R. v. Zehr, 2011 ONCJ 516

Court File: 95176713-00 at Orangeville Citation: R. v. Zehr , 2011 ONCJ 516 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES APPEAL COURT at Orangeville BETWEEN HER MAJESTY THE QUEEN Respondent And BRANDON ZEHR Appellant Heard: September 30 th , 2011 Released: October 5 th , 2011 Justice B.E. Pugsley Appearances: Mr. C. Pressword, for the Respondent Ms. R. Tatla, for the Appellant On appeal from the decision at trial of His Worship Justice of the Peace N. Rohan at Caledon, Ontario, dated October 26 th , 2010. REASONS 1 . Brandon Zehr was an employee of Hydro One on February 7 th , 2009.

He was operating a truck owned by his employer which mounted a large extendable bucket for servicing hydro lines. While driving this vehicle to an occurrence he was stopped by an officer employed by the Ministry of Transportation to enforce (among many other laws) the Commercial Motor Vehicle Inspection Regulations. He was asked to produce to the officer a copy of his pre-trip inspection report pursuant to the regulations.

When he was unable to do so he was charged pursuant to section 107 (7) of the Highway Traffic Act (“the Act ”) with the offence of failing to surrender to the officer upon demand the pre-trip inspection report that the driver is required to have in his possession pursuant to section 107 (6) of the Act . 2 . After a trial which exceeded one day in length, the Learned Justice of the Peace at trial convicted the Appellant. The Appellant appeals his conviction. 3 . It is conceded by the Appellant that he did not produce the pre-trip inspection report to the officer.

At his trial he admitted that he had not conducted a pre-trip inspection on the day of the offence, a Saturday when he would not normally have been working. 4 . The Appellant submits however that as a public utility, vehicles operated on behalf of Hydro One while responding to or returning from an emergency are exempted from the application of paragraphs 107 (4) through (12) of the Act by the application of subsections 1 (2) and 4 (1) of Ontario Regulation 199/07 “Commercial Motor Vehicle Inspections” passed pursuant to the Act (“the Regulation”). 5 .

The Appellant submits further that the failure of the Learned Justice of the Peace at trial to consider this exemption amounts to an error of law such that the conviction ought to be overturned. 6 . Finally, the Appellant submits that the Learned Justice of the Peace erred in law by improperly restricting the cross-examination of the crown witness by the Appellant’s trial counsel, and that in so doing the trial Justice of the Peace committed an error of law such that the conviction ought to be overturned. 7 .

The Respondent submits that there was no error at trial, that Hydro One is not a public utility for the purposes of the Regulation, and that in any event the Appellant was not responding to or returning from an emergency such that an exemption applied. The Respondent submits that the cross-examination of the crown’s sole witness consisted of a few abbreviated questions and that any error made in constraining cross-examination (which is not conceded) was of no great effect. The Respondent seeks the dismissal of the appeal. 8 .

The Appellant and his partner were working to repair a buried hydro line on Saturday, February 7 th , 2009, in the Town of Caledon in the Region of Peel. As part of their duties that day they were also responsible for being available to answer calls for service in their area should any such calls come in to Hydro One.

9 . While working they received a call to attend what was referred to in the evidence as a “trouble call”. A copy of the call record was filed at trial, and additional witnesses helped the court at trial to understand what this trouble call was about. On this occasion at just prior to noon a citizen had called Hydro One to report that a hydro wire was hanging down from a pole and not attached an insulator and was “live” – that is, still energized with electricity. 10 . The Appellant and his partner stopped what they were doing as their regular work and immediately responded to this call.

The defence evidence lead at trial was to the effect that such calls were always treated as emergencies by Hydro One since persons could be seriously injured or killed by contact with live hydro wires that were not properly fastened to a hydro pole. 11 . The Appellant’s partner, Mr. Coyle, drove ahead of the Appellant’s vehicle. Mr. Coyle was driving a Ford F-150 pickup truck, which does not fall within the definition in the Act of a Commercial Motor Vehicle.

The Appellant’s vehicle, as already discussed, was a large commercial motor vehicle equipped by the owner, Hydro One, to service hydro lines mounted on hydro poles. The Appellant’s vehicle does come within the definition of Commercial Motor Vehicle in the Act . As such the Appellant bore a duty under the Act and under normal circumstances, to secure a completed pre-trip inspection report before taking his vehicle out onto the road for the first trip each day. On this Saturday he had not obtained such a report. 12 .

