Her Majesty the Queen - v. -, 2016 SKPC 171

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 171 Date: December 13, 2016 Information: SOTI 7974417 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bryden Construction Transport Co. Inc. Appearing: Mr. T. Healy For the Crown Mr. N. McPhee For the Accused JUDGMENT I. J. CARDINAL , J [ 1 ] On December 3, 2015, Adam Statkewich, an employee of Bryden Construction Transport Co.

Inc. (Bryden) was driving north on Highway 6, south of Melfort, Saskatchewan, operating a power unit, hauling what has been described as a large low boy trailer with a D6T dozer (dozer) on it. As he approached the weigh station just south of Melfort, the lights were on, indicating that he was to turn into the scale to be weighed and inspected as required by law. He did so at approximately 7:30 p.m. Sorin DeGbon, a Highway Traffic Authority Officer, conducted the inspection.

Bryden produced a valid permit, being Single Trip Permit #1283929 (Exhibit P-2) (permit) issued by the SGI permitting office allowing the last axle group a “ permit weight ” of 18,000 kilograms (kg) rather than the “ legal primary ” weight of 17,000 kilograms (kg). However, that axle group weighed 26, 610 kg, and Bryden was issued a

summary offence ticket information for committing the offence of “ exceeding the weight specified in permit #1283929 on a tandem axle of 18,000 kg ” , contrary to section 38(1)(

c) of The Highway and Transportation Act, 1997 , S.S. 1997, C. H-3.01 . ( Act )

[ 2 ] During the inspection, the power unit and its load were weighed, and weigh ticket 1899 (Exhibit P-3) (weigh ticket) issued, indicting the weights recorded for each of the axle groups. Bryden does not take issue with the weights as noted in the weigh ticket or the permit, but argues:1. The charge is incorrect as permit #1283929 was improperly granted by the issuing agency. 2. Even if the charge is correct, due diligence was exercised and they are entitled to an acquittal. FACTS [ 3 ] Much of the evidence is not in dispute.

This unit, from the front of the power unit, to the back of the trailer, has seven (7) axles. Exhibit P-6 is a representative photo whereon the officer indicated seven axles and testified the Bryden power unit, jeep and trailer axle configuration looked similar to this photo, but did not have the last two axles as illustrated. As well, Exhibit P-7 is a representative photo of the trailer which shows two axles, each with eight (8) wheels.

Bryden filed photos of the actual trailer and dozer in question (Exhibits D-2 and D-3) but they did not show the entire unit from front to back, only the last two axles at the back of the trailer and the dozer sitting on the trailer. It is these last two axles that are in issue. [ 4 ] The weights of the various axles in the weigh ticket begin from the front of the vehicle and move towards the back of the trailer. The first is the steering axle, referred to as Axle 1 Steering, which is a single axle only and weighed 5,960 kg.

According to Officer DeGbon, the next set of axles are in tandem, and the two axles together are referred to as Axle 2 Tandem in the weigh ticket. Tandem axles, although they are two separate axles, they are not weighed separately, but together and the resulting weight is recorded. In this case it was 12, 010 kg. The next set of two axles was also in tandem, and the two axles together are referred to as Axle 3 Tandem in the weigh ticket, and weighed 10,920 kg.

The weights of Axles 1 Steering, Axle 2 Tandem and Axle 3 Tandem as noted in the weigh ticket are not in issue. [ 5 ] The final set of two axles, according to the officer, are in tandem, are referred to as Axle 4 Tandem in the weigh ticket, and weighed 26,610 kg. Each of the axles had eight (8) wheels, for a total of sixteen (16) wheels. However, the officer was clear that the number of wheels is not relevant to the classification of whether a set of axles is considered a tandem axle grouping or something else.

Rather, the classification of the axle group is determined by measuring the distance between the center of one axle to the centre of the next axle. [ 6 ] According to the officer, on any tandem axle, the legally allowed weight on a primary highway such as Highway 6, is 17,000 kg, but one can exceed that weight if they have a permit. Bryden had a valid permit (Exhibit P-2) which allowed Axle 4 Tandem to weigh 18,000 kg. [ 7 ] Bryden obtained this permit by telephoning the SGI permit office on December 3, 2016 at approximately 4:40 p.m, , providing the information to them, and having the permit issued.

