2017 ONCJ 478, 2017 ONCJ 478

CITATION: Peel (Reg. Mun., Dept. of Public Health) v. Con-Drain Co.

(1983) Ltd. , 2017 ONCJ 478 DATE: July 17, 2017 IN THE MATTER OF Smoke-Free Ontario Act, S.O. 1994, c. 10 Between The Region of Peel (Department of Public Health) prosecutor and Con-Drain Co.

(1983) Ltd. and Edmundo De Medeiros defendants Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Trial held: February 10, 2017 Judgment rendered: July 17, 2017 Charges:

(1) Edmundo De Medeiros, did smoke tobacco in an enclosed work place, contrary to s. 9(1) of the Smoke-Free Ontario Act ; and

(2) Con-Drain Co.

(1983) Ltd., as an employer, failed to ensure compliance with s. 9 of the Smoke-Free Ontario Act in respect to an enclosed workplace, contrary to s. 9(3) (

a) of the Smoke-Free Ontario Act ; Counsel: A. Krywoj, prosecutor for the Region of Peel (Department of Public Health) B. Mcleod, legal representative for Con-Drain Co.

(1983) Ltd. and Edmundo De Medeiros Cases Considered or Referred To:

Cases Considered or Referred To: Cases in respect to the admissibility of hearsay evidence: Ares v. Venner, (SCC), [1970] S.C.R. 608 (S.C.C.). R. v. Bradshaw, 2017 SCC 35 , [2017] S.C.J. No. 35 (S.C.C.). R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535 (S.C.C.). R. v. Khan (1988), (ON CA), 42 C.C.C. (3d) 197 (S.C.C.). R. v Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.). R. v. MacMullin, 2013 ABQB 741 , [2013] A.J. No. 1454 (Alta. Q.B.). R. v. Mapara, 2005 SCC 23 , [2005] 1 S.C.R. 358 (S.C.C.). R. v. Monkhouse, 1987 ABCA 227 , [1987] A.J. No. 1031 (A.C.A.). R. v. O'Neil, 2012 ABCA 162 , [2012] A.J.

No. 516 (A.C.A.). R. v. Starr, 2000 SCC 40 , [2000] 2 SCR 144 (S.C.C.). Cases in respect to admissions against penal interest as an exception to the hearsay rule: Hanzelka v. Oshawa (City), [2011] O.J. No. 4054 (S.C.J.O.), per O’Connell J. R. v. Colavita Construction Ltd., [1993] O.J. No. 4484 (Ont. Ct. (Prov. Div.)), per Atwood J. R. v. Evans (1993), (SCC), 85 C.C.C. (3d) 97 at 104 (S.C.C.). R. v. Germanis, [2001] O.J. No. 2935 (O.C.J.), per Lampkin J. R. v. Huntley, [1995] O.J. No. 2412 (O.C.J.), per Knazan J. R. v. Kingston, [2005] O.J. No. 2147 (O.C.J.), per DeFilippis J.

R. v. Li, 2013 ONCA 81 , [2013] O.J. No. 564 (O.C.A.), per Doherty, Watt, and Pepall JJ.A. R. v. Macatangay, [2003] O.J. No. 5643 (O.C.J.), per Hawke J. R. v. McCullough, [2001] S.J. No. 599 (Sask. Q.B.), per Zarzeczny J. R. v. Molyneaux, [2004] O.J. No. 3053 (O.C.J.), per Devlin J. R. v. Navarro, [2002] O.J. No. 5864 (O.C.J.), per Khawly J. R. v. Norat, [2009] O.J. No. 1083 (O.C.J.), per MacLean J. R. v. Palmaria, [2005] O.J. No. 5276 (O.C.J.), per Shamai, J. R. v. Sambhi, [2003] O.J. No. 3131 (O.C.J.), per Latimer J. R. v. Young, [2005] O.J. No. 6232 (O.C.J.), per Fontana J. R. v. Zilaie, [2002] O.J.

No. 2144 (O.C.J.), per Krelove J. Re Brown and the Queen, [1975] O.J. No. 2547, (1975), (ON SC), 11 O.R. (2d) 7, 64 D.L.R. (3d) 605, 30 C.C.C. (2d)300 (O.H.C.), per Morden J. (in chambers). Cases in respect to the best evidence rule: Papalia v. The Queen (1979), (SCC), 45 C.C.C. (2d) 1 (S.C.C.). R. v. 2934752 Canada Inc. (c.o.b. Highland Transport), [1997] O.J. No. 6308 (O.C.J.), per Masse J. R. v. Cotroni, (SCC), [1961] S.C.R. 335 (S.C.C.). R. v. Huxtable, 2012 ONCJ 611, [2012] O.J. No. 4583 (O.C.J.), per Ray J. R. v. Ryckman, [1998] O.J. No. 6501 (Ont. Ct. (Prov. Div.)), per McGowan J. R. v.

Shayesteh, (ON CA), [1996] O.J. No. 3934, 111 C.C.C. (3d) 225, 1996 O.J. No. 3934 (O.C.A.), per Carthy,Austin and Charron JJ.A.

Cases in respect to admissions against penal interest made by an agent of the corporation: R. v. 2934752 Canada Inc., [2000] O.J. No. 6064 (O.C.J.), per Regis J. R. v. Laidlaw Environmental Services Ltd., [1998] O.J. No. 6426 (Ont. Ct. (Prov. Div.)), per Stone J. R. v. Petro-Canada, 2007 ONCJ 669, [2007] O.J. No. 5351 (O.C.J.), per Andre J. R. v. Ryckman, [1998] O.J. No. 6501 (Ont. Ct. (Prov. Div.)), per McGowan J. R. v. Strand Electric Ltd., (ON CA), [1969] 2 C.C.C. 264 (O.C.A.), per MacKay, McLennan, and Laskin JJ.A. R. v. Swish Maintenance Ltd., [2005] O.J. No. 3958 (O.C.J.), per Adams J. R. v.

Turner (1975), 61 Cr. App. R. 67 (C.A.). Statutes, Regulations and Rules Cited: Commercial Motor Vehicle Inspections Regulation (Highway Traffic Act), O. Reg. 199/07, s. 1(1)(g). Commercial Motor Vehicle Operators’ Information Regulation (Highway Traffic Act), O. Reg. 427/97, ss. 1.2(1)(a), 1.2(1)(b), and1.2(2). Evidence Act, R.S.O. 1990, c. E.23, ss. 34.1 and 35. Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 1(10), 7(5), 16, 16(3), 16(4), and 216.1(3). Hours Of Service Regulation (Highway Traffic Act), O. Reg. 555/06, ss. 3(2) and 3(4). Provincial Offences Act, R.S.O. 1990, c. P.33, s. 48.1.