After receiving the trouble call and leaving where they were working, the Appellant and his partner travelled south on Highway 10 in their separate vehicles, driving on the shortest route to the village of Terra Cotta where the power line had become detached from the hydro pole. Their route took them past the Ministry of Transportation weigh scales north of the hamlet of Victoria on southbound Highway 10.

The Ministry was using the scales area to conduct random inspections of Commercial Motor Vehicles on this Saturday, as part of the Ministry’s enforcement programme, and the officers there had activated the flashing lights on the weigh scale sign which directed all commercial motor vehicles to report to the scales for inspection. 13 . The Appellant, enroute to an emergency wire down call, decided not to obey the direction of the Ministry sign and instead drove past the scales without stopping. 14 .

Ministry of Transportation Enforcement Officer Ivor Johnson was at the scales and saw the Appellant drive his vehicle past the scales instead of stopping. He immediately chased the Appellant’s truck with his marked Ministry vehicle with emergency lights, and then his siren, activated. The Appellant pulled into a private driveway and stopped, and the officer approached the Appellant’s truck. The Appellant got out and met the officer who asked why he had not stopped at the scale. The Appellant told the officer that he was on the way to an emergency call. 15 .

The officer requested various documents from the Appellant, including a pre-trip inspection report. All the Appellant produced to the officer at the roadside was his driver’s licence. The officer ordered the Appellant to return to the scales, and the Appellant did so. Mr. Coyle’s pick-up truck was not subject to inspection and he was allowed to proceed on his way to the call. 16 . Back at the scales, the Appellant was able to produce all of the requested documents except for the pre-trip inspection report.

Officer Johnson issued the Appellant an Offence Notice for failing to produce the report upon demand as required by paragraph 107 (7) of the Act . 17 . In the meantime Mr. Coyle had arrived at the scene of the trouble call. He found a live hydro wire hanging down from a pole over the roadway, but still some 25 feet above the ground. Without the bucket truck driven by the Appellant he could not fix the wire, so he placed traffic cones down to alert drivers to the hazard and returned to the scales to secure the help of Mr. Zehr in completing the trouble call. 18 .

The hanging hydro wire was subsequently repaired. 19 . I will turn first to the issue raised by the Appellant with respect to the alleged curtailment of the Appellant’s ability to cross-examine the crown’s only witness, Officer Johnson. The Appellant submits that this in and of itself is sufficient grounds to reverse the decision at trial.

The Respondent submits that if there was an inappropriate limit placed upon cross-examination this could not have had impact on the result at trial given that counsel for the Appellant at trial asked only a few questions and the evidence of the sole prosecution witness was not controversial. 20 . I disagree with the Respondent’s submission. 21 . The right to cross-examination by a party or their counsel of witnesses called by the opposing party could hardly be more fundamental to our system of justice.

In a criminal or quasi-criminal case such examination is arguably even more important as the liberty of one of Her Majesty’s subjects may be in issue. Caselaw has long established that courts ought to tread very carefully when asked to place restrictions on cross-examination in such cases. For example, counsel have a right to lay the groundwork for further questioning, or evidence, by asking questions in cross-examination that, initially at least, seem to have little connection to the case at bar. 22 .

Only when the relevance of the questions asked becomes increasingly unclear ought counsel for the opposite party, and/or the court on its own motion, interfere in the flow of cross-examination by seeking a explanation from the cross-examining counsel. The issue ought to then be determined in the absence of the witness, such that counsel is not forced to show their hand unnecessarily to the witness.

Of course, being human, and being faced with extremely busy lists and the consequent perceived need to move a case along, it is a rare trial judge who at some point in his or her career has not felt at least a sense of sheepishness when told by counsel where the cross-examination was going before the interruption. 23 . I also note, as I indicated at the hearing of this appeal, that counsel for the prosecution in a case such as this bear an added duty as a quasi-judicial official.

The prosecutor in a Provincial Offences Act matter is no less a “minister of justice” than their brothers and sisters in a criminal court, and, indeed, may have a higher call of duty in that many of the judicial officers that they appear before were lay persons before their appointment to the Justice of the Peace bench. They may have an added role in assisting the bench in understanding novel or arcane aspects of the law, of evidence or of procedure. In other words, they are more than a representative of

one of the parties in a litigation battle. 24 . In the case before me mistakes were made by the court and the prosecution that fundamentally interfered with the Appellant’s right to cross-examine the officer. 25 . Counsel for the Appellant at trial asked an innocuous question as her first question of the officer in charge: “Officer Johnson, do you agree with me that delay in responding to an emergency could endanger lives?”.

