail as the sum of the axle loads, the whole in conformity with the Order. [ 13 ] The Court of Appeal, in the matter of Québec (Procureur general) c. Transport Courchesne Inc. [3] , the question addressed was the evidence required on the part of the Crown as concerns the weigh scales. The dissidence of Justice Lebel was later reiterated and confirmed by the Supreme Court [4] in the appeal.

Essentially, Justice Lebel stated that insofar as the Crown was able to establish that the measuring device was an approved device by the Order , the Crown had discharged its burden. [ 14 ]

Section 467 addresses the question of the probative value of the evidence of the Crown as to the measuring device, to wit:

467. The axle load and the total loaded mass of a road vehicle or combination of road vehicles are determined by means of devices designed for that purpose, approved by the Minister of Transport and used in the manner he determines. Proof. The fact that a measuring device has been approved by the Minister of Transport and used in the manner he has determined is proof, in the absence of any evidence to the contrary, that the device has determined accurately the mass under a wheel, the axle load or the total loaded mass at the time the offence is alleged to have been committed. ( underligning by the undersigned). [ 15 ] Thus,

section 467 states that once the measuring device has been approved and that it is used in conformity with the Order , the resulting measure is presumed to the accurate as to the measure of the mass under a wheel, an axle load or total loaded mass. This presumption can be rebutted by evidence to the contrary. [ 16 ] The Defendant must furnish an explanation that is logical, credible and probable so as to create a reasonable doubt as to the commission of the infraction. [ 17 ] Essentially, the Defendant explains that the measured weight is too heavy for the truck and it is unable to be charged to that capacity.

The Crown evidence is very close to this finding. The officer, in fact, visually estimated the truck to be overloaded and confirmed his visual finding by a measurement that confirmed this finding. [ 18 ] Although the Defendant loaded the truck, he was not on site when the driver was intercepted by the officer and was not witness to any of the events that took place. The only evidence that can be evaluated is the fact that the Defendant loaded the truck himself. [ 19 ] The Court is of the opinion that the Defendant's version does not raise a reasonable doubt.

To adhere to the Defendant's position, the Court would have to conclude that the police officer did not make a visual finding as to the presence of an overloaded truck on the one hand and that the approved scales measured with a discrepancy of 8,250 kg. The evidence presented to the Court does not suggest such a finding of fact. FOR THESE REASONS, THE COURT: DECLARES the Defendant guilty of the infraction as charged.

IMPOSES a fine of 900$ plus costs to be paid within a delay of 90 days. __________________________________ CHRISTINE AUGER MAGISTRATE JUSTICE OF THE PEACE Me Stéphane Rolland Prosecutor Defendant Date of hearing: February 1 st , 2011