Smoke-Free Ontario Act, S.O. 1994, c. 10, ss. 1(1), 1(a)(ii), 1(2), 9, 9(1), 9(3), 9(3)(a), and 9.2(1). General Regulation (Smoke-Free Ontario Act), O. Reg. 48/06. Vehicle Permits Regulation (Highway Traffic Act), Reg. 628, R.R.O. 1990, s. 9(1), Sched. 4.

INTRODUCTION [ 1 ] If you happen to be by yourself in your own personal-use motor vehicle while driving or while parked, then there is no law in Ontario that prohibits you from smoking a tobacco cigarette inside your own vehicle -- as long as your vehicle is not sitting in an enclosed public space or enclosed workplace, or located in a prescribed public space where smoking is not legally permitted. [1] But if you are not alone in your motor vehicle, then you are not legally permitted to smoke tobacco inside your motor vehicle if the other people in the vehicle are under the age of 16 years. [2] [ 2 ] On the other hand, if you are not in a personal-use motor vehicle, but instead find yourself driving or parked in a commercial motor vehicle in Ontario, then it is against the law to smoke tobacco inside that commercial vehicle -- even when you are by yourself.

This is because a commercial motor vehicle is considered to be an “enclosed workplace” under s. 1(1) of the Smoke-Free Ontario Act , S.O. 1994 (“ SFOA ”) and no one in Ontario is permitted to smoke tobacco inside an enclosed workplace by virtue of s. 9(1) of the SFOA . This piece of provincial legislation had been enacted in Ontario to protect workers or members of the public from the effects of second-hand smoke while they are in an enclosed workplace.

And, as such, employers are obligated under s. 9(3) of the SFOA to ensure that no one smokes tobacco cigarettes inside an enclosed workplace or other prescribed place over which the employer exercises control. [ 3 ] In this present prosecution under the SFOA , it is alleged that Edmundo De Medeiros (“De Medeiros”), had contravened s. 9(1) of the SFOA by smoking a tobacco cigarette while driving a commercial motor vehicle on a highway, which under the SFOA would be an enclosed workplace.

It would be an enclosed workplace since De Medeiros had been observed inside a pick-up truck, which the prosecution contends is a commercial motor vehicle because it is covered with a roof and a place where employees could or would work in or frequent during the course of their employment. In addition, the owner of that alleged commercial motor vehicle, which the prosecution claims is owned by a corporation named Con-Drain Co.

(1983) Ltd. (“Con-Drain”), had also been charged for contravening s. 9(3) (

a) of the SFOA by failing as an employer to ensure compliance with s. 9 of the SFOA because De Medeiros had been allegedly smoking tobacco in that pick-up truck, which is defined under the SFOA as an enclosed workplace and where such activity is not legally permitted. [ 4 ] Moreover, the key issue that has to be decided in this matter involves considering the nature and weight of particular evidence, which had been adduced by the prosecution at trial, to prove the two defendants had committed their respective offences.

That particular evidence is from the testimony of Peel Regional Police Officer Donald Malott, the only witness who had testified in the trial.

Specifically, the defendants contend that the particular evidence from Officer Malott’s testimony, which could prove that the pick-up truck driven by De Medeiros, is a commercial motor vehicle, as well as the particular evidence that could prove the pick-up truck is owned by Con-Drain, would be inadmissible hearsay evidence, since Officer Malott had only repeated in court for its truth, the information that he had observed on or in the ownership document for the pick-up truck that had been provided to him by De Medeiros.

But more significant is that Officer Malott had also testified that the information that he had observed on the ownership document had also been confirmed by him to be accurate because he had said that he had checked and verified that information with the Ministry of Transportation and police databases that he had accessed. [ 5 ] And, to support the defendants’ contention that Officer Malott’s evidence is inadmissible hearsay, the defendants rely on the case of R. v. Germanis , [2001] O.J.

No. 2935 (O.C.J.) , in which Lampkin J. had held that a police officer’s testimony about the accused’s driver’s licence being a class G2 licence based on that particular information being observed by the officer on the accused’s driver’s licence or observed on the Ministry of Transportation database and then repeated at trial for its truth was hearsay evidence and not admissible.

Lampkin J. had found that this hearsay evidence was inadmissible because it did not fall within any of the traditional exceptions to the hearsay rule, nor would it have been admissible under the case-by-case principled approach to that exclusionary rule, as it had not met the necessity requirement for admission.

It had not met the necessity criterion because Lampkin J. had held that the prosecutors could have properly obtained and entered a certified document issued by the Ministry of Transportation as a business record exception to the hearsay rule, in order to prove or verify what the class of the accused’s driver’s licence had been on the date the accused had been charged.

[6] As such, the defendants submit that because the prosecution in the present case had omitted to provide a certified documentfrom the Ministry of Transportation to prove that the pick-up truck is a commercial motor vehicle or to prove who the registered owner isof that pick-up truck, as had been required in the R. v. Germain case, but instead relies simply on that inadmissible hearsay evidence thathad been given by Officer Malott at trial, then there would be no admissible evidence that would prove the pick-up truck is a commercialmotor vehicle or that Con-Drain Co.

(1983) Ltd. is the owner of the pick-up truck for which it would or could exercise control over. Accordingly, the defendants submit that the prosecution has failed to meet its burden in proving beyond a reasonable doubt all thenecessary elements of the two charges laid respectively against De Medeiros and Con-Drain, and that acquittals should, therefore, beentered for the two defendants. [7] Ergo, there are two key questions that have to be ultimately decided.

First, it has to be resolved whether there is any admissibleevidence that the pick-up truck is a commercial motor vehicle, since that answer will inform whether the pick-up truck is an “enclosedworkplace” under the SFOA. And second, if it is determined that the pick-up truck is a commercial vehicle, then it has to be resolvedwhether there is any admissible evidence as to who the owner is of that pick-up truck, as the prosecution contends that Con-Drain Co.

(1983) Ltd. had been the registered owner of the pick-up truck when De Medeiros had been observed smoking the tobacco cigarette andwho would ultimately be the party that would be responsible for ensuring compliance with the SFOA in respect to that pick-up truckbeing an enclosed workplace. [8] Therefore, in respect to whether Officer Malott’s testimony, on what he had observed and read on the ownership documentprovided to him by De Medeiros and then repeated by Officer Malott at trial for its truth, should be excluded based on the holding in R.v.

Germanis, which the defendants rely on to support their argument for exclusion, it should be pointed out that the Germanis holding isno longer completely persuasive or applicable. This is due to the Germanis holding being supplanted by jurisprudence that had beensubsequently developed and decided using the principled and modern approach for determining the admissibility of hearsay evidence inwhich the admissibility of hearsay evidence is no longer determined by whether it falls within a categorical exception to the hearsay rule:see especially Watt J.A.’s holding in R. v. Li, 2013 ONCA 81 , [2013] O.J.