Before that question was answered the counsel for the prosecution was objecting as to the relevance of the question asked, and the presiding judicial officer was speaking the objection himself over the words of the prosecutor at the same time. Counsel for the Appellant at trial explained to the court the basis for her question: she was intending to call evidence as to the exemption of the Appellant’s vehicle from the operation of the

section he was charged under. The court and Appellant’s counsel at trial then were side tracked by an enquiry as to when the Appellant’s book of authorities had been served and filed. At the top of Page 20 of the transcript of the first day of trial, the following exchange took place between the court and the Appellant’s counsel at trial: Ms. McDonald: “It’s a book of authorities. It sets out some relevant sections of the Highway Traffic Act , the Regulation”; The Court: “Ma’am, this officer is on the stand and obviously, you know, as an officer of the court, you’re familiar with what cross-examination is.

You may ask him questions specific to the evidence that he gave today in relation to this matter.” Counsel sought a brief recess to review the evidence that the officer had given in chief. The presiding Justice of the Peace at trial, refusing the request, stated at the bottom of Page 20 continuing to Page 21: “And it’s relevant to the offence before the court which is quite specific. It’s failure to surrender a complete daily inspection report contrary to the Highway Traffic Act , section 107 (7) . . . and he’s given his evidence pertaining to this matter and you may cross-examine him on his evidence.

I won’t allow any digression at this time. It’s on his evidence. It’s cross-examination on his evidence which he has just enunciated, Ma’am. Thank you.” 26 . Ms. McDonald asks four short questions and counsel for the prosecution again interrupts with an objection to the following question at Line 20 on Page 21 of the transcript: Ms. McDonald: “Was the vehicle safe to drive?”; Ms. Patterson: “Objection, Your Worship . . . he hasn’t done an inspection”. The Court: “Ma’am . . . again, the charge before the court is quite simple. It’s fail to surrender a completed daily inspection report.

There’s no charges (sic) before the court about defective vehicles or anything in that manner. It’s a straight forward simple charge, fail to surrender completed daily inspection report. The officer has given his evidence as to what transpired in his opinion on that day and now this is your opportunity to cross-examine him on that evidence. And the court is not interested in anything other than cross-examination of the officer on his evidence on that specific day at this time, Ma’am.” 27 . Counsel for the Appellant at trial then advised the court that she had no further questions of the officer. 28 .

There are two major problems that stem from the dialogue set out above. 29 . First, the Learned Justice of the Peace below improperly limited the scope of the cross-examination of the officer in charge herein.

Second, the prosecution not only allowed the court to fall into error but in fact actively encouraged the court to do so by twice objecting unnecessarily to innocuous questions by the Appellant’s then counsel and by failing to correct the court’s view of the limits of cross-examination which on this occasion were clearly incorrect, particularly after counsel informed the court of the evidentiary path she was seeking to explore with the witness. 30 .

To be clear, questions asked of the officer in charge about the emergent nature of the Appellant’s call were entirely appropriate in cross-examination given the thesis of the defence, and more so when that officer had testified moments before that he was not aware of any exemption provided in the legislation for Hydro One (see Page 16, Line 22 of the transcript of the first day’s evidence). 31 . It is not surprising to me that the Appellant’s counsel at trial, faced with the court’s ruling on this central issue, then chose to end her cross-examination of the officer. 32 .

The act of the court below in preventing the Appellant’s counsel from exploring basic and fundamental issues in her cross-examination of the officer in charge, is a serious error of law and in and of itself amounts to a reversible error. 33 . I turn next to the claim by the Appellant that he was exempted from the application of the

section herein at the time when he was stopped. 34 . The Appellant submits that while he indeed failed to produce the daily inspection report to the officer upon demand, the operation of the Regulation specifically exempted him from having to comply with that demand when he was stopped. Counsel for the Appellant at the hearing of the Appeal agreed that if the Appellant had been stopped by the officer on his way to his initial job site that Saturday morning and had been asked to produce the report he would have been required to produce it under section 107 (7) of the Act .

It is submitted however that as the Appellant was operating a public utility vehicle and was on his way to an emergency at the time he was stopped, he is exempted by Regulation from the requirement to comply with Officer Johnson’s demand. 35 . The Respondent submits that hydro trucks are not public utility vehicles and that in any event the trouble call here was not an emergency such that the exemption applied. 36 .

