r v. IAN, 2020 QCCQ 8884

Director of Criminal and Penal Prosecution c. Butzphal 2020 QCCQ 8884 COURT OF QUEBEC CRIMINAL AND PENAL DIVISION CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL N o : 500-61-495607-195, 500-61-495339-195 and 500-61-498341-198 Date : December 21 st , 2020 PRESIDED BY MADAME SUZANNE BOUSQUET, J.P.M. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v. IAN BUTZPHAL Defendant JUDGEMENT [ 1 ] On the evening of February 14, 2019, in Pointe-Claire, Mr.

Ian Butzphal was stopped by two highway controllers designated by the Société de l’assurance automobile du Québec, as he was driving h is Dodge RAM pick-up truck bearing an Ontario licence plate. After their inspection, the controllers gave Mr. Butzphal three tickets for the following offences: • that he drove a vehicle without holding a driver’s licence of the class appropriate to the driving of that vehicle, an offence to

section 65 of the Highway Safety Code [1] (No 500-61-495607-195) ; • that he failed, as the owner of a heavy vehicle, to submit it to the required mechanical inspection, an offence to

section 523 of the Highway Safety Code (No 500-61-495339-195) ; and • that he put a heavy vehicle into operation on a road open to public vehicular traffic, without holding a safety fitness certificate issued by another administrative authority, in contravention of

section 5 of the Act respecting owners, operators and drivers of heavy vehicles [2] , thereby committing an offence to

section 48 of this Act. [ 2 ] Mr. Butzphal claims that none of these offences apply to him for three main reasons: Firstly, he resides in Ontario, although he owns a company registered in Québec, secondly, he holds a valid Ontario driver’s licence, and thirdly, his pick-up truck, registered in Ontario, is not considered to be a heavy vehicle in that province, and is therefore exempted from the requirement of an annual inspection in that province. [ 3 ] Is he right in claiming that neither of the two Québec laws apply to him? Question in issue There are two questions in issue in this case:

a) Was Mr. Butzphal a resident of Québec on February 14, 2019?

b) Does he benefit from an exemption regarding the Ontario sa fety fitness certificate? Analysis

a) Was Mr. Butzphal a resident of Québec on February 14, 2019? [ 4 ] First, it is important to mention that the highway controllers gave Mr. Butzphal these tickets on the assumption that, although he claimed to be a resident of Ontario, he actually lived in Québec. [ 5 ] Mr. Butzphal testified that he did live in Pointe-Claire until 2016. However, after breaking up with his girlfriend, he moved to Sarsfield, Ontario, a city near Ottawa. He does however own a company registered in Québec, Château Forge Inc., and his former girlfriend allows him to use her address for his company.

He therefore receives his company mail at his former Pointe-Claire address. [ 6 ] Mr. Butzphal, a home inspector, conducts 90 % of his business in Montreal and its surrounding area. He comes to Montreal four days a week for inspections. Although his vehicle is registered under his own name, he does admit that he uses it for work and that the initials of his company name and phone number appear on the truck doors. He explains that he chooses to drive a truck of this size because it is a safer vehicle for someone who is often on the road. [ 7 ] If Mr.

Butzphal was still a resident of Pointe-Claire in 2019, there is no doubt that he had to obtain a Québec driver’s licence, and that his truck had to be registered in Québec. [ 8 ] Furthermore, because his truck has a gross vehicle weight rating of 5 534 kg, it is a heavy vehicle within the meaning of the Act respecting owners, operators and drivers of heavy vehicles . Therefore, if Mr. Butzphal was a resident of Québec in 2019, he had to submit his pick-up truck to an annual mechanical inspection, in accordance with sections 521 and 523 of the Highway Safety Code , which read as follows: 521.

The following road vehicles, subject to

section 543.2, must be submitted to mechanical inspection: […] (5) vehicles having a gross vehicle weight rating of 4,500 kg or more, except detachable axles, vehicles having a net mass of 4,000 kg or less that originally had an open truck box and a tailgate and that are registered as passenger vehicles within the meaning of the registration regulations, sport utility vehicles having a net mass of 4,000 kg or less, motor homes, house trailers, tool vehicles, farm machines as well as construction trailers defined by regulation; (…) 523. The owner or driver of a road vehicle contemplated in

section 521 must submit the vehicle to the required mechanical inspection and must remit the registration certificate of the vehicle and his licence to the Société or to the peace officer if so requested. [ 9 ] On the other hand, if Mr. Butzphal was not a resident of Québec in 2019, these rules did not apply to him, each province being responsible for the administration of highway security over its inhabitants and territory.

Québec could not, for example, dictate to a resident of British Columbia and owner of a truck what class of permit he must hold in order to drive through Québec, or if and when he should submit his vehicle to a mechanical inspection. [ 10 ] Has the prosecution proven, beyond a reasonable doubt, that Mr. Butzphal was a Québec resident in February 2019 ? The Court finds that it has not. There is no concrete evidence to support the assumption that he was indeed a resident of Québec. [ 11 ] Mr.

Butzphal testified that he bought his house in Sarsfield, Ontario in 2016 and moved there shortly after, after renovating it.

[ 12 ] A person’s place of residency is usually associated with his domicile, his home. On February 14, 2019, when he was stopped by the highway controllers, Mr. Butzphal was coming back from teaching at Vanier College, and, because of a heavy storm, he was indeed planning on spending the night in Pointe-Claire and shovelling the roof of his former girlfriend’s house. The fact that he is still in good terms with her does not mean that his home is still here, far from it. [ 13 ] Furthermore, the fact that his company is registered in Québec does not make him a Québec resident.

