R. v. Little, 2015 ONCJ 52

ONTARIO COURT OF JUSTICE DATE: February 4, 2015 COURT FILE No.: Toronto Citation: R. v. Little , 2015 ONCJ 52 BETWEEN: HER MAJESTY THE QUEEN (Respondent) — AND — WAYNE LITTLE (Appellant) Before Justice Nakatsuru Heard on October 20, 2014 Reasons for Judgment released on February 4, 2015 E. Baker ........................................................................................... counsel for the Respondent J.

Stocker ................................................................................................ agent for the Appellant NAKATSURU J.: [ 1 ] This is a conviction appeal for the offence of Insecure Load-Commercial Motor Vehicle contrary to s. 111(2) of the Highway Traffic Act , R.S.O. 1990, c. H. 8 (henceforth referred to as the Act). Essentially this case is about whether the prosecution is required to prove the weight of the commercial motor vehicle when a defendant is charged with this offence. [ 2 ] For the following reasons, the conviction appeal is dismissed. A.

SUMMARY OF THE FACTS [ 3 ] On June 3, 2013, P.C. Anwar of the Ontario Provincial Police received a call from dispatch about a disabled tractor trailer stalled northbound on Highway 400 just north of Highway 401 in Toronto. He responded to the call and arrived on scene. He observed a tractor trailer disabled in a live left lane of the highway. It was loaded with big steel coils. One of the side posts of the trailer supporting the body was broken and the load was hanging approximately three feet out from the trailer. P.C. Anwar observed that it was not properly secured.

The strap that was holding the load was broken. The driver of the trailer identified himself with an Ontario driver’s license. That driver was the appellant. The trailer was then safely escorted off the highway. At that time, the officer laid the charge before the court by writing out a certificate of offence and handing it to the appellant. [ 4 ] The officer described the coils as being made of thin steel metal coiled into a big ring. He testified that he would guess the weight could be in the hundreds of kilograms. The coils were some four or five feet wide and a couple of feet high.

He agreed that this was his estimate and that it was not accurate. The trailer was a van type trailer, a closed one, and not a flatbed. The sides had what appeared to be tarp type material and there were supporting pillars to support the load. Metal chains were used to secure the load but he did not recall how many. One strap was broken and in the same row, the chain was broken which was why the load shifted to the right. However, only one coil was out of the trailer. [ 5 ] The appellant provided P.C. Anwar with his driver’s licence, ownership, insurance and CVOR.

The officer testified that the motor vehicle driven by the appellant was a commercial motor vehicle and that the appellant surrendered his permit for a commercial motor vehicle. The officer wrote the CVOR number on the certificate of offence that was given to the appellant.

[6] In cross-examination, P.C. Anwar was asked whether there was any documentation that he saw that supported a registeredgross weight of the vehicle. The officer testified that this was on the permit but he did not write down the detail about how much weightwas allowed on the motor vehicle. B. THE REASONS OF THE jUSTICE OF THE pEACE [7] His Worship Justice of the Peace Muraca convicted the appellant and imposed the set fine of $310. He found that theprosecution had proven all the essential elements of the offence under s. 111(2) beyond a reasonable doubt.

The Justice of the Peacerejected the defence submission that the Crown was required to prove that the vehicle was a “commercial” motor vehicle as defined in s.16 of the Act and that the vehicle weighed over 4500 kilograms. Although the certificate of offence alleged that the appellant committedthe offence of “insecure load commercial motor vehicle”, the Justice of the Peace held that it was the act proven that was relevant andnot how the offence was charged. He found on the evidence that the motor vehicle the appellant drove was a commercial motor vehicle. C.

POSITION OF THE PARTIES [8] The appellant submitted that the Justice of the Peace made a number of errors. I find that these submissions coalesce aroundthe basic submission that the Justice of the Peace erred in his

interpretation of the relevant statutory provisions and their application tothe evidence in the case. The appellant argues that the certificate of offence charged the appellant with the offence of “Insecure loadcommercial motor vehicle” and the prosecution was thus required to prove that the motor vehicle that the appellant was driving was acommercial one. The appellant argues that the prosecution particularized the offence as one involving a commercial motor vehicle asopposed to simply a motor vehicle. Consequently, following the case of R. v.

Saunders, (SCC), [1990] 1 S.C.R. 1020,the prosecution was required to prove that the motor vehicle was a commercial one as it is defined in the Act. [9] It is contended that one such requirement of the definition under ss. 16(1) of the Act is that the motor vehicle must be provento weigh over 4,500 kilograms. The appellant submits that the prosecution was required to prove beyond a reasonable doubt that themotor vehicle that the appellant was driving exceeded this gross weight.