No. 564 (O.C.A.). Hence, as a result of thedevelopment of the modern hearsay rule, reliable evidence is no longer excluded merely because it would be hearsay evidence that doesnot fall within a common law or traditional exception. [9] Accordingly, in using and applying this principled and modern approach for determining the admissibility of hearsay evidence,Officer Malott’s testimony that the pick-up truck is a commercial motor vehicle and owned by Con-Drain Co.

(1983) Ltd., which hadbeen based on what Malott had observed on the ownership document and then confirmed on the police and Ministry of Transportationdatabases, is admissible hearsay evidence. It is admissible because this hearsay evidence meets both the criteria of necessity andreliability for admission under the case-by-case principled exception to the hearsay rule and its probative value has not been outweighedby any prejudicial effect from its admission.

Furthermore, the prosecution had adduced not only evidence of what Officer Malott hadobserved on the ownership document presented to him by De Medeiros that the pick-up truck was classified as a commercial motorvehicle, but had also adduced other admissible and corroborating evidence that proves the pick-up truck is a commercial motor vehicle.

And, because the pick-up truck is a commercial motor vehicle and because there is no evidence that the pick-up truck was being used forpersonal-use at the time De Medeiros was observed smoking a tobacco cigarette, then it is by consequence an “enclosed workplace” asdefined under the SFOA. Therefore, the prosecution has proven beyond a reasonable doubt that Edmundo De Medeiros had beensmoking tobacco in an enclosed workplace, contrary to s. 9(1) of the SFOA. [10] In addition, the prosecution has also proven beyond a reasonable doubt that Con-Drain Co.

(1983) Ltd. is the owner of the pick-up truck being driven by De Medeiros, based on Officer Malott’s uncontradicted testimony that Con-Drain Co.

(1983) Ltd. is the nameof the registered owner that he had observed on the ownership document provided to him by De Medeiros, which had also beenconfirmed by the information that Officer Malott had observed on the Ministry of Transportation database, which would be a reliablesource for such information. As such, because De Mederios had been smoking in an enclosed workplace, which is the pick-up truckowned by Con-Drain and who meets the definition of “employer” under the SFOA, and because there is no evidence of due diligence byCon-Drain to prevent such prohibited activity, then the prosecution has also proven beyond a reasonable doubt that Con-Drain hascontravened s. 9(3)(

a) of the SFOA by failing as an employer to ensure compliance with s. 9 of the SFOA. [11] Moreover, the trial of the these two charges had been held on February 10, 2017. After final submissions were made by theprosecution and the defendants, judgment was reserved and adjourned to July 14, 2017, for the judgment to be rendered. These,therefore, are the written reasons for judgment: 2.

BACKGROUND [12] At trial, Officer Malott had testified that at approximately 9:40 a.m. on February 1, 2016, he had observed the defendant,Edmundo De Medeiros, driving a white-coloured Ford F-150 pick-up truck on Bovaird Drive, just west of Bramalea Road, in the City ofBrampton, and in the lane closest to the middle of the road. Malott also said he had observed De Medeiros holding a lit tobacco cigarette

in his right hand and in front of his face, smoking that cigarette inside the cab of that pick-up truck. In addition, Malott said that his view had not been obstructed in any way. Officer Malott also said that after he had initiated a stop of the pick-up truck to investigate the driver for smoking a cigarette inside the pick-up truck, Malott said he had observed the driver toss the lit cigarette out the window and that when Malott had been at the window he said he could smell freshly burnt tobacco emanate from the cab of the vehicle.

Moreover, Officer Malott testified that he had observed De Medeiros to be by himself inside that pick-up truck and driving in the lane closest to the centre of the roadway while Malott had been driving eastbound in the middle lane of three eastbound lanes on Bovaird Drive. [ 13 ] Furthermore, Officer Malott said that he is familiar with the smell of burning tobacco and what a tobacco cigarette looks like, since both his parents and his wife are smokers. [ 14 ] In addition, Officer Malott said that after the pick-up truck driven by De Medeiros had stopped, Malott said he had made a demand to De Medeiros for De Medeiros’ driver’s licence and for the permit or ownership document for the pick-up truck, and for proof of insurance for that vehicle.

Officer Malott then said that De Medeiros had provided all three of the requested documents to him. However, Officer Malott said that De Medeiros was not the owner of that pick-up truck, but that the name of the owner of the pick-up truck was an Ontario company named Con-Drain Co.

(1983) Ltd. with an address of 30 Floral Parkway in Concord Ontario, which Officer Malott said he had observed on that ownership document presented to him by De Medeiros. Officer Malott also said that the permit or ownership document that he had received from De Medeiros was a true document and not a photocopy. In addition, Officer Malott said that the licence plate on the vehicle, as well as the make and model of the vehicle, had matched the licence plate and the make and model of the vehicle stated on the permit or ownership document.

Officer Malott had also testified that he had done further checks on the licence plate of the pick-up truck, on De Medeiros’ driver’s licence, and on the vehicle ownership and insurance documents that had been provided to him by De Medeiros, using the Ministry of Transportation databases and other police databases.

Officer Malott then testified that the information contained in those three documents presented to him by De Medeiros were confirmed to be accurate and that he had been satisfied with the identity of the driver of the pick-up truck as Edmundo De Medeiros. [ 15 ] Officer Malott had also testified that the numbering which he had observed on the licence plate for the pick-up truck was “AD61575”, which he said would be a licence plate issued for a commercial motor vehicle as the plate numbering had comprised of 2 letters at the beginning of the sequence, which was then followed by 5 numbers.

Officer Malott also said the pick-up truck was not owned by an individual for personal-use, since he did not see a green sticker on the front licence plate which would indicate to him that the pick-up truck had been designated primarily for transportation use. In addition, Officer Malott said that he had observed the word “COM” at the top of the ownership document presented to him by De Medeiros, which had indicated to Officer Malott that the pick-up truck being driven by the De Medeiros was registered as a commercial motor vehicle.

Moreover, Officer Malott said that he had also observed the letters “CN” on the sides of the pick-up truck, which would have further indicated to Malott of the commercial nature of the pick-up truck.

Officer Malott also said that the ownership document had been a true document with a company name on it, otherwise he would have had to lay the charge of utter forged document. [ 16 ] Moreover, Officer Malott said that that he did not have a copy of the ownership document provided to him by De Medeiros to provide to the court because Officer Malott said that at the time he did not have any authority to seize the ownership document during that traffic stop.

Officer Malott also said that since the true ownership document had listed the pick-up truck as a commercial motor vehicle, then Malott said that he is not required to ask the driver if the vehicle is being used at that time for “personal use”, nor is Malott required to find out if the driver is an employee, since no one in any event would be legally permitted to smoke in an enclosed workplace. [ 17 ] Officer Malott also said that after using the Ministry of Transportation and police databases, which he had accessed for verifying and checking the information contained in the documents presented to him by De Medeiros, Malott said he had decided to charge De Medeiros for smoking in an enclosed workplace, which is contrary to s. 9(1) of the SFOA .

In addition, Officer Malott also said that he had charged Con-Drain Co.