The telephone conversation between them was transcribed and was filed as Exhibit P-4. The representative for Bryden, who did not testify, asks for a permit and provides the information requested to the SGI representative. He tells him the plate number (770 CDC), who it is registered to (Bryden Construction) and that he is hauling a D6T dozer. SGI asks how many axles, and the Bryden representative counts out loud: “ It is one, two , three, four, five, six, seven.

Seven. ” He confirms a 24 hour permit is sufficient. [ 8 ] When asked details about the route, the Bryden representative tells them it is going from four miles south and one and a half west of Plunkett and ending up at a location three miles east of Arborfield. The route is described by the Bryden representative as “ Township road 334, 365, 16, 6, 3 and 23 ” . SGI asks how far are you on 365 and Bryden responds “ We are four miles on 365 ” . SGI asks “ And what are you on the grid, two? He responds “ one and a half ” . SGI states they will put two. [ 9 ] The details continue.

Bryden advises, when asked, that the width is 3.8, the length 26.5, and the height 4.6. The caller asks for the axle weights and Bryden responds: Okay, I ’ ll get 5,500 on the steering.

15,500 on the truck. 17,500 on the jeep. And the back end is a 16 wheeler and that’s 18,000 on it. [ 10 ] The SGI representative acknowledges each weight by murmuring. At no time does either SGI or the Bryden representative mention kilograms or meters, just the numbers. SGI tells the Bryden representative that it will cost $145.04, and, after some joking between them, the Bryden representative pays by credit card the requested sum. [ 11 ] The permit contains all of this information. It shows the “ maximum legal dimensions (

m) and immediately below it, the “ permit dimensions (m) ” , indicating those as outlined above by the Bryden representative. Similarly, under the heading “ Configuration Detail ” the information about the axle weights given by the Bryden representative is shown. Although the axle groupings have different names in the permit as compared to the weigh ticket, I am satisfied they refer to the same groups. The first axle grouping in the permit is referred to as the “ Winch Truck Tractor ” , which has a “ legal primary weight ” of 5,580 kg, and a “ permit weight ” of 5,500 kg, one axle and two wheels.

No axle spread is indicted, no doubt because it is a single axle. I find this is what is referred to as the steering axle in the evidence, and is referred to as Axle 1 Steering on the weigh ticket, which weighed 5,950 kg. [ 12 ] Beneath that is the next type, indicated again as “ Winch Truck Tractor ” which has a “ primary legal weight ” of 17,000 kg, a “ permit weight ” of 15,500 kg, two axles, eight wheels and an axle spread of 1.50 m. If one were looking at the power unit, or what most of us think of as the cab of the truck, this would be the two axles on the back of it.

I find this is what is referred to as Axle 2 Tandem in the weigh ticket, which weighed 12,010 kg. [ 13 ] Next the permit configuration detail refers to “ Jeep ” which has a “ legal primary weight ” of 15,000 kg, a “ permit weight ” of 17,500 kg, two axles, eight wheels, and an axle spread of 1.5m. I find this is referred to as Axle 3 Tandem in the weigh ticket which weighed 10,920 kg. [ 14 ] The last type indicated is “ Semi-trailer ” with 1 axle group, a legal weight of 17,000 kg, a permit weight of 18,000 kg, has two axles, sixteen wheels, and an axle spread of 1.5 m.

I find this is referred to as Axle 4 Tandem in the weigh ticket which weighed 26,610 kg. [ 15 ] I note the permit refers to “ Legal Primary (kg) ” which I find is the legally allowed weights for a primary highway as outlined in the legislation. Bryden agrees that Highway 6 is a primary highway as defined in the legislation.