Given that the prosecution failed to do so at trial the appellantshould have been acquitted. [10] The respondent submits that the offence under the Act is operating a motor vehicle with an insecure load. It is not anessential element of the offence that the prosecution prove that the vehicle was a “commercial” one. The distinction between acommercial motor vehicle and other motor vehicles is relevant only to the penalty that a court can impose. Higher fines may be imposedif the vehicle is a commercial one.

The fact that the certificate of offence noted the offence to be with respect to a commercial motorvehicle was not a particular that the Crown was required to prove. [11] Regarding ss. 16(1), the respondent submits that the weight of the commercial motor vehicle is an exception to the generaldefinition of a motor vehicle and pursuant to ss. 47(3) of the Provincial Offences Act, R.S.O. 1990, P. 33 the burden was on the appellantto prove this. [12] The respondent submits that there was an abundance of evidence that the appellant was driving a commercial motor vehicleas defined by the Act.

Thus, the Justice of the Peace made no error in convicting him. D. analysis I. statutory framework [13] The relevant statutory provisions are found in the Act and the Provincial Offences Act. To begin with, the offence that theappellant was charged with is found in ss. 111(2) of the Act which states: (2).

No person shall operate or permit to be operated upon a highway a motor vehicle that carries a load or draws a vehicle that carries aload unless the load is loaded, bound, secured, contained or covered so that no portion of the load may become dislodged or fall, leak,spill or blow from the vehicle. [14] Subsections 111(4) and (5) of the Act provide the penalties for violating that section: (4). Every person who contravenes this

section or a regulation made under subsection (3) is guilty of an offence and on conviction isliable to a fine of not less than $100 and not more than $200 and, in addition, his or her driver’s licence issued under

section 32 and theperson’s permit issued under

section 7 may be suspended for a period of not more than sixty days. (5). Despite subsection (4), every person who contravenes this

section or a regulation made under subsection (3) is guilty of an offenceand, if the offence was committed by means of a commercial motor vehicle within the meaning of subsection 16 (1), on conviction isliable to a fine of not less than $200 and not more than $20,000 and, in addition, his or her driver’s licence issued under

section 32 andpermit issued under

section 7 may be suspended for a period of not more than 60 days. [15] Pertinent to these provisions are certain

definitions enumerated in the Act. First of all, as referenced in ss. 111(5), ss. 16(1)defines what a commercial motor vehicle does not include: 16(1). In this

section and in sections 17 to 23.1,“commercial motor vehicle” does not include,

(

a) a commercial motor vehicle, other than a bus, having a gross weight or registered gross weight of not more than 4,500 kilograms, an ambulance, a fire apparatus, a hearse, a casket wagon, a mobile crane, a motor home or a vehicle commonly known as a tow truck, (

b) a commercial motor vehicle leased for no longer than thirty days by an individual for the transportation of goods kept for that individual’s personal use or the gratuitous carriage of passengers, (

c) a commercial motor vehicle operated under a permit and number plates issued under a regulation made under clause 7 (24) (

g) or (

h) that is not transporting passengers or goods, (

d) a commercial motor vehicle operated under the authority of an In-Transit permit, and (

e) a bus that is used for personal purposes without compensation; (“véhicule utilitaire”) [ 16 ] Under the general definition provision of the Act found in s.1 are the following relevant

definitions: “motor vehicle” includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; (“véhicule automobile”) “commercial motor vehicle” means a motor vehicle having permanently attached thereto a truck or delivery body and includes ambulances, hearses, casket wagons, fire apparatus, buses and tractors used for hauling purposes on the highways; (“véhicule utilitaire”) [ 17 ] Finally, turning to the Provincial Offences Act, found within

Part IV pertaining to trial and sentencing, there is ss. 47(3) which figures prominently in this case: (3). The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

II. the alleged particularization of the offence [ 18 ] Before addressing the specific ground of appeal, it is necessary to highlight what might be viewed as an anomaly in the prosecution of this case. The parties and the Justice of the Peace proceeded on the basis that the offence charged was under ss. 111(2) of the Act. The reason for this was likely due to the certificate of offence specifically referring to ss. 111(2). However, the offence denoted is insecure load commercial motor vehicle. There is in the Act a specific offence relating to insecure loads on a commercial motor vehicle.