(1983) Ltd., as the owner of the pick-up truck, for contravening s. 9(3) (

a) of the SFOA , which is for the offence of failing as an employer to ensure compliance with s. 9 of the SFOA in respect to having observed De Medeiros smoking tobacco inside the pick-up truck, which is an enclosed workplace. Officer Malott also said he then issued both charges under

Part I Certificates of Offence and then gave both of the

Part I tickets to De Medeiros. [ 18 ] During the trial, only one witness had provided testimony and evidence. That testimony was provided by Officer Malott. As such, there had been no evidence from the defendants that would contradict Officer’s Malott’s testimony, since neither the defendant, Edmundo De Medeiros, nor anyone from the corporate defendant, Con-Drain Co.

(1983) Ltd., had appeared at the trial. However, both defendants had been represented at the trial by their legal representative, who had cross-examined Officer Malott. [ 19 ] In their argument to exclude parts of Officer Malott’s testimony, the defendants submit that in order for the prosecution to prove that the pick-up truck was an enclosed workplace within the meaning of the SFOA , it has to first prove that the pick-up truck is a commercial vehicle.

However, the defendants submit that it had failed to do so, since Officer Malott’s testimony that the pick-up truck is registered as a commercial vehicle would be hearsay evidence, as Officer Malott had testified to what he had observed written on the ownership document that had been provided to him by the driver of the pick-up truck, which would make that evidence inadmissible.

And, since the prosecution had omitted to enter a certified document from the Ministry of Transportation as proof that the pick-up truck is registered as a commercial motor vehicle, then the defendants submit that there would be no legally admissible evidence that the pick- up truck being driven by Edmundo De Medeiros was in fact a commercial motor vehicle. [ 20 ] Furthermore, the defendants contend that Officer Malott’s testimony that the owner of the pick-up truck is Con-Drain Co.

(1983) Ltd. would also be inadmissible hearsay evidence, since Malott had repeated in court for its truth what the name of the owner of the pick-up truck that Malott had observed written on the ownership document. And, because the prosecution had also omitted to enter a certified document from the Ministry of Transportation to prove who the owner is of that pick-up truck, then the defendants contend there is also no proof or legally admissible evidence that Con-Drain Co.

(1983) Ltd. is the registered owner of the pick-up truck being driven by De Medeiros when De Medeiros had been observed by Officer Malott allegedly smoking a tobacco cigarette while driving the pick-up truck. [ 21 ] Accordingly, the defendants submit that the prosecution has not proven that the pick-up truck is a commercial motor vehicle nor that Con-Drain Co.

(1983) Ltd. is the legal owner of that pick-up truck, and as such, the defendants contend that the prosecution has not proven beyond a reasonable doubt that the pick-up truck is an enclosed workplace or that the defendants, Edmundo De Medeiros and Con-Drain Co.

(1983) Ltd. have committed their respective offences. 3. THE CHARGES [ 22 ] As stated in the Certificate of Offence numbered 31605137421B that was issued on February 1, 2016, the defendant, Edmundo De Medeiros, has been charged with a

Part I regulatory offence of smoking tobacco in an enclosed workplace, contrary to s. 9(1) of the Smoke-Free Ontario Act , S.O. 1994, c. 10: Edmundo De Medeiros At Bovaird Dr. West at Bramalea Rd. Brampton Did commit the offence of: Smoke Tobacco in enclosed work place contrary to s. 9(1) of S.F.O.A. (Smoke-Free Ontario Act) 2016 – 02 – 01 9:40 AM [ 23 ] And, as stated on a separate Certificate of Offence numbered 31605137422B that was issued on February 1, 2016, the corporate defendant, Con-Drain Co.

(1983) Ltd., has been charged with a

Part I regulatory offence of failing to ensure compliance with s. 9 in respect to an enclosed workplace, contrary to s. 9(3) (

a) of the Smoke-Free Ontario Act , S.O. 1994, c. 10: Con-Drain Co.

(1983) Ltd. At Bovaird Dr. West at Bramalea Rd. Brampton Did commit the offence of: Failure of employer to ensure compliance contrary to s. 9(3) (

a) of S.F.O.A. (Smoke-Free Ontario Act)

2016 – 02 – 01 9:40 AM 4. ANALYSIS AND DECISION [ 24 ] To decide whether the prosecution has proven these two charges beyond a reasonable doubt, the first question that needs to be determined is whether the prosecution has proven that the Ford F-150 pick-up truck driven by De Medeiros is a commercial motor vehicle.

If the prosecution fails to prove the pick-up truck is a commercial vehicle, then the charges against both defendants would have to be dismissed, as there would be no evidence then that could prove that the pick-up truck meets the definition of an “enclosed workplace” within the meaning of the Smoke-Free Ontario Act , S.O. 1994, c. 10 (“ SFOA”) . [ 25 ] Ergo, if there is admissible evidence that proves beyond a reasonable doubt that the pick-up truck being driven by De Medeiros is a commercial motor vehicle and that he had been smoking a tobacco cigarette while driving that pick-up truck, then the prosecution will have proven that De Medeiros had committed the offence of smoking tobacco in an enclosed workplace contrary to s. 9(1) of the SFOA beyond a reasonable doubt, since a commercial vehicle by its nature would be such a place where employees would work in or frequent during the course of their employment , and would therefore be an enclosed workplace within the meaning of s. 1(1) of the SFOA .

And more important, the pick-up truck would still be an enclosed workplace if it is a commercial motor vehicle, regardless of whether there is an evidence of who the owner of that pick-up truck had been on February 1, 2016. [ 26 ] As well, if the prosecution proves that the pick-up truck is a commercial motor vehicle where employees could work or be found in, and there is admissible evidence which would that prove beyond a reasonable doubt that the pick-up truck being driven by De Medeiros is owned by Con-Drain Co.

(1983) Ltd., then under the SFOA , Con-Drain would meet the definition of an employer who would have been responsible for ensuring that everyone complies with s. 9 of the SFOA by not smoking a tobacco cigarette in an enclosed workplace. And, if it is determined that De Medeiros had been smoking a tobacco cigarette while driving the pick-up truck, then Con-Drain would be found guilty of contravening s. 9(3)(

a) unless it can prove on a balance of probabilities that it had taken all reasonable care in the circumstances to prevent such event from occurring. [ 27 ] To these questions, the prosecution submits that there is proof beyond a reasonable doubt that the pick-up truck is a commercial motor vehicle and it is owned by Con-Drain. Such evidence, the prosecution contends, is from the following:

(1) Officer Malott’s testimony that he had actually observed on the ownership document that had been provided to him by Edmundo De Medeiros, information that had denoted the Ford F-150 pick-up truck being driven by De Medeiros was a commercial motor vehicle and that the registered owner was Con-Drain Co.