Thus, it is not difficult to understand that the permit weigh for Axle 4 Tandem was 18,000 kg, but since it weighed 26,610 kg, Bryden exceeded the permitted weight by 8,610 kg. [ 16 ] Once an axle is overweight, the vehicle and its cargo cannot be moved until a new permit is issued for the weight indicated, or other arrangements made such as adjusting the load or bringing other equipment in to move the load. Thus, Bryden called SGI that same date at 9:12 p.m., and asked for, and was granted, permission to revise the existing permit, which is marked as Exhibit D- 1, permit #1283929 revised.

It shows the weight of 26,610 kg on the semi trailer, or Axle 4 Tandem. The weights of the other three axle groups were also revised to reflect each of their weights as indicated in the weigh ticket. Once the revised permit was issued Bryden was able to proceed with moving the load that same date. ANALYSIS Issue I: The permit was improperly granted [ 17 ]

Section 36 of the Act states:

36(1) No person, without a permit, shall operate a vehicle that exceeds the prescribed or ordered weight if that person intends to operate a vehicle on a public highway where the vehicle has a weight or is carrying on any axle or wheel of that vehicle, a gross weight in excess of the maximum gross weight set out in the regulations … [ 18 ] Bryden points out that the permit issued refers to “ axle groups ” or “ axles ” and not to tandem axles as the officer testified or as indicated in the weigh ticket.

Further, they submit the legislation itself creates ambiguity as section 16(5) of The Vehicle Weight and Dimension Regulations, H-3.01 Reg 8 provides that “ the maximum gross weight for a single axle or any axle within an axle group or axle unit is … 9,100 kilograms on a primary highway. ” Yet, section 16(8) allows for “ a maximum gross weight of 17,000 kilograms for a tandem axle group ” .

Bryden argues this tension between two different weights should be resolved in favour of Bryden such that they did not need to get a permit for 18,000 kg because lawfully the axles could have a single weight of 9,100 kg each or a combined weight of 18,200 kg. They may be charged under another

section for exceeding the weight, but not for an offence under

section 36 of the Act for exceeding the weight in the permit. [ 19 ] This argument holds no merit. The axle in question is clearly a tandem axle group, whether one calls it a tandem axle group, or a tandem axle as the officer did in his evidence, or refers to it as “ Axle 4 Tandem ” as the weigh ticket does, or refers to it as a “ semi-trailer ” as the permit does. All refer to the same thing. A “ tandem axle group ” is defined in

section 2 of the Regulations as meaning: an axle group of two axles: (

i) whose centres are not less than one metre and not more than 1.85 metres apart; and (ii) that is not part of a tridem or multiple axle group. [ 20 ] The officer testified he measured the distance, not between the centres, but from the front of the first rim to the front of the second rim, and it was 1.43 m, as illustrated in Exhibit P-7. He testified it is easier to measure this way than try to determine the centre of the axles. While it may be preferable to measure from the centre of each axle as the legislation stipulates, it seems as if this method is accepted as it was not challenged nor argued.

I find it was a tandem axle group as defined in the legislation. These axles are not considered single axles for the purposes of the allowable weight nor are they some other type of grouping.

They are part of a tandem axle group and together have an allowable weight of 17,000 kg pursuant to section 16(8) of the Regulations unless a valid permit allows the weight to exceed that outlined in the Regulations . [ 21 ] Further, this argument overlooks the evidence of Bryden in its discussion with SGI concerning the issuing of the initial permit and with respect to the two witnesses who testified on behalf of the company.

Clearly the Bryden representative who called SGI believed they needed a permit, otherwise why call SGI and provide all of the detail noted, and pay $145.04 for a document the company does not need. No one from Bryden testified that they believed the weight was measured on the single axle allowing for 9,100 kg on each for a combined weight of 18,200 kg.

During this discussion both SGI and Bryden were speaking the same language and there is no confusion by Bryden ’ s representative nor is clarification sought by either party as to the axles or their configuration. [ 22 ] Additional support is found when Barry Bryden called SGI after the inspection and said he had to make an adjustment of weights on permit #1283929. This conversation was transcribed and marked as Exhibit P-5. He wanted the steering changed to 5,960 but after telling SGI the tire size, they told him he could permit to 5,580, legal weight, so it was adjusted to 5,580 and confirmed by SGI.