Subsection 111(2.1) states:

(2.1) No person shall operate or permit to be operated upon a highway a commercial motor vehicle that carries a load or draws a vehicle that carries a load unless the load is loaded, bound, secured, contained or covered in accordance with the regulations. Ontario Regulation 363/04 passed under the Act expressly deals with the standards required of commercial vehicles when it comes to securing loads whether under or over 4,500 kilograms.

Given how the trial was conducted, I will deal with the appeal on the basis that the offence charged was under ss. 111(2) dealing with insecure loads on motor vehicles in general. [ 19 ] It is productive to begin my analysis of the issue with the provisions of

Part I of the Provincial Offences Act which deals with certificate of offences. The issuance of process by a certificate of offence or commonly known as a “ticket” is intended to be speedy, efficient, and convenient.

Section 13 of the Provincial Offences Act permits the Attorney General to make regulations prescribing forms for a certificate of offence and, indeed, prescribing any word or expression to designate an offence. Where regulations do not do so, the offence may be described pursuant to s. 25 which refers to how counts may be described in an information. I am not aware that there is a regulation authorizing how an offence under ss. 111(2) of the Act be described under s. 13. [ 20 ]

Section 25 governs how the offence should be sufficiently described in the charging document. The general approach is to reject archaic technical arguments on sufficiency. The golden rule is that the defendant be reasonably informed of the transaction alleged so that the defendant can make a full defence and have a fair trial: see R. v. Coté , [1987] 1 S.C.R. 8 at para. 20 . In this case, there is no attack made on the description of the offence in the certificate of offence. There is no argument that the appellant was misled or unable to identify the transaction being alleged.

I note that s. 35 of the Provincial Offences Act provides the court with the authority to order particulars if it is necessary for a fair trial. [ 21 ] What the appellant argues on the appeal was that the prosecution, through the provincial offences officer who described the offence on the certificate of offence, particularized the offence as involving a commercial motor vehicle. I do not agree. [ 22 ] First of all, it is clear that ss. 111(4) and (5) are penalty provisions. They do not create the offence and do not set out the essential elements of the offence. Subsection 111(2) does.

Therefore, under this offence the prosecution is only required to prove that the defendant operated or permitted someone to operate a motor vehicle. The prosecution is not required to prove in order to make out the offence that the defendant operated or permitted someone to operate a commercial motor vehicle. [ 23 ] The appellant relies upon the case of Saunders . In that case, the accused were charged with conspiracy to import heroin but the Crown lead evidence that what the accused actually imported was cocaine. The trial judge held that the Crown was required to prove the conspiracy to import heroin.

Indeed, one of the accused on the basis of the trial judge’s view of the matter testified in his own defence that while he was involved in a conspiracy to import other drugs, he had no part of importing heroin. It is in this context the Supreme Court of Canada upheld the trial judge. The Court affirmed the fundamental principle of criminal law that the offence once particularized in the charge had to be proven. The Crown had argued that it was not an essential element of the offence of conspiracy to

specify the nature of the drug. While this was so, since the Crown had particularized the drug to be heroin, to permit the Crown to provesome other offence undermined the purpose of providing particulars which was to permit the accused to be reasonably informed of thetransaction alleged against him so that he could have a fair trial and make full answer and defence. Although the Crown was not requiredto specify the drug, once particularized as heroin, it was unfair and prejudicial to permit a conviction on some other offence.

Indeed, on the facts of the case,in reliance upon the particular, one accused testified and admitted his criminal culpability. [24] Even if the legal principle enunciated in Saunders is applicable in the provincial offences context, I see the facts of this casereadily distinguishable from Saunders. The appellant had sufficient details to appreciate the nature and quality of the transactioncomplained of based upon the certificate of offence and whatever disclosure he received. No complaint of this was made at trial. [25] This case is more akin to the decision of R. v. Vezina, (SCC), [1986] 1 S.C.R. 2.

In that case, the Courtreferred to the common law “surplusage” rule. It held (at paragraphs 49 and 59): 49. The "surplusage rule", which has been developed by the courts over a great many years, is succinctly stated as follows, inEwaschuk, Criminal Pleadings and Practice in Canada (1983), at pp. 222-23: If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will betreated as surplusage, i.e., a non-necessary which need not be proved. ….. 59.

Similarly, "the surplusage rule", which, as noted above, is the converse of s. 510(3), must also be seen as subject to the proviso thatthe accused not be prejudiced in his or her defence. In R. v. Elliott, (BC CA), [1976] 4 W.W.R. 285, McIntyre J.A.(as he then was) stated at p. 289: It is clear in my view that where the Crown gives material particulars in an indictment it must prove them.