(1983) Ltd.;

(2) Officer Malott’s testimony that the information on the ownership document and the other documents provided to him by De Medeiros were accurate based on verifying the information that he had garnered from the documents with what he had observed on the police and on the Ministry of Transportation databases;

(3) Officer Malott’s testimony that he had observed particular numbering on the licence plate attached to the Ford F-150 pick-up truck, which had informed Officer Malott that it was a licence plate for a commercial motor vehicle;

(4) Officer Malott’s testimony that he had observed the lettering “CN” on the doors of the pick-up truck, which Officer Malott believes is also an indication that the pick-up truck was being used as a commercial motor vehicle; and

(5) Officer Malott’s testimony that he did not observed a green sticker on the front licence plate attached to the Ford F-150 pick-up truck, which would have indicated to him that the pick-up truck was being only used primarily for transportation purposes. [ 28 ] On the other hand, the defendants refute the prosecutions’ argument that they have proven the elements of the two offences beyond a reasonable doubt and contend instead that there is no admissible evidence of who the owner of the pick-up truck is nor any evidence that the pick-up truck in question is a commercial motor vehicle, because Officer Malott’s testimony on what he had observed on the ownership document and then repeated in court for its truth, amounts to inadmissible hearsay evidence.

And, akin to how the prosecution proves who the owner is of a particular motor vehicle for the offence of “owner operate a motor vehicle on a highway without insurance”, the defendants submit that the prosecution is also required to obtain and provide a certified document from the Ministry of Transportation to prove who is the legal owner of the motor vehicle and to prove the pick-up truck is classified as a commercial vehicle. (

A) WHY WOULD A PICK-UP TRUCK BE AN “ENCLOSED WORKPLACE”?

[ 29 ] According to s. 9(1) of the SFOA , no one is permitted to smoke tobacco or hold lighted tobacco in an “enclosed workplace”: 9(1) No person shall smoke tobacco or hold lighted tobacco in any enclosed public place or enclosed workplace. [ 30 ] An “enclosed workplace” is defined under s. 1(1) of the SFOA and includes the “inside of any vehicle that is covered by a roof” that is “not primarily a private dwelling” and in which “employees work in or frequent during the course of their employment, whether or not they are acting in the course of their employment at the time” [ emphasis is mine below ]: 1.

(1) In this Act, … “ enclosed workplace” means , (

a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them, (

i) that is covered by a roof , (ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time , and (iii) that is not primarily a private dwelling , or (

b) a prescribed place; [ 31 ] Also, under s. 1(2) of the SFOA , when referring to an enclosed workplace, a “private dwelling” does not specifically refer to a motor vehicle, but includes “Private self-contained living quarters in any multi-unit building or facility or “Any other prescribed place”: Private dwelling 1

(2) For greater certainty, and without restricting the generality of the expression, the following are primarily private dwellings for the purposes of the definition of “enclosed workplace” in subsection (1): 1. Private self-contained living quarters in any multi-unit building or facility. 2. Any other prescribed place. [ 32 ] Ergo, as specified in the definition of an “enclosed workplace” in s. 1(1) of the SFOA , a pick-up truck would be an enclosed workplace if it is a commercial motor vehicle with a roof and a location where employees could or would work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time.

[ 33 ] However, this definition does not specify that a person who is smoking or holding lit tobacco in an enclosed workplace, such as in a pick-up truck, has to be actually engaged or acting as an employee in respect to that vehicle for that vehicle to be classified as an enclosed workplace. Nor does s. 9(1) and s. 1(1) of the SFOA , specifically require the prosecution to prove De Medeiros was acting in the capacity of an employee or that he was employed by Con-Drain Co.

(1983) Ltd., at the time that he had been driving the pick-up truck, since the no-smoking prohibition is not limited to only “employees”, but applies to everyone, as the provision states that “no person” shall smoke or hold tobacco in an enclosed workplace. [ 34 ] On the other hand, evidence that De Medeiros is an employee of the owner of the pick-up truck would be a factor that could aid in establishing that the pick-up truck is a commercial motor vehicle, but it is not a required element of the offence that has to be proven by the prosecution. [ 35 ] As such, the prosecution does not have to prove that the defendant, Edmundo De Medeiros, is an employee or an employee of Con-Drain Co.

(1983) Ltd. to prove the pick-up truck is an enclosed workplace. However, the trier of fact must be satisfied that the inside of the motor vehicle at issue is a vehicle in which employees could or would work in or frequent during the course of their employment. [ 36 ] Moreover, since a commercial motor vehicle by its very nature is a location where employees could or would work or frequent during the course of their employment, then the inside of a pick-up truck covered with a roof that is registered as a commercial motor vehicle would meet the definition of an enclosed workplace.

In addition, evidence which shows that the motor vehicle where the alleged smoking had occurred had been owned by corporation would also be an indication that it is being used in or for a business, as opposed to a motor vehicle that it is owned by a human individual that is intended for their personal use. [ 37 ] Furthermore, the prosecution is not required to prove that a commercial motor vehicle is not being used for personal purposes when someone is observed smoking tobacco in that commercial motor vehicle.

Such evidence of what use was being made of the commercial motor vehicle at the time that the act of smoking tobacco had been observed would be within the knowledge of the person operating the commercial motor vehicle, so it would be up to the person observed smoking tobacco in a commercial motor vehicle that would meet the definition of an enclosed workplace to produce or introduce evidence to the contrary that the commercial motor vehicle was not being used as a commercial motor vehicle, but for a personal purpose at the time the smoking of tobacco had been observed. [ 38 ] Consequently, unless there is evidence to the contrary, the inside of a motor vehicle covered with a roof that is registered as a commercial motor vehicle would be presumptively a location in which employees would work in or frequent during the course of their employment, since it would be reasonable to infer that a motor vehicle registered as a commercial vehicle is not being used for primarily for personal purposes or it would have been properly registered as a “personal-use” motor vehicle and not as a commercial motor vehicle. [ 39 ] Therefore, even where there is no evidence that De Medeiros had been an employee or acting in the course of his employment at the time when he was supposedly observed to be smoking a tobacco cigarette, the inside of the pick-up truck that was being driven by De Medeiros would still be considered an “enclosed workplace” under s. 1 (a)(ii) of the SFOA , if it is proven to be a commercial motor vehicle and a location where employees could or would work in or frequent during the course of their employment -- as long as there is no evidence that the pick-up truck was being used as a “personal-use” motor vehicle at the time the smoking of tobacco inside the pick- up truck had been observed. (

B) IS THERE ANY LEGALLY ADMISSIBLE EVIDENCE THAT THE PICK-UP TRUCK THAT WAS BEING DRIVEN BY DE MEDEIROS IS A COMMERCIAL MOTOR VEHICLE AND THAT IT IS OWNED BY CON-DRAIN CO.

