R. v. Hoffner, 2013 ONCJ 510

File No. 4460 999 00 1753662B Citation: R. v. Hoffner , 2013 ONCJ 510 ONTARIO COURT OF JUSTICE Provincial Offences Court HER MAJESTY THE QUEEN v. WOLFGANG HOFFNER * * * * * * REASONS FOR JUDGMENT HEARD BEFORE HIS WORSHIP JUSTICE OF THE PEACE J. ZIEGLER on the 4th day of September , 2013 at Kitchener , Ontario * * * * * * CHARGE: Obstruct Plate, S. 13(2), H.T.A.

APPEARANCES: R. Schmidt Municipal Prosecutor Defendant Acting on His own Behalf ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR JUDGMENT . . . . . . . . Page 1 * * * * * * * Transcript Ordered .................. Sept. 4 th , 2013 Transcript Completed .................. Sept. 12 th , 2013 Ordering Party Notified ...................Sept. 19 th , 2013 R E A S O N S F O R J U D G M E N T

J. ZIEGLER, Justice of the Peace (Orally): Okay. I have a few things to say. You can stay standing. This is a charge that Wolfgang Hoffner did on June 5 th , 2013 at 6:47 a.m. at King Street North in the City of Waterloo commit the offence of obstruct plate, contrary to section 13(2) of the Highway Traffic Act.

Now I have the evidence of Constable Conyers who was on routine patrol on that day when he discovered or saw a vehicle travelling in front of him with plates that he couldn’t read from a distance, so he stopped that vehicle and discovered that the plates had nearly completely faded and were impossible to read at five metres even though it was light and it was overcast at the time. He was satisfied with the identification of Wolfgang Hoffner who provided a valid Ontario Driver’s licence, born December 1 st , 1961 although he couldn’t see the permit because the glove box broke.

The officer said the plate was in good condition, just the blue paint faded off. There were minute traces of the paint. He said I could not enter the plate until I made the traffic stop. Any sign that it was forcibly removed. No, just wear, faded elements. Age of plate good shape aside from blue paint on the digits. Cross-examination didn’t bring anything new out of that testimony. Mr. Hoffner said that he was not aware that his plates were faded. He said he could read them. And he did replace the plate after this was brought to his attention.

Now, referring to the legislation because I am concerned with the wording of this legislation and, as you know I am bound by statute. In section 13(1) it says no number other than that upon the number plate furnished by the Ministry shall be exposed on any part of a motor vehicle or trailer in such a position or manner as to confuse the identity of the number plate. That’s not the case here. Subsection 2 – number plate to be kept clean. Every number plate shall be kept free from dirt and obstruction and shall be affixed so that the entire plate including the numbers is plainly visible at all times.

And the view of the number plate shall not be obscured or obstructed by spare tires, bumper bars or any part of the vehicle. Any attachments to the vehicle or the load carried. Now this

section seems to talk about an active, an action taken by a defendant that would obstruct the plate. I have no evidence that there was dirt and the numbers faded would be plainly visible except by reason that they were faded. It was not obscured or obstructed by spare tires, bumper bars or any part of the vehicle or attachments. Now subsection 3 says the number plate shall not be obstructed by any device that prevents the entire number plates including numbers from being accurately photographed using a photo radar system.

And 3.0.1 says not obstructed by any device that prevents the entire plates, entire number plates including numbers from being accurately photographed using red light camera systems. And 3.1 shall not be obstructed by any device or material. When you look at these additional sections they’re all talking about obstruction. They don’t talk about the age of the plate or the fact that the plate just wears out by normal wear and tear. It’s almost as if the Ministry or the legislature didn’t address this issue.

So while I agree that faded plates should be required to be changed, I’m not satisfied that I can stretch this

section to cover that. It is not similar to the light

section pointed out to me by the prosecution which says from the front of a car only a white or amber light should be visible. From the rear of the car only a red light should be visible. Thus if you put another light underneath the car that’s visible from the front or the back you’ve breached the section. There is not anything actively done by the defendant to obstruct this plate and the

section speaks of some sort of action in order to obstruct the plate. On that basis I’m going to dismiss the charges; but if I’m wrong, if a higher court reasons that faded plates equals obstruction and if that were the case given that the defendant replaced the plates as soon as he was able to replace them, I would have suspended sentence. So I’m dismissing the charges. If I’m wrong in law, I would have suspended the sentence given your financial situation and the fact that you replaced the plates. You are free to go and you don’t have any fine to pay.

************ FORM 2 CERTIFICATE OF TRANSCRIPTION Evidence Act s. 5(2) I, PATRICIA LEBLANC , certify that this document is a true and accurate transcript to the best of my skill and ability of the electronic digital recording of R. vs. WOLFGANG HOFFNER in the Ontario Court of Justice, Provincial Offences Court held at 77 Queen Street, North, Kitchener, Ontario on September 4 th , 2013 which has been certified in Form 1. . . . . . . . . . . . . . . . Patricia LeBlanc Certified Court Reporter . . . . . . . . .