A long list of authoritiessupports this proposition. ..… It is of course true that immaterial or non-essential averments in indictments need not be strictly proved if no prejudice results to theaccused. (Emphasis added.) [26] In my view the addition of the word “commercial” in the description of the offence as found in the certificate of offence wassurplusage within the meaning of the rule. There was no requirement on the part of the prosecution to prove this. It is not a part of theelements of the offence that the appellant faced.

This is consistent with the holding in Saunders because no prejudice to the appellantarose due to the addition of the word “commercial” to motor vehicle. The appellant was aware of the transaction identified by thecertificate and was prepared to meet it. He did not testify and prejudice himself as a result of the surplusage averment.

As a result, I seeno error made by the Justice of the Peace when he held the prosecution was not required to prove what the appellant alleged was aparticular. [27] Given my conclusion that the offence was not particularized to involve a commercial motor vehicle, the prosecution was notrequired to prove that the appellant was driving such a motor vehicle under ss. 111(2). Evidence that he was driving a motor vehicle asdefined would suffice for a conviction. In other words, in such a prosecution, failure to prove that the motor vehicle was a commercialone would not entitle the defendant to an outright acquittal.

It would result in a conviction for insecure load while operating orpermitting someone to operate a motor vehicle. [28] However, this is not the end of the matter. For the prosecution to be able to rely on the increased penalty provision of ss.111(5) for offences involving commercial motor vehicles, it was required to prove that the appellant operated a commercial motorvehicle. In other words, while not a particular that must be proven in order make a finding of guilt, if the appellant was to be given ahigher fine, the prosecution still had to prove he drove a commercial motor vehicle as defined.

In my view, the Justice of the Peace madeno error in concluding that he operated such a vehicle given the definition of a commercial motor vehicle found in s. 1 of the Act. [29] In my opinion, the core of the complaint made by the appellant is that what the prosecution failed to prove, whether it be aparticular that needed to be proven as a part of the offence or a fact on sentencing, is that the commercial motor vehicle he was drivingweighed over 4,500 kilograms as the appellant submits is required pursuant to ss. 111(5) and as referred to within that subsection, ss.16(1) of the Act.

The simple answer to this submission is that the prosecution is not required to do so. Subsections 111(5) and 16(1) arean exception or exemption prescribed by law that operates in favour of the defendant. Consequently, pursuant to ss. 47(3) of theProvincial Offences Act the onus of proving that the commercial motor vehicle weighed 4,500 kilograms or less was on the appellant: see R. v. Lee’s Poultry Ltd. (1985), (ON CA), 17 C.C.C. (3d) 539 (Ont. C.A.); Proulx v. Krukowski (1993), (ON CA), 109 D.L.R. (4th) 606 (Ont. C.A).

Even before being enacted in the Provincial Offences Act, under the commonlaw, the onus of proving an exception or exemption such as this was upon the defendant. It does not take deep analysis to conclude that

when it comes to proving the weight of a commercial motor vehicle, in the words of Lawton L.J. in R. v. Edwards, [1975] 1 Q.B. 27 referring to the experience of the common law for centuries, such an exception was needed “to ensure justice is done to both the community and the defendant.” [ 30 ] There is one final question, although not specifically raised on this appeal, I feel compelled to address for the sake of completeness and future direction to trial courts. That is whether ss. 111(5) applies to offences committed under ss. 111(2) as well as ss. 111(2.1).

In other words, does the increased fine for commercial motor vehicles with improper loads apply to the general offence under ss. 111(2) or only the offence under ss. 111(2.1) which requires loads to be secured in conformity with regulations passed for commercial vehicles. The answer in my opinion is that penalty under ss. 111(5) applies to both offences under ss. 111(2) and ss. 111(2.1). Resort to legislative history provides the ready answer. The increased penalty under ss. 111(5) pre-existed the offence created by ss. 111(2.1). The latter was enacted in 2002 and proclaimed in 2005.

Subsection 111(5) has been in existence since 1996. In my view, the legislature intended the specific offence created under ss. 111(2.1) as an additional or alternative method of prosecuting and enforcing the improper loading of commercial vehicles once the material regulations were passed. The increased penalty provision for commercial motor vehicles was intended to apply to both categories of offences. [ 31 ] For these reasons the appeal is dismissed. Released: February 4, 2015. Signed: “Justice S. Nakatsuru”