Section 107 of the Act provides for a code of inspection and maintenance duties to be carried out by the operator and by the driver of a commercial motor vehicle. Subsections 107 (4) to (6) require that certain daily inspections of the vehicle shall be carried out at the responsibility of the operator, that an inspection report shall be prepared, and that the driver shall have in his or her possession ( inter alia ) the daily inspection

schedule and the daily inspection report. Subsection 107 (7) requires that the driver forthwith surrender the

schedule and reports that are required to be in his or her possession, upon demand by a police officer or officer appointed under the Act . Subsection 107 (9) makes it an offence to drive a commercial motor vehicle unless a daily inspection has been carried out and the corresponding report is available. The Appellant is not charged with that offence. 37 . Pursuant to subsection 107 (18) of the Act regulations have been made which elaborate on the various duties set out in

section 107. Ontario Regulation 199/07 , Commercial Motor Vehicle Inspections is the regulation applicable here. 38 .

Section 4 of the Regulation exempts certain vehicles from the application of subparagraphs 107 (4) to (12) inclusive.

Paragraph 4 (1) (1) of the Regulation exempts “an emergency vehicle while responding to or returning from an emergency.” 39 . “Emergency vehicle” is defined by subsection 1 (2) of the Regulation as follows: “(

a) a road service vehicle operated by or on behalf of a road authority, (

b) a vehicle used by a person employed by or on behalf of a police force, or (

c) a vehicle used by or on behalf of a public utility.” 40 . “Emergency” and “public utility” are not defined in the Regulation. 41 . The Appellant submits that I should use the common meaning of both “emergency” and “public utility” in order to find that the Justice of the Peace at trial misapprehended and misapplied the law. The Respondent submits that Hydro One is not a public utility (I am referred to a

section of the Municipal Act which defines public utility), and that the call to which the Appellant was responding was not in any event an emergency. 42 . The Learned Justice of the Peace at trial did not address either issue. His reasons, after a

summary of the evidence, amount to a finding that the Appellant did not do the pre-trip inspection at all that day, even when there was no hint of an emergency, and that therefore he was found to have committed the offence. With respect this was not the issue the Justice of the Peace was called upon to decide. 43 . The charge faced by the Appellant was that when Officer Johnson demanded that he surrender the pre-trip inspection report, he failed to do so. This took place when the Appellant was enroute to the trouble call.

The issue is whether at the time of the demand the Appellant was exempted from the requirement to make the production. Whether the Appellant did the pre-trip inspection is not the issue. 44 . Under

section 107 the operator (as opposed to the driver – the Appellant) may arrange to have someone other than the driver complete the pre-trip inspection report. It is up to the driver to make sure he has such a report when he drives (ss.107 (6) and (9)) and that he produces it on demand (s. 107 (7)). To be clear, it is the operator (defined in the Regulation) who bears the responsibility of ensuring that the pre-trip inspections are carried out and that the driver (the Appellant) is supplied with the appropriate reports to carry in the vehicle.

The operator may mandate certain tasks to be completed by the driver in that regard, but s. 107 (4) places the burden on the operator, not the driver, to ensure that the report in question is completed. That the driver failed to do the “circle check” as the trial Justice of the Peace indicated may be an issue between the operator and the Appellant, and represents evidence on the case as a whole, but it cannot be the sole basis to convict the Appellant on the charge before the court. 45 . I agree with the Appellant that the time in question here is the time when the officer demanded the production of the report.

Section 107 (7) requires that the driver surrender the report to the officer on demand, and the failure to do so is an offence with a set fine of $85.00. The demand to surrender the report was made by the officer while the Appellant was driving his truck to the trouble call at about 12:45 pm on the date of the alleged offence. That is the time in question. The exemption created under paragraphs 1 (2) (

c) and 4 (1) (1) of the Regulation must be considered to see whether that exemption applied to this Appellant. The Justice of the Peace presiding at the trial did not at any time put his mind to this issue. 46 . A vehicle operated on behalf of a public utility comes within the definition of “emergency vehicle” under paragraph 1 (2) (

c) of the Regulation, and emergency vehicles responding to or returning from an emergency are exempted from subsections 107 (4) through (12) of the Act and

Part II of the Regulation. If the Appellant was driving a vehicle operated on behalf of a public utility, and was travelling to an emergency, then he had no duty to surrender the report to the officer on demand at the time he was stopped. 47 . As noted earlier, neither public utility nor emergency are defined by the Act or the Regulation. 48 . The common meaning of a public utility is an enterprise established to regularly provide a commodity which is of public consequence (such as electricity for example), to the public (see Black’s Law Dictionary cited at Tab 1 A of the Appellant’s Book of Authorities). 49 .