(1983) LTD.? [ 40 ] Officer Malott had testified that (1) he had observed an Ontario licence plate with the numbering of “AD61575” on the pick-up truck and further testified that the numbering on the licence plate had informed him that the licence plate was a commercial licence plate because the plate numbering comprising of 2 letters followed by 5 numbers, which is the sequence and numbering configuration for a commercial licence plate; (2) that Officer Malott had requested the ownership and insurance documents for the pick-up truck and when De Medeiros provided him with the pick-up truck’s ownership document Malott had said that he had observed the word “COM” at the top of the ownership document, which informed Officer Malott that the pick-up truck is a commercial vehicle; (3) that Officer Malott had observed the lettering “CN” on the side doors of the pick-up truck, which Malott said had been further indication the pick-up truck was a commercial motor vehicle; and (4) that Officer Malott had not observed a green sticker on the front licence plate that would indicate the pick-up truck was primarily used for transportation, to make it a “personal-use” pick-up truck.

Furthermore, Officer Malott said that he had observed on the ownership document provided to him by De Medeiros that the pick-up truck was registered to a

company named Con-Drain Co.

(1983) Ltd. and that after accessing his police databases and the Ministry of Transportation database and doing further checks on the ownership document he said that he was able to confirm the authenticity and accuracy of the contents of the ownership document provided to him by De Medeiros. [ 41 ] In addition, Officer Malott said that he did not seize the ownership document for the pick-up truck as he was not lawfully permitted to do so in the circumstances. [ 42 ] Hence, only Officer Malott’s testimony on what he had observed on the ownership document provided to him by De Medeiros as to the name of the owner and as to the registered use of the pick-up truck and then confirmed by him on the Ministry of Transportation database, and then repeated in court for its truth, is hearsay evidence.

On the other hand, Malott’s testimony of observing the lettering “CN” on the doors of the pick-up truck, the numbering on the licence plate with particular sequencing, and the absence of a green sticker on the front licence plate that would have indicated to him that the pick-up truck was only being used primarily for transportation, is not hearsay evidence.

(1) A Pick-Up Truck Is Legally Considered To Be Commercial Motor Vehicle Under Ontario’s Highway Traffic Act [ 43 ] In considering whether the pick-up truck being driven by De Medeiros is a commercial motor vehicle, it is important to note that a pick-up truck is legally considered in Ontario to be a commercial motor vehicle for the purpose of the Highway Traffic Act , R.S.O. 1990, c. H.8, unless it has been registered for “personal use” with the Ministry of Transportation. [ 44 ] Pick-up trucks are specifically defined as commercial motor vehicles under s. 1(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8, where it states that a “commercial motor vehicle” is a motor vehicle that has permanently attached thereto a “truck or delivery body” [ emphasis is mine below ]: 1(1) In this Act, … “commercial motor vehicle” means a motor vehicle having permanently attached thereto a truck or delivery body and includes ambulances, hearses, casket wagons, fire apparatus, buses and tractors used for hauling purposes on the highways; [ 45 ] In addition, s. 1(10) of the Highway Traffic Act provides that t he Lieutenant Governor in Council may make regulations defining “commercial motor vehicle” differently than from its definition in subsection 1(1) for the purposes of any Part or provision of the Highway Traffic Act : Definition of “commercial motor vehicle” 1(10) The Lieutenant Governor in Council may make regulations defining “commercial motor vehicle” differently from its definition in subsection (1) for the purposes of any Part or provision of this Act , and those regulations may include or exclude any vehicle or class of vehicles for the purposes of that definition, including the inclusion or exclusion of vehicles or classes of vehicles based on a use or uses to which a vehicle may be put. [ 46 ] Ergo, under the s. 1(1) Highway Traffic Act definition, a pick-up truck, as a type of motor vehicle, would be a commercial vehicle since it is a motor vehicle that would have a truck body permanently attached.

(2) Vehicle Permits Regulation , Reg. 628, R.R.O. 1990 [ 47 ] Furthermore, under the heading, “Annual Validation Fees For Additional Classes Of Vehicles”, in

Schedule 4 of the Vehicle Permits Regulation , Reg. 628, R.R.O. 1990, a

schedule of fees is set out for specific classes of commercial motor vehicles which includes types of commercial motor vehicles that are for “personal use”. [ 48 ] In particular, under item #11 in

Schedule 4, there is a specific fee for a vehicle permit for the category of a commercial motor vehicle or a combination of a commercial motor vehicle and trailer or trailers, other than a bus, that has a gross weight of not more than 3,000 kilograms. And, under item #12 there is a specific fee for a vehicle permit for the category of a commercial motor vehicle or a combination of a commercial motor vehicle and trailer or trailers, other than a bus, that has a gross weight of not more than 3,000 kilograms, where the vehicle is “used primarily for personal transportation”.

And, under item #13 there is a specific fee for a vehicle permit for the category of a commercial motor vehicle or a combination of a commercial motor vehicle and trailer or trailers, other than a bus, that has a gross weight of not more than 3,000 kilograms, where the permit holder is a resident of Northern Ontario who “uses the vehicle primarily for personal transportation”:

schedule 4 annual validation fees for additional classes of vehicles Item Class of Vehicle Annual Fee in dollars From January 1, 2016 to August 31, 2016 Annual Fee in dollars On and after September 1, 2016 … 11. For a commercial motor vehicle or a combination of a commercial motor vehicle and trailer or trailers, other than a bus, with a gross weight of not more than 3,000 kilograms 108 120 12.

For a commercial motor vehicle or a combination of a commercial motor vehicle and trailer or trailers, other than a bus, with a gross weight of not more than 3,000 kilograms, if the vehicle is used primarily for personal transportation 108 120 13.

For a commercial motor vehicle or a combination of a commercial motor vehicle and trailer or trailers, other than a bus, with a gross weight of not more than 3,000 kilograms, if the permit holder is a resident of Northern Ontario who uses the vehicle primarily for personal transportation 54 60 [ 49 ] In short, commercial motor vehicles can be registered as “personal-use” vehicles with the Ministry of Transportation.

(3) Validation Tags Are Required To Be Placed On The Front Licence Plate Of A Commercial Motor Vehicle [ 50 ] Also, under s. 9(1) of the Vehicle Permits Regulation , Reg. 628, R.R.O. 1990, the validation sticker or tag for a commercial vehicle is required to be affixed to the front licence plate:

Number Plates 9

(1) Evidence of validation issued for use on a number plate shall be affixed , (

a) where the permit is for a commercial motor vehicle, in the upper right corner of the number plate exposed on the front of the motor vehicle ; and (

b) in all other cases, in the upper right corner of the number plate exposed on the rear of the motor vehicle.

(4) When A Pick-Up Truck Is Only Used For “Personal Purposes”, The Owner Of The Pick-Up Truck Will Not Be Obligated To Comply With Certain Requirements That Owners Of Commercial Motor Vehicles Have To Comply With [ 51 ] Three regulations enacted under the Highway Traffic Act , R.S.O. 1990, c. H.8, also specifically refer to a pick-up truck as a commercial motor vehicle. These are the Commercial Motor Vehicle Operators’ Information Regulation , O. Reg. 427/97; the Commercial Motor Vehicle Inspections Regulation , O. Reg. 199/07 ; and the H ours Of Service Regulation O. Reg. 555/06 .