Although he admits that he works in the Montreal area four days a week on average, and that he uses his pick-up truck to drive to and from work, we do not really know if he spends the nights here, or if he commutes every day to and from his house in Sarsfield, Ontario. Does he have a pied-à- terre in Montreal or does he drive back home every day? These questions were not asked. [ 14 ] Because the prosecution has not proven, beyond a reasonable doubt, that Mr. Butzphal was a Québec resident in 2019, the Court must consider Sarsfield, Ontario as his place of residence.

Consequently, there was no obligation for him to obtain a Québec driver’s licence. His only requirement was to have a valid Ontario licence, which was the case. [ 15 ] Moreover, he did not have to submit his vehicle to the mechanical inspection contemplated in sections 521 and 523 of the Highway Safety Code , which apply only to vehicles registered in Québec. Mr. Butzphal’s pick-up truck was then and still is registered in Ontario.

b) Does Mr. Butzphal benefit from an exemption regarding the sa fety fitness certificate? [ 16 ] All Canadian provinces have adopted laws and regulations regarding the inspection of heavy vehicles. In fact, as a rule, provincial authorities have generally aligned their respective highway codes with one another, although there are some differences. [ 17 ] In accordance with

section 5 of the Act respecting owners, operators and drivers of heavy vehicles, owners of heavy vehicles registered in Québec must register with the Commission des transports du Québec before operating their vehicle on the road. Owners of heavy vehicles registered in other provinces do not have to register with the Commission, but they must register with their respective administration and hold a safety fitness certificate before operating their vehicle on the Québec highways and roads. [ 18 ] In Ontario, as in Québec, the owner of a heavy vehicle must submit it to regular mechanical inspections.

If an inspection is satisfactory, a Commercial Vehicle Operator Registration (CVOR) certificate is issued to him, and an “annual inspection sticker” is affixed on his vehicle, “evidencing compliance with the inspection requirements and performance standards ” [3] . CVOR is the registration system that tracks the safety performance of truck operations in Ontario. It is the equivalent of the Commission des transport du Québec. [ 19 ] When the highway controllers intercepted Mr. Butzphal in February 2019, they noticed that there was no CVOR sticker on his pick-up truck, although it weighs 5 534 kg.

Having no proof of the vehicle’s safety, they gave him a third ticket for an offence to

section 5 of the Act respecting owners, operators and drivers of heavy vehicles . [ 20 ] Mr. Butzphal argues that, although his truck weighs over 4 500 kg, he benefits from an exception in the Regulation regarding Safety Inspections [4] that exempts him from the requirement for an annual inspection. [ 21 ] Is he right? [ 22 ] In Ontario, according to

section 8 of the Regulation regarding Safety Inspections, a truck that weighs over 4 500 kg is considered a commercial vehicle. As a rule, a commercial vehicle must undergo a regular mechanical inspection. [ 23 ] However, there is indeed an exception, in force since July 2019 that exempts owners of pick-up trucks for personal use from the requirement for an annual inspection, both the inspection and displaying the CVOR sticker.

[ 24 ] The relevant subsections of the Regulation read as follows: 8.

(1) A commercial vehicle is prescribed as a type or class of vehicle to which

section 85 of the Act applies if it has a combined gross weight exceeding 4,500 kilograms.

(2) For purposes of subsection (1), the combined gross weight of a commercial vehicle is the total of the gross weight, registered gross weight or manufacturer’s gross vehicle weight rating of each commercial motor vehicle, trailer or trailer converter dolly included within the commercial vehicle.

(3) Commercial vehicles shall be inspected in accordance with the inspection requirements set out in NSC Standard 11B as modified by

section 1 of

Schedule 3. […]

(5) An annual inspection sticker described in subsection (4) is valid until the end of the twelfth month after the month of inspection indicated on the sticker. […] ( 9 ) Sub s ections (1) and (2) do not apply to the following classes of vehicles: […] 3. A pick-up truck , and a trailer drawn by a pick-up truck, if, i. the pick-up truck, and any trailer drawn by it, is being used for personal purposes without compensation , and ii. the pick-up truck , and any trailer drawn by it, is not carrying commercial cargo or tools or equipment of a type normally used for commercial purposes. [ 25 ] Mr.

Butzphal argues that his pick-up truck was for personal purposes only. The Court disagrees. [ 26 ] Although his vehicle is registered under his own name, he does use it for his trade and business. He testified that he uses his truck to drive to and from house inspections, and that it carries his tools and a ladder that he needs to climb on to inspect roofs. [ 27 ] Furthermore, although the truck is registered under his name and not his company’s name, Château Forge Inc., he has signs on his truck that advertise his trade.

Although he claims that these signs are only there to show his clients’ neighbours that he is not an intruder, they definitely grant some publicity to his business. [ 28 ] Finally, he did not use this truck only once in a while in 2019. It was then his only vehicle. And he certainly does not work only part of the time. He in fact testified that he spends four days a week on average inspecting homes. [ 29 ] The Court considers that Mr. Butzphal did not benefit from the exception of subsection 8(9) 3 of the Regulation. His truck should have been submitted to a yearly mechanical inspection.

FOR THESE REASONS, THE COURT:

FINDS THE DEFENDANT not guilty of the offence in files No 500-61-495607-195 and 500-61-495339-195; FINDS him guilty of the offence in file No 500-61-498341-198; IMPOSES a fine of 500 $ and statement fees only. He was ready for trial on February 2 nd , 2020, and because of affluence, his trial was postponed; GRANTS him a delay of three months to pay these sums. ____________________________________ SUZANNE BOUSQUET, JPM Me Marie-Claude Huot For the prosecutor Date of hearing : December 10 th , 2020 [3] In accordance with

section 85 of the Highway Traffic Act , R.S.O. 1990,

chapter H.8 , and

section 8 of the Regulation regarding Safety Inspections, R.R.O. 1990, Regulation 611 . [4] Id .