Hydro One, the entity that employed the Appellant and owned the commercial vehicle he was driving at the time in question, is one of the independent corporate bodies created by Ontario when Ontario Hydro was separated into several components. Hydro One was established when the Electricity Act, 1998 was passed into law. A brief history of the process is set out by Justice Gans in Payne v. Ontario reported at

(2002) O.J. 1450 . Hydro One distributes electricity throughout Ontario to the benefit of the citizenry of this Province. Prima facie , it is a “public utility”. 50 . The Respondent cites sub-section 1 (1) (the

definitions section) of the Municipal Act, 2001, SO 2001, c. 25, to support the proposition that “public utility” as defined by that act specifically excludes a system to provide electricity to the public. Further, it is submitted that as the Town of Caledon was prosecuting the Appellant this definition ought to apply since the Municipal Act definition applies (via subsection 1 (4)) to all other acts that effect municipalities unless the context otherwise requires. 51 . This submission cannot be given effect to.

The Municipal Act definition of public utility specifically excludes the supply of electricity because the framework for the provision of electricity in Ontario was changed by the reorganization of Ontario Hydro referred to above. Further, there is just no way that the Municipal Act definition referred to above can be imported into the

interpretation of the Act or the regulation. The mischief sought to be addressed by the relevant provisions of this Act has nothing to do with municipalities even though the prosecution of Provincial Offences in many cases has been entrusted to municipalities. 52 . Occam’s razor, not to mention common sense, sometimes requires that, even in the application of the law, common words and phrases be given their common meaning. The Legislature has chosen not to define “public utility” and “emergency” for the purpose of the exemption here.

This means that the Legislature has presumably intended that the common meaning of these words be used to interpret the regulation. “Public utility” has already been discussed above. What of “emergency” then? 53 . An emergency has a simple and well understood meaning: a serious, unexpected and potentially dangerous situation requiring immediate action (see the Oxford English Dictionary or Black’s Law Dictionary for two examples).

54 . In the context of the Regulation it is notable that the first paragraph of the definition of “emergency vehicle” includes road service vehicles. Clearly then the Regulation is not intended only to encompass commonly known emergency vehicles such as fire trucks, ambulances and police cars. In the context of the definition of “emergency vehicle” in the Regulation a road service truck going to the scene of a car accident to repair a guard rail or clean up gravel would be an emergency vehicle, and the exemption would apply.

Considering this example a hydro truck going to the scene of a live wire down off a pole could hardly be considered as responding to a lesser event than a gravel spill. 55 . The evidence lead at trial was convincing evidence as to the potential for harm caused by a live electrical wire hanging down from a pole, and in any event this is notorious. The fact that, after the Appellant was stopped and the demand was made by the officer it turned out that the wire although live was not an immediate threat is simply not relevant.

Until assessing the situation on the ground the Appellant and his partner were entitled to treat this report as an emergency situation. 56 . At the time that the Appellant was enroute to the trouble call and was stopped he was in fact responding to an emergency, and this is the relevant time. At that time the Appellant was operating a vehicle used by or on behalf of a public utility (Hydro One). He was therefore operating an emergency vehicle within the meaning of the regulation and was exempted from having to surrender the report to the officer here. 57 .

This is, of course, not to excuse the Appellant’s apparent failure to make sure that the report had been completed and was secured within the vehicle he was driving, but he is not charged with any other offence here. 58 . Further, this is not to say that hydro trucks responding to other calls would fall within the definition of emergency vehicle such that the exemption applies. The facts of this case are clear however. This hydro truck travelling to this wire down call was travelling to an emergency when the Appellant was stopped. 59 .

The learned Justice of the Peace at trial misapprehended the law and misapplied the law to the facts before him and as such committed a reversible error here. 60 . I therefore find that the trial Justice of the Peace improperly interfered with the cross-examination of the sole crown witness, and misapprehended and misapplied the law here. On either basis the Appellant is entitled to succeed in this appeal. 61 . The Appellant seeks to have this court substitute a finding of not guilty for the disposition made at trial. This matter came before the court as a

Part I certificate of offence under the Provincial Offences Act (the “ POA ”). The appeal is brought under

section 136 of the POA and the powers of this court are found under

section 138 of the POA . Although a new trial is a possible remedy here, in my view it is not necessary to the ends of justice to require a new trial. There is a fulsome evidentiary record here and the end result of any new trial would not be in doubt given the law as I have found it to be here. 62 . I allow the appeal and enter a verdict of not guilty on the charge before this court. _________________________________ Justice Bruce E. Pugsley, OCJ at Orangeville