On the other hand, these same regulations also provide for specific circumstances when a pick-up truck is a “personal-use” type of commercial motor vehicle that would exempt the owner or operator of the pick-up truck from complying with particular regulations that owners of commercial motor vehicles have to comply with. (

a) Commercial Motor Vehicle Operators’ Information Regulation , O. Reg. 427/97 [ 52 ] In addition, under s. 1.2(2) of the Commercial Motor Vehicle Operators’ Information Regulation , O.

Reg. 427/97, which is a regulation that sets out the requirements for operators of commercial motor vehicles to have a Commercial Vehicle Operators Registration (CVOR) certificate for their commercial vehicles as required under s. 16 of the Highway Traffic Act , which is a provision that prohibits someone from driving or operating a commercial motor vehicle on a highway unless the operator of the vehicle is the holder of a valid CVOR certificate.

Moreover, under s. 1.2(2), a pick-up truck is legally defined as a “commercial” motor vehicle where it has a manufacturer’s gross vehicle weight rating of 6,000 kilograms or less and is fitted with either the unmodified original box installed by the manufacturer or an unmodified replacement box that duplicates the one that had been installed by the manufacturer: 1.2(2) In this section, “ pick-up truck” means a commercial motor vehicle that, (

a) has a manufacturer’s gross vehicle weight rating of 6,000 kilograms or less , and (

b) is fitted with either , (

i) the original box that was installed by the manufacturer, which has not been modified , or (ii) a replacement box that duplicates the one that was installed by the manufacturer, which has not been modified . [ 53 ] However, if the pick-up truck is being only used for “personal purposes without compensation” and “it is not carrying, or towing

a trailer that is carrying, commercial cargo or tools or equipment of a type normally used for commercial purposes”, then under s. 1.2(1) (

a) and (

b) of the Commercial Motor Vehicle Operators’ Information Regulation , O. Reg. 427/97, the owner of a pick-up truck is exempt from the requirement under s. 16 of the Highway Traffic Act to obtain a CVOR certificate for that pick-up truck [ emphasis is mine below ]: 1.2(1) A pick-up truck is exempt from the requirements of

section 16 of the Act if , (

a) it is being used for personal purposes without compensation ; and (

b) it is not carrying, or towing a trailer that is carrying, commercial cargo or tools or equipment of a type normally used for commercial purposes . (

b) Commercial Motor Vehicle Inspections Regulation , O. Reg. 199/07 [ 54 ] And, under s. 1(1)(

g) of the Commercial Motor Vehicle Inspections Regulation , O. Reg. 199/07 , which is a regulation that requires the operators of commercial motor vehicles to conduct daily pre-trip inspections of their vehicles before driving on a highway in Ontario, a pick-up truck is not considered to be a commercial motor vehicle for the purposes of this Regulation where the pick-up truck is being used for personal purposes without compensation and is also not carrying, or towing a trailer that is carrying, commercial cargo or tools or equipment of a type normally used for commercial purposes [ emphasis is mine below ]:

Definitions And

Interpretation 1(1) in

section 107 of the act and in this regulation, “commercial motor vehicle ” includes a school purposes vehicle but does not include , … (

g) a pick-up truck that , (

i) is being used for personal purposes without compensation, and (ii) is not carrying, or towing a trailer that is carrying, commercial cargo or tools or equipment of a type normally used for commercial purposes, or … (

c) Hours Of Service Regulation , O. Reg. 555/06 [ 55 ] Furthermore, under s. 3(4) of the Hours Of Service Regulation , O. Reg. 555/06 , a regulation which governs the number of hours that the driver of a commercial motor vehicle can legally operate or drive a commercial motor vehicle on a highway during a specific period, a pick-up truck is defined as a commercial motor vehicle, which is the same definition used to define a commercial motor vehicle under s. 1(1) of the Highway Traffic Act .

However, s. 3(2) of the Hours Of Service Regulation provides that the regulation does not apply to the driver or operator driving a pick-up truck when the pick-up truck is being used for personal purposes without compensation and is not carrying, or towing a trailer that is carrying commercial cargo or tools or equipment of a type normally used for commercial purposes [ emphasis is mine below ]:

Exemptions from Regulation … 3

(2) This Regulation does not apply to a driver, or the operator of such driver, while driving a pick-up truck that , (

a) is being used for personal purposes without compensation ; and (

b) is not carrying, or towing a trailer that is carrying, commercial cargo or tools or equipment of a type normally used for commercial purposes . … 3(4) In this section, “pick-up truck” means a commercial motor vehicle that, (

a) has a manufacturer’s gross vehicle weight rating of 6,000 kilograms or less , and (

b) is fitted with either , (

i) the original box that was installed by the manufacturer, which has not been modified , or (ii) a replacement box that duplicates the one that was installed by the manufacturer, which has not been modified .

(5) How Would Anyone Know If A Pick-Up Truck Has Been Registered With The Ministry Of Transportation For “Personal Use” Only? [ 56 ] As for evidence that the pick-up truck being driven by De Medeiros was not registered as a “personal-use” motor vehicle, Officer Malott had testified that he did not observe a green sticker on the front licence plate of the pick-up truck which would indicate to him that the pick-up truck was used primarily for transportation. Moreover, items #12 and #13 of

Schedule 4 of the Vehicle Permits Regulation , Reg. 628, R.R.O. 1990, which establishes specific permit fees for commercial motor vehicles that are “used primarily for personal transportation” or where the permit holder is a resident of Northern Ontario who “uses the vehicle primarily for personal transportation”, would support Officer Malott’s testimony that a pick-up truck may be registered with the Ministry of Transportation for “personal use” and that such use can be indicated by a special sticker attached to the front licence plate of the pick-up truck. [ 57 ] In addition, a pick-up truck that is not used for business or commercial purposes, nor to tow a trailer that is used for business or commercial purposes, but for personal purposes, then the owner of that pick-up truck would be exempt from complying with certain regulations enacted under the Highway Traffic Act that owners or operators of commercial motor vehicles are obligated or required to follow. [ 58 ] In sum, the Highway Traffic Act considers all pickup trucks to be classified legally as commercial motor vehicles, but the owner of a pickup truck can be exempted from complying with the requirements for obtaining a CVOR certificate, for conducting a daily pre- trip inspection, and for complying with the hours of service regulation, if the pick-up truck is being used for personal purposes without compensation and has a manufacturer's gross vehicle weight rating of 6,000 kg. (13,227 lb.) or less, and is fitted with either the original box that was installed by the manufacturer, which has not been modified, or a replacement box that duplicates the one that was installed

by the manufacturer and has not been modified, and is not carrying or towing a trailer carrying commercial cargo or tools or equipment ofa type normally used for commercial purposes. [59] Therefore, either the permit or ownership document or a special sticker issued by the Ministry of Transportation to be attached tothe front licence plate would have to specifically indicate that the pick-up truck had been registered as a “personal-use” pick-up truck inorder that enforcement officials would know that this particular type of commercial motor vehicle would be exempt from particularregulations enacted under the Highway Traffic Act.

