R. v. Metric Excavating, 2016 ONCJ 575

ONTARIO COURT OF JUSTICE (Provincial Offences Appeal Court) CITATION: R. v. Metric Excavating , 2016 ONCJ 575 DATE: 2016-09-22 COURT FILE No.: 2860 999 14 3541 00 BETWEEN: HER MAJESTY THE QUEEN — AND — METRIC EXCAVATING Before Justice F. Javed Heard on September 21, 2016 Reasons for Judgment on Appeal released on September 22, 2016 R. Vanderlinde ............................................................ counsel for the appellant (Crown) T. Rathwell .................... counsel for the respondent Metric Excavating (Defendant) F. JAVED J.: A.

Introduction [ 1 ] This is a crown appeal from a decision of his Worship Justice of the Peace Griffiths on December 3, 2015 in which the defendant was acquitted of the offence of driving a heavy vehicle on a prohibited highway contrary to s.20.1 of the City of Oshawa, Traffic By-law 79-99, as amended, contrary to the City of Oshawa By-Law, 79-99 as amended,

section 24.2. [ 2 ] On September 21, 2016, I heard oral submissions and ruled that I was allowing the appeal and ordering a new trial as in my view, the learned Justice of the Peace erred in finding that the prosecution bore the legal and evidentiary onus to prove the offence charged. I indicated that I would provide the parties with fulsome reasons for my ruling. These are my reasons. [ 3 ] The appellant contends that his Worship erred in the following ways: (

i) by speculating on a due diligence defence when the evidentiary basis for the defence was lacking; (ii) by reversing the onus on the Crown to prove that the defendant had the requisite mens rea when s.47(3) of the Provincial Offences

Act (“POA”) places this onus on the defendant and (iii) by placing reliance on s.134(3) of the Highway Traffic Act (“HTA”) which requires a mens rea component when the offence charged did not contemplate one. [ 4 ] I would give effect to all of the above grounds. B. The Factual Background [ 5 ] There is no dispute about the facts underlying the circumstances of the offence. [ 6 ] Briefly, on August 20, 2015, Officer Carson Ryan testified that he observed a dump truck with an attached trailer proceed eastbound on Columbus Rd. from Simcoe St. N. in Oshawa. The truck made a right hand turn onto Columbus Rd.

It proceeded to reverse the trailer onto Brookfield Court and then turned around and proceeded back westbound on Columbus Rd. E. to Simcoe St. N. then exited Columbus Rd. East. The city had received noise complaints from the 407 highway construction truck drivers who were using residential streets improperly. [ 7 ] He did not know why the truck was on the street as it was not immediately stopped.

Indeed, the parties agreed that the officer had no lawful authority to pull over and investigate the driver. [ 8 ] Instead, a subsequent investigation based on the license plate resulted in the operator being charged with bylaw 79-99 which prohibits such actions unless an exception applies. [ 9 ] The parties don’t dispute that based on the evidence of Officer Ryan and the various exhibits filed, the actus reus of the offence had been proven. [ 10 ] The respondent didn’t call any evidence. C.

The Decision at Trial [ 11 ] The respondent’s position at trial was that since Officer Carson didn’t immediately stop the defendant, he couldn’t know why he was on the street and whether it was for a lawful purpose as contemplated by the exceptions. [ 12 ] The appellant contended that the above position was speculative as no evidence was called. [ 13 ] The defendant was acquitted on December 3, 2015. On February 11, 2015, the court released written reasons.

In acquitting the defendant, the court said the following at paragraph 6(viii) of the reasons: (viii) However, in my opinion, that stated observation of the officer does not show that the fact of the movement of that truck on that day on Columbus Road is determinative evidence of a blatant or knowing violation of the posted prohibited sign. At best, it is speculation and it cannot be considered that the actions of the heavy vehicle on that day is a confirmation of another abuse by a commercial truck, because of a prior complaint received by the officer. (my emphasis added) D.

