r v. JUSTIN GIBBS, 2021 QCCQ 3671

Director of Criminal and Penal Prosecutions c. Gibbs 2021 QCCQ 3671 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF PONTIAC TOWN OF CAMPBELL’S BAY « Criminal and Penal Division » N° : 555-61-004815-200 DATE : May 10, 2021 ______________________________________________________________________ PRESIDED BY HONORABLE JUSTICE CHRISTINE AUGER, MAGISTRATE JUSTICE OF PEACE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

JUSTIN GIBBS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On or about the 19th of July 2019, the Defendant was accused under

section 258 of the Highway Safety Code [1] that requires that every motor vehicle, except a vehicle that does not use fuel as its source of energy, be equipped with an exhaust system that conforms to the standards established by Regulation. [ 2 ] The Regulation respecting safety standards for road vehicles [2] under

section 130 regarding the exhaust system states that : « 130. The exhaust system shall include all the components, in particular the manifolds, pipes, muffler, brackets and clamps. The components of the exhaust system shall be adequate, securely mounted to their anchorages and no leakage of exhaust gases shall be detected through joints or an external hole other than that of the outlet pipe and the drain hole originally provided by the muffler manufacturer for evacuating condensation.

No component of the system shall have been replaced, removed, added or modified in a way that makes the system noisier or more likely to cause burns compared to the system installed by the motorcycle manufacturer. The exhaust system shall not have a mechanism that prevents exhaust gases from flowing through the muffler.

For the purposes of this subdivision, “muffler” means a component that has the following characteristics: (1) it is composed of an expansion chamber, a baffle or any other mechanical, electronic, electrical or acoustic device, or a combination thereof, that are permanently mounted and that is specifically designed by the manufacturer to reduce the noise caused by the exhaust gases;

(2) Its exterior diameter is greater than the diameter of the manifold;

(3) It was designed by the manufacturer for the motorcycle on which it is mounted; and

(4) It shall not bear a mention or be identified by its manufacturer or the motorcycle manufacturer as intended for a special use or not designed for use on public roads. [ 3 ] The position of the Prosecution is that buying a replacement exhaust system from Harley Davidson does not imply that it conforms [3] to the Regulation and the officer concludes after examination that it does not. [ 4 ] On the other hand, the Defendant states that having a « Super Trapp » end cap disc does not make the « Screaming Eagle Nightstick » exhaust system illegal.

In addition, he states that the officer did not investigate further to conclude that his exhaust system violates the Regulation guidelines and therefore, the Crown has not proven the infraction beyond a reasonable doubt.

QUESTIONS IN LAW [ 5 ] The litigation in this matter brings the Court to identify the following litigation questions to be resolved.

a) Has the Prosecution proven all of the elements of the infraction beyond a reasonable doubt that the exhaust system does not meet all the requirements of the Regulation ?

b) In the affirmative, has Mr. Gibbs shown reasonable diligence or reasonable error as to the conformity of his exhaust system?

ANALYSIS Has the Prosecution proven its case beyond a reasonable doubt that the exhaust system does not meet all the requirements of the Regulation? [ 6 ] The prosecution evidence is the intercepting officer’s report containing the mention that when the Defendant passed the patrol car on route 148, the Harley Davidson exhaust system was very « loud », which lead the officer to intercept the driver for verification. [ 7 ] His conclusion was that the exhaust system was not the original and the make of the replacement system is the « Super Trapp » [4] .

He states that it violates the Regulation because there is no restriction for the deviation of exhaust gases. The absence of restriction creates the « loud » noise. [ 8 ] The legislation states that every motor vehicle must be equipped with an exhaust system that conforms to the standards established by regulation [5] . [ 9 ]

Article 94 of the Regulation provides that « no component of the exhaust system shall be replaced, modified or removed so as to cause the system to be noisier than the one originally installed by the manufacturer on the road vehicle» . [ 10 ] In order to prove that the system was replaced, no expert evidence is required nor very technical evidence on sound levels, [6] however, in order to prove the commission of the infraction beyond a reasonable doubt, there must be evidence that the replacement, the addition or alteration increased the sound level, as compared to the original .

To provide this evidence, techniques such as a sound level meter [7] , the wire test or flashlight can be used. [ 11 ] In Directeur des poursuites criminelle et pénales c. Montimigny [8] , police intercepted a motorcycle whose exhaust system appeared to violate the Regulation . The « exhaust » portion was verified by using a measuring tape and the evidence as to the sound was a product of subjective appreciation by the officer.

That evidence was deemed to be insufficient to prove the elements of the infraction beyond a reasonable doubt. [ 12 ] Similarly, Justice Hénault [9] concluded that the wire test and flashlight when accompanied by arbitrary appreciation of the officer as to the sound did not establish beyond a reasonable doubt the infraction of violation of the Regulation . [ 13 ] In Granby (ville de) c.

Woodbury [10] , the Court concluded that the wire test and the flashlight are useful to verify the presence of the original exhaust system or the replacement, but it does not dispense the necessity of proving the increase in the sound output as compared to the original. [ 14 ] The Prosecution has the burden of proof to prove the non-conformity of the exhaust system [11] . [ 15 ] Mr. Gibbs testifies that his exhaust system is a « Screaming Eagle » with a « Super Trapp » end cap disc. His Harley Davidson is a 2011 model, purchased from a private individual in the amount of 17, 000$.

He states that the « Screaming Eagle Nightstick » system is street legal , stamped EPA standard header and it is a stock system sold by Harley Davidson. He kept the original exhaust pipe for artwork. [ 16 ] The « Super Trapp » end cap disc is cosmetic and adjusts the sound.

He did not question the legality because the replacement exhaust system was a stock system with Harley-Davidson. [ 17 ] The Defendant filed pictures of his motorcycle as well as pictures of an exhaust pipe [12] which he identifies as the « Screaming Eagle Nightstick » on his motorcycle with inscriptions that « the Harley-Davidson exhaust system 65592-09A meets EPA noise emission requirements … Installation of the exhaust system on motorcycles not specified may violate Federal law ». [ 18 ] In R v.

Perron et als , Justice Bédard heard expert testimony on « performance » exhaust systems sold by Harley-Davidson and in particular the « Screaming Eagle ». According to the expert witness, the replacement exhaust system has 50/50 deflectors that open or close diagonally at a 45 degree angle, called « 70/30 ». They therefore cannot adequately fulfill the requirements of the Regulation. They often have the mention « Not for road use ».

This said, the expert testimony cannot be applied to this case, but there are clearly diverging points of view on the legality of this type of exhaust system. [ 19 ] After analysis of the Prosecution evidence, the Court concludes that there is an absence of any verification on the Defendant’s exhaust system, other than the appearance and the mention « Super Trapp » on the end cap. No wire test was done nor was the flashlight used in addition to the subjective appreciation of the officer as relates to the sound.

The essential elements of the infraction have not been proven beyond a reasonable doubt by the Prosecution evidence. Has Mr. Gibbs shown reasonable diligence or reasonable error as to the conformity of his exhaust system?

[ 20 ] Because the Court comes to the conclusion that the Prosection evidence has not been proven beyond a reasonable doubt that Mr. Gibbs’s exhaust system does not meet the requirements of the Regulation , the Court does not need to address this second litigated question. FOR THESE REASONS, THE COURT: ACQUITS the Defendant of the infraction as charged. __________________________________ JUGE CHRISTINE AUGER, J.P.M. M e Sophie Ouellette Prosecutor of the Director of Public Prosecutions Mr. Justin Gibbs Self-represented Date of hearing : February 1st, 2021