Barry Bryden states “ Then 1210. SGI says: “ So you mean 12,010? ” and he agrees that is correct. Mr. Bryden then states “ 11,000 on the jeep ” . He then states “ And 26,610 on the 16 wheeler ” . These changes were made to the permit weights, as illustrated in the revised permit, Exhibit D-1. [ 23 ] I find the permit was properly granted as this was a tandem axle group as defined in the Regulations . The weight stipulated in the Regulations is not relevant in so far as the permit is the governing authority.

It allowed Bryden to exceed the legislated maximum gross weight of 17,000 kg for a tandem axle group on a primary highway. However, it only allowed Axle Tandem 4 to have a weight of 18,000 kg, and they exceeded that weight by 8,610 kg. [ 24 ] I find the Crown has proven beyond a reasonable doubt that Bryden committed the actus reus of the offence.

Issue II: Is the defence of due diligence made out? [25] Bryden submits they exercised due diligence in loading the equipment and attempting to place the load on the deckof the trailer in an effort to distribute its weight properly across the axle groupings. [26] The Act and its regulations are public welfare offences aimed at ensuring the proper transportation of goods that areproperly loaded so as not to damage property, notably the highways themselves.

This was expressed in R v Nickel City Transport(Sudbury) Ltd., (ONCA); 14 OR (3d) 113 by Tarnopolsky, J where he stated, in relation to the Ontario HighwayTransportation Act : The overall purpose of the legislation is to ensure that the weight on vehicles is distributed in a safe manner so as not to affect thehandling capability of the vehicles adversely, or to deteriorate the surface of the highways unduly. [27] It is well established that this is an offence of strict liability, wherein it is open to the accused to avoid a convictionupon proof on a balance of probabilities that he exercised due diligence. (See R. v.

Mannion Transportation Ltd. (1985), (SK KB), 31 MVR 246, 38 Sask R 152 (QB), Gerein J (as he then was) and more recently, R v Godenir, 2006 SKQB 481, at para 7.) [28] In determining if the defence of due diligence has been met, this passage from Nickel City Transport, supra, bearsrepeating: Having decided that the offence is one of strict liability, it is necessary to determine what standard of care should be expected from therespondent in order to ensure that the public interests which the statute seeks to protect are not compromised. In R. v.

Wholesale TravelGroup Inc., (SCC), [1991] 3 S.C.R. 154, 7 C.R.R. (2d) 36, Cory J. (as nearly as I can make out, a majority agreed on thispoint), explained the distinction between regulatory offences and true crimes, the purpose and role of regulatory offences in protectingthe Canadian public interest, and why placing the burden on the accused to show that he/she had exercised due diligence in thecircumstances was totally justified within the context of regulatory offences.

At pp. 219, 229 and 233, he made the following remarks: The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthinessin the same manner as criminal fault. . . . . . [T]hose who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the publicgenerally and must accept the consequences of the responsibility.

Therefore. . . those who engage in a regulated activity should. . . bedeemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among theseimplied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard ofcare. . . . . . [T]hose persons who enter a regulated field are in the best position [moreover] to control harm which may result, and they should beresponsible for it. . . . . .

The realities and complexities of a modern industrial society coupled with the very real need to protect all of the society and particularlyits vulnerable members, emphasize the critical importance of regulatory offences in Canada today. In this case, the interests at stake are to prevent operators with overweight loads on particular axles, from travelling on public highways,in order to protect these highways from deterioration and also to protect the travelling public from any danger caused by maldistributionof load.

For these purposes, a realistic standard must be set –one which the industry can be expected to achieve. It may be that thestandard could pose a significant inconvenience for the industry and impose a financial burden. However, no evidence of this was

presented. In my opinion, there is nothing to show that these are not appropriate costs which a company should be expected to incur if it decides to enter this regulated field. [ 29 ] The defence of due diligence was recently visited in Levi(City of ) v Tetreault , 2006 SCC 12 . The court reviewed strict liability offences and the defence of due diligence and stated: Accused persons would be allowed to exculpate themselves by proving affirmatively that they were not negligent, although the prosecution would be under no obligation to prove mens rea or a lack of due diligence ( Sault Ste.