Analysis [ 14 ] In my view, the learned Justice of the Peace erred by interpreting the bylaw to require the prosecution to prove a fault

requirement (or mens rea) component when one doesn’t exist. [15]

Article 20 of bylaw 79-99 of the Corporation of the City of Oshawa sets out the offence. It is a strict liability offence. [16] His Worship appeared to rely on section 134(3) of the HTA, which creates the offence of driving on a closed “highway” whichimports a fault requirement and protects those who unintentionally disobey road signs. Importantly, subsection (3) refers to “signs ortraffic control devices” that have been posted or placed under subsection (2), which relate to closures by the police.

They do not relate tocity bylaws. [17] With great respect to his Worship, his reliance on s.134(3) of the HTA, while understandable in the context of this case, wasmisplaced. The court was persuaded by the submission of the respondent that there was a gap in the legislation that prevented an officerto investigate the reasons behind why a person may be on the street in the first place.

I have sympathy for this position but as I willexplain below, s.134(3) of the HTA did not apply and it was not for the court to read this into the bylaw. [18] Even if it applied, on the record at trial, it did not advance the Respondent’s position. There was no evidence that a police officercaused the

section of Columbus Road to be closed off pursuant to the provisions of the HTA. Instead, the restriction was through abylaw. The bylaw acts as a strict liability offence, which provides that once the prosecution meets its burden to prove a prima facie case,the burden shifts to the defendant to show it took reasonable steps, or put differently, acted with diligence. See R. v. Sault St. Marie(City), (1978), (SCC), 3 C.R. (3d) 30 (SCC). Here, there was no dispute that a prima facie case had been made outthrough the testimony and the various exhibits. The issue was whether the exceptions contemplated in

article 20.1, namely, whether the“highway” was being used for deliveries, removal from any premises abutting the highway or to a privately owned vehicle driven to andfrom its owner residence” applied. The fact that Officer Carson couldn’t have legally ascertained this by stopping the defendant is of nomoment because the onus is on the defendant once a prima facie case has been met. [19] Here, there was no evidence that any exception(

s) applied except through submissions from counsel for the respondent about theissue who argued that the operator could have been lost or was making a delivery. Clearly, submissions do not constitute evidence. The defendant did not advance a due diligence defence and the court speculated about the intentions of the defendant relying on theprovisions of s.134(3) of the HTA. It did so when s.134(3) didn’t apply and even if it did, there was no evidentiary basis to support itsapplication. With respect, this was in error in law, which cannot be cured on appeal. [20] In submissions before this court, Mr.

Rathwell repeated his position that the bylaw is ambiguous and operates unfairly as itdoesn’t confer authority on the enforcement officer to stop a vehicle to determine why it’s on the impugned road. The ambiguity shouldbe resolved in his client’s favour. I cannot agree with this submission. [21] As appellate courts have consistently stated, the basic rule of statutory

interpretation is that the words used are to be read in theirentire context in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention ofParliament: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 1; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21; and R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 16. Ifpossible, every part of the provision should be assigned meaning: Sullivan, at p. 210; and Hutchinson, at para. 16. [22] A second principle of statutory

interpretation is the presumption of consistent expression. This principle holds that legislaturesuse language carefully and consistently so that, unless the contrary appears, the same words have the same meaning within a statute anddifferent words have different meanings: Sullivan, at pp. 214-215; and R. v. Zeolkowski, (SCC), [1989] 1 S.C.R. 1378, atp. 1387. Accordingly, if Parliament omitted something from

an Act, a court cannot add, amend, and by construction, make up for anylanguage, which is left out of a statute. See Stadnic v. Bifrost (Rural Municipality) (MB CA), [1929] 2 D.L.R. 703(Man. C.A.) [23] Without ruling that there is some ambiguity in the bylaw, a position the Crown disputes, the bylaw must be purposivelyinterpreted and read in context. Here, the plain meaning meant that once it was established that the defendant disobeyed the official sign(which was not in dispute), the onus fell on him to point to an exception, if any. He did not do so. E. Conclusion

[ 24 ] For the foregoing reasons, pursuant to s. 121(

b) of the POA, the appeal against acquittal is allowed and a new trial is ordered. I will decline to enter a finding of guilt given that the respondent may wish to advance a due diligence defence on a correct

interpretation of the bylaw. A copy of these reasons should be appended to the court record. Released : September 22, 2016 “F. Javed J.”