R. v. Travis, 2015 ONCJ 143

Citation: R. v. Travis , 2015 ONCJ 143 ONTARIO COURT OF JUSTICE OLD CITY HALL, TORONTO REGION BETWEEN: HER MAJESTY THE QUEEN — AND — YAKOV TRAVIS Before Justice S.R. Shamai Reasons for Judgment Released March 13, 2015 J. Hurst ….…....…….……..….................................................... for the City of Toronto V. Manoukian ..…………………………….……..…. for the Appellant, Yakov Travis SHAMAI J: INTRODUCTION [ 1 ] On March 20, 2013, at approximately four minutes after midnight, Yakov Travis was investigated by police, as he drove his family’s 1997 white Rav 4, southbound on Bathurst Street.

The vehicle is a small SUV, a sports utility vehicle, with two rows of seating, and a storage, or baggage area behind the second row of seats, which is open to the passenger area of the vehicle. In the seating area, there are five seatbelts, two in front, and three in the second row, or back seat. [ 2 ] The investigation started because the officer noted that someone was seated in the rear area of the vehicle, leaning against the driver’s side, facing out the rear passenger side window. Mr. Travis was charged with the “stunt driving” offence in the Highway Traffic Act , R.S.O. 1990 c.

H-8 (as amended) Section 172(1). Regulation 455 particularizes the offence by naming several ways that the offence may be committed. The regulation, in subsection 5 provides that the offence may be committed by driving “with a person in the trunk of the motor vehicle”. [ 3 ] At trial, the evidence showed clearly that in addition to individuals in each of the seats with seatbelts, one young man was in the rear area of the vehicle, where there was no seatbelt. Mr. Travis testified that he had been asked to go pick up some people, and on arrival found that there were more people than his car had seatbelts.

He accommodated all of them by permitting one to ride in the back. He was convicted as charged, after a trial, on November 5, 2013. [ 4 ] The issue on appeal is whether the rear area, or storage or baggage area of a SUV, such as the RAV 4, is a trunk as stipulated by regulation. It is contended by the Appellant that had the learned Justice of the Peace at trial properly applied the rule of strict

construction to the law to the evidence in this case, he would have found that a reasonable doubt arose, and entered an acquittal. [ 5 ] In his careful and detailed consideration of the evidence, the arguments, and the law, it may be that the Justice of the Peace articulated the test he was to apply improperly, by referring to a burden of proof on the defendant: “The burden on you, as your capable agent will tell you, is to create reasonable doubt in the mind of the Court” (p. 26, ll29-31) [ 6 ] However, this is not the point where the Appellant says the Court erred. Rather, it is with regard to the test of statutory

interpretation applied to the evidence in this case. Counsel argues that the Legislature intended to prohibit the dangerous conduct involving transporting someone in the closed area commonly referred to as the trunk of the car, as on a sedan. [ 7 ] On appeal, material was filed by way of promotional material and manuals concerning the various SUV’s including the 2011 model of the Rav 4. Counsel advised that a search of Legislative Debates yielded no elucidation as to the intent of the legislators.

A copy of a web search concerning the practice of “teenage trunking” was filed as well, to show that the practice of teenagers riding in the trunks of motor vehicles was dangerous and in some cases fatal, with an accident. To the extent that the Court can gain guidance from the

article of Cedric Hughes, on a webpage called “Roadrules” with a date of 05/09/2007, I note that the

article refers to the dangers of riding in a part of the car which was not built, as is the passenger compartment, to withstand collision. In addition, the dangers of “poisoning from seepage of carbon monoxide into the trunk, asphyxiation from lack of oxygen and heat prostration from excessive heat in summer” were listed. The manuals and dictionary

definitions were inconclusive as many referred to the trunk area, and some to the luggage compartment or storage compartment, and certainly highlighted the dangers associated with people riding in those areas of a motor vehicle. The material filed included dictionary

definitions, which showed the evolution of style of luggage compartment, from a box strapped to the exterior of a vehicle, and on through the compartments conventionally known more recently on sedans, though in terms of definition, no limitation to sedan was made. [ 8 ] In his decision, the Justice of the Peace took judicial notice of the “trunk of a SUV”: If someone were to ask me what is a trunk of a SUV, there is no question that I would say the end part of the vehicle, not a more specific area enclosed with a lock where you cannot see anything, that is only for sedan, even hatchbacks are visible”. [ 9 ] In discussing the manner in which he approached the construction of the statute, the trial Justice of the Peace said: So, the commons definition always leave the broader, now that will the liberal definition is what, that means what the legislator means in a broader sense.(sic)” [ 10 ] He went on to apply these words to the evidence.