Marie , at pp. 1313 and 1325). Under the approach adopted by the Court, the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances. Dickson J. described strict liability offences as follows: 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea ; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. [ 30 ] Having found the prosecution has proven the actus reus , the onus shifts to Bryden to prove on a balance of probabilities they either believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if they took all reasonable steps to avoid the overweight tandem axle group. [ 31 ] The evidence of the owner of the company, Brian Bryden, was of little assistance in establishing on a balance of probabilities that the company exercised due diligence on the date in question.

He was not present on this date when the dozer was loaded on the trailer and moved from the field near Plunkett to the scale at Melfort. He did not call and order the permit. His evidence is more of a general nature about his experiences of over 47 years in the equipment hauling business. He said the company had this particular dozer for about three years, having bought it in Edmonton, and moved it to southern Saskatchewan, but it had not been weighed by them at any time, until after this ticket was issued.

The weight of the dozer is outlined in the manual they have, but adding other attachments to the dozer affects the weight, although he did not say by how much. He said by having the 16 wheels it essentially allows them to double the weight on that axle group. He agreed in cross-examination that they had opportunity to weigh this equipment prior to December 3, 2015, but did not. [ 32 ] Mr.

Bryden ’ s evidence was composed mostly of excuses as to why the dozer was not weighed: when he bought the dozer in Edmonton there was no scale at the auction site; even on the trip from Edmonton to Saskatchewan it was not weighed because there were no scales around, or open, or big enough, or easy enough to get into as this is a big rig to move around; private scales are available but it depends on how much money you want to spend. His defence is really one of “ I did not weigh it so I don ’ t know what it weighed ” . He gave no instructions to his driver, Mr.

Statkewich, as to what to do to ensure the load was properly spread across the axles when moving it from Plunkett to Arborfield. His evidence is more in the way of how Bryden took general care, rather than exercising due diligence on the date in question. [ 33 ] Adam Statkewich, the employee hauling the equipment, was the person who was instructed by Bryden to move the equipment. He was the only one present at the field near Plunkett and he alone loaded the dozer onto the trailer. Bryden obtained a permit knowing the weight of the dozer on the tandem axle in question would exceed the legal limit of 17,000 kg.

Bryden provided the information to the permit issuer and stated the load on Axle 4 Tandem would be 18,000 kg, and the permit was issued based upon the information Bryden provided. [ 34 ] Both Mr. Bryden and Mr. Statkewich testified that there is no scale in the field where the equipment was loaded before it was transported from the Plunkett area to Melfort; nor was there a weigh scale until one reaches Melfort. Neither of them made any inquiries as to where they could weigh the equipment.

Instead, the equipment was moved hundreds of kilometres around Saskatchewan without ever making any effort to weigh it or ensure the weights on the axles were within the allowable weight for the road on which they were travelling.

[ 35 ] Nothing in the evidence shows that Mr. Bryden or Mr. Statkewich believed in a mistaken set of facts which, if true, would render their act innocent. When assessed against the standard of a reasonable man in similar circumstances, no one from Bryden took all reasonable steps to avoid Axle 4 Tandem from exceeding 18,000 kg as allowed by the permit. [ 36 ] Specifically on this trip, Mr. Statkewich personally loaded the dozer by driving it onto the trailer.

He was aware it had to be placed in a certain way, and in an effort to distribute the weight properly, he ensured the blade was not hanging into traffic and balanced it on the trailer. The nearest scale of which he was aware was close to Melfort.

He knew the importance of having his vehicle and load within the weight limits and that it was important to have this particular dozer on the deck of the trailer properly to ensure it was not overweight. [ 37 ] However, he made no inquiries, whether by telephone or otherwise, with any elevator or other private scale operator as to whether he could bring the equipment in to be weighed, although such places existed and were available along his route. He agreed in cross-examination he made no effort to locate a weigh scale.

He testified he had a rough idea of the weight of the dozer, but Barry Bryden would have a weight on it based on its specifications. Mr. Statkewich testified he had never weighed it nor was he involved in moving it other than on this trip. [ 38 ] None of the defence evidence ever reaches the point of being considered as due diligence. There seems to be an underlying attitude that it is unreasonable to expect equipment haulers to ensure sure their loads are properly distributed before they arrive at a weigh scale. Here it appears that Mr. Bryden and Mr.

Statkewich believed that since they loaded the equipment in a field, that they need not do anything further unless and until they were directed to pull into a highway scale. Essentially, Mr. Statkewich did a visual inspection of the load, decided it was fine, and drove it to Melfort. [ 39 ] Such inaction does not meet the standard of due diligence, and if allowed would set the standard too low. As noted in Nickle City Transport , supra : I raise these considerations because, on appeal, Sharpe Prov. Div.

J. found that the driver, after conducting a visual inspection of the distribution of the load, had exercised due diligence in the circumstances. The Crown argues that it should be the obligation of the commercial carrier to put in place a reasonable system to avoid a contravention of the law. According to the Crown, reliance on the shipper to load the vehicles properly was an abdication of this responsibility, and therefore incapable of amounting to due diligence as a matter of law.

The Crown further argues that the respondent was fully aware that a driver could not accurately determine weight distribution visually, and therefore should have provided some method of weighing the vehicles, such as providing portable scales, or making arrangements with the owner of a commercial scale. In short, the Crown submits that having known that they were being denied access to Newman steel, Nickel City should have put some measures in place in order to safeguard against violations of the Act . I am sympathetic to the Crown's arguments.

Allowing an operator to argue that, by conducting a visual inspection he has shown due diligence in the circumstances, would be setting the standard too low. It was admitted in evidence that a visual inspection is not a sufficient way to ensure that the weight of a particular load is properly distributed. Surely, in a defence of due diligence, a carrier should be expected to take effective steps to ensure that there is compliance with the statute. At the very least, a method of checking compliance before travelling should be used which is more reliable than a mere visual inspection.

Or, in the alternative, proof should be submitted to show that any efficient method is prohibitively costly to absorb or to pass on to the shipper. No such evidence was submitted and so no defence of due diligence was made out. Accordingly, the appeal is allowed, the acquittal is set aside and the conviction is restored. [ 40 ] As the Supreme Court of Canada stated in Levi, supra, : The concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law.

[ 41 ] It is interesting to note that the day after the

summary offence ticket information was issued, Mr. Bryden weighed this same equipment, being the power unit, trailer and dozer at a commercial scale that is directly across the highway from his shop. [ 42 ] I find that neither Adam Statkewich on behalf of Bryden, nor Bryden Construction as represented by Brian Bryden, took any reasonable steps to avoid exceeding the weight specified in permit #1283929. Simply loading it and believing the weight was distributed as best as Mr. Statkewich could tell, is not due diligence. A reasonable person in the same circumstances would have done more.

Given this highly regulated industry, the operators must ensure their loads are in compliance before they leave the job site and drive on the highway. [ 43 ] In this case, all Bryden had to do was to obtain a permit for a higher weight on the tandem axle in question when they phoned for the permit initially. Clearly they could have obtained it, as they did so after the fact. Having been in the business for many years, Bryden ought to have a much better grasp on the weight of equipment they are transporting around the province and be able to better articulate that to their employees and the permitting agency.

They ought to have a plan in place, such as portable scales, or other alternatives to ensure they are not transporting loads that exceed the legislated weights, or those outlined in a permit. I find it surprising, given their long history in this business, that they have no such plan. [ 44 ] I find the Crown has proven beyond a reasonable doubt that Bryden committed the actus reus of the offence. I find that Bryden has not proven, on a balance of probabilities, that they exercised due diligence. [ 45 ] On all of the evidence, I find Bryden Construction Transport Co. Inc. guilty of the offence as charged in

summary offence ticket information 7974417. ________________________ I.J. Cardinal, J