The primary thrust of the argument on appeal is that this approach to the strict construction rule is wrong. Even allowing for ambiguity resolved in favour of the trial Justice of the Peace, I tend to agree, that this approach to the strict construction rule is indeed in error. [ 11 ] In referring to the “liberal definition” of what the legislator meant, the Justice of the Peace went on to effectively give a broad

interpretation of the statue, to the detriment of the Appellant. Much judicial consideration has been expended over the years, in attempts to create a principled framework for the

interpretation of legislation. However, I believe that the learned Justice of the Peace erred, with respect, in enunciating the direction, if you will, in which “broad

interpretation” should be applied. To follow his reasons, the statute in question should be interpreted broadly. That is, however, to the detriment of the Appellant/Defendant, giving instead broad reach, or benefit of the doubt, to the legislator: What the legislation meant in a broader sense, especially on this large trunk, mean that the area of the load was designated simply for trunk and other stuff – where we getting our stuff.

And, so to limit in this particular case, trunk, which strictly only apply for sedans, because that is the way they are designed; that is the way they are structured, your definition will apply. And, if we follow that, then we are going to exclude all trucks from this Highway Traffic Act restriction. That is the intent of the legislation?

This Court feels otherwise, no, the intent was simply, really more it looks like, the target was this S.U.V. or trucks where the end part ofthat vehicle is visible and designated for the use of carrying luggage or other stuff, not for transporting human beings. So, the broader definition simply will include S.U.V.s in that last part of the car, and I think that is the common definition. [12] The general rule of statutory

interpretation follows the proverbial golden thread which weaves through criminal and quasi-criminal law: that there is a presumption of innocence underlying such proceedings. The recent decision in R. v. Lux, [2012] S.J. No. 796in the Saskatchewan Court of Appeal provides a helpful review of the relevant authorities on statutory

interpretation, in relation to theSaskatchewan equivalent of the Highway Traffic Act. [13] The Court starts with the proposition of the “modern purposive approach” enunciated in the Saskatchewan

interpretation statute,articulated, as the Court says, by the well-known statement of the Supreme Court of Canada in Rizzo .v. Rizzo Shoes Ltd (Re), (SCC), [1998] 1 S.C.R. 27: Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretation thatbest ensure the attainment of its objects. [14] The Court goes on to distinguish what such an

interpretation means in the case of remedial legislation: “directed at securing asocial benefit, correcting a defect in the existing law; or alleviating a hardship, but not in interpreting legislation that encroaches on theprivacy or individual liberty of a person (emphasis added) [15] Certainly, in the present case, the freedom to sit as one pleases in one’s motor vehicle is an aspect of individual liberty. Statutorylimitation of it, while perhaps for a proper purpose, is nonetheless a limitation to be regarded as an encroachment of liberty. [16] The ringing statements of principle regarding statutory

interpretation of Canadian law are to be found in the cases of Marcotte, (SCC), [1976] 1 S.C.R. 108; Kelly (SCC), [1992] 2 S.C.R. 170; McIntosh, (SCC),[1995] 1S.C.R. 686 cases: there must be no crime or punishment except in accordance with law which is fixed and certain (Kelly p. 203); quoting Dickson J in Marcotte, then - C.J. Lamer said “when freedom is at stake, clarity and certainty are of fundamental importance”. [17] Notwithstanding reference to the canons of

interpretation, the learned Justice of the Peace seemed more inclined to give thebenefit of the doubt to the Legislature, that they intended to create a broad and inclusive definition of “trunk”.

In my view, if there wasany real doubt in this case, concerning just what the Legislature intended by the word “trunk”, it would be resolved in favour of theAppellant/Defendant, not the Respondent /Prosecutor. [18] However, having regard to the whole of the evidence, as amplified by the material filed on the appeal, and knowing that the intentof the legislators is to avoid unsafe or dangerous driving practices, I cannot conclude any differently than learned Justice of the Peace attrial, giving a large and liberal

interpretation of the provision, and interpreting any ambiguity in favour of the Appellant/Defendant. Eventhe manufacturers’ guides caution against riding in the rear compartment. Clearly they are not intended for such use. There are noseatbelts there, and the construction of the vehicle does not permit proper seating there, nor structural protections, as are in the seatingareas. There may be additional dangers associated with a person “riding” in the closed compartment of a car, or sedan, which we allknow as the trunk.

However, this does not detract from a reasonable basis for the extension of this legislative proscription to the storagecompartment of this type of vehicle. I must conclude that this area of the vehicle is included in the definition of “trunk” under subsection5 of Regulation 455 to Section 172(1) of the Highway Traffic Act. [19] On that basis, I dismiss the appeal. Released: March 13, 2015 Signed: “Justice S.R. Shamai”