And since it would be the owner of the pick-up truck that would have to declare andregister the pick-up truck with the Ministry of Transportation as a commercial motor vehicle for “personal use”, then the owner of thepick-up truck would have personal knowledge of its declared non-commercial purpose and the record of this declared non-commercialpurpose for the pick-up truck would be part of the Ministry of Transportation’s database that could be accessed by a police officer.

Onthe other hand, even if the pick-up truck had not been registered as a “personal-use” commercial motor vehicle, the driver or operator of apick-up truck could still inform and convince an enforcement official that the pick-up truck was being used by the operator or driver foronly “personal purposes” at that particular moment. (

a) The driver or operator of a pick-up truck would have the obligation to prove that the pick-up truck had been used for“personal purposes” to establish that the pick-up truck is not an enclosed workplace for the purposes of the SFOA [60] Considering that only De Medeiros would know whether the pick-up truck he was driving was being used for “personalpurposes” at the time he had been observed smoking a tobacco cigarette inside the cab of the pick-up truck, then the obligation to adduceevidence that the pick-up truck was being used for “personal purposes” at the time rests with De Medeiros.

The prosecution, on theother hand, is not required to prove that the pick-up truck was not being used by De Medeiros for “personal purposes” at the time, oncethe prosecution proves the pick-up truck is a commercial motor vehicle, in order to establish the pick-up truck is an enclosed workplaceunder the SFOA.

(6) Is Officer Malott’s Testimony That The Pick-Up Truck Is A Commercial Motor Vehicle And That It Is Owned By Con-Drain, Which Officer Malott Had Garnered From What He Had Observed On The Ownership Document Provided To Him ByDe Medeiros, Admissible For Its Truth? [61] As required under s. 7(5) of the Highway Traffic Act, De Medeiros had been legally required to provide the ownership or vehiclepermit document for the pick-up truck to Officer Malott upon the demand for that document from Officer Malott.

After receiving theownership document for the pick-up truck from De Medeiros, Malott then read the information contained in the ownership document,which he said had indicated that the pick-up truck was a “commercial” motor vehicle as it had the letters “COM” indicated on the top ofthe ownership document. Malott also said the registered owner stated on the ownership document was an Ontario company named Con-Drain Co.

(1983) Ltd., with an address of 30 Floral Parkway in Concord, Ontario.

Malott then testified that he had checked theinformation on the ownership document with the police and Ministry of Transportation databases and confirmed the information heobserved on the document had been accurate. [62] However, the defendants contend that this evidence would amount to inadmissible hearsay evidence and that since theprosecution had failed to enter a certified document issued by the Ministry of Transportation to prove the pick-up truck was a commercialmotor vehicle and to prove who the registered owner of the pick-up truck had been on February 1, 2016, then the prosecution had failedto prove the necessary elements to establish that the defendants had committed their respective charges beyond a reasonable doubt. (

a) Hearsay Evidence Is Presumptively Inadmissible [63] Putting aside that a pick-up truck is legally defined as a commercial motor vehicle under s. 1(1) of the Highway Traffic Act, thedefendants’ argument that Officer Malott’s testimony on the information that he had observed on the ownership document for the pick-up truck and then repeated at trial for its truth would be inadmissible hearsay evidence, will be addressed first. [64] In R. v Bradshaw, 2017 SCC 35 , [2017] S.C.J.

No. 35, at para. 1, Karakatsanis J., writing for the majority of theSupreme Court, has neatly summarized why hearsay evidence is presumptively inadmissible, but that it may be exceptionally admittedinto evidence under the principled exception when the evidence meets the criteria of necessity and threshold reliability: Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because — in the absence of

the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact to assess itstruth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness.

However, hearsay may exceptionallybe admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability. [65] Furthermore, in R. v Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787, at paras. 34 to 36, Charron J. for the SupremeCourt, had acknowledged that the essential defining features of hearsay are that the statement is adduced to prove the truth of its contentsand that there is the absence of a contemporaneous opportunity to cross-examine the declarant of that statement.

In addition, Charron J.confirmed that hearsay includes statements and communications expressed by conduct. In addition, Charron J. noted that the basic ruleof evidence is that all relevant evidence is admissible, but that there are exceptions to that basic rule, such as the rule against hearsay. Moreover, she also explained that hearsay evidence is not admissible absent an exception, and that it is the difficulty of testing hearsayevidence for its reliability that underlies the rule excluding hearsay statements generally.

However, Charron J. then explained that thealleviation of this difficulty is what forms the basis of the exceptions to the hearsay rule [emphasis is mine below]: The basic rule of evidence is that all relevant evidence is admissible. There are a number of exceptions to this basic rule. One of the mainexceptions is the rule against hearsay: absent an exception, hearsay evidence is not admissible. Hearsay evidence is not excludedbecause it is irrelevant -- there is no need for a special rule to exclude irrelevant evidence.

Rather, as we shall see, it is the difficulty oftesting hearsay evidence that underlies the exclusionary rule and, generally, the alleviation of this difficulty that forms the basis of theexceptions to the rule. Although hearsay evidence includes communications expressed by conduct, I will generally refer to hearsaystatements only. … At the outset, it is important to determine what is and what is not hearsay. The difficulties in defining hearsay encountered by courts andlearned authors have been canvassed before and need not be repeated here: see R. v. Abbey, (SCC), [1982] 2 S.C.R. 24,at pp. 40-41, per Dickson J.

It is sufficient to note, as this Court did in Starr, at para. 159, that the more recent

definitions of hearsay arefocussed on the central concern underlying the hearsay rule: the difficulty of testing the reliability of the declarant's assertion. See, forexample, R. v. O'Brien, (SCC), [1978] 1 S.C.R. 591, at pp. 593-94. Our adversary system puts a premium on thecalling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whosetestimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Becausehearsay evidence comes in a different form, it raises particular concerns.

The general exclusionary rule is a recognition of the difficultyfor a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and whohas not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than itdeserves.

The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove thetruth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. … The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when theevidence is tendered to prove the truth of its contents that the need to test its reliability arises. Consider the following example.

At anaccused's trial on a charge for impaired driving, a police officer testifies that he stopped the accused's car because he receivedinformation from an unidentified caller that the car was driven by a person who had just left a local tavern in a "very drunk" condition.If the statement about the inebriated condition of the driver is introduced for the sole purpose of establishing the police officer's groundsfor stopping the vehicle, it does not matter whether the unidentified caller's statement was accurate, exaggerated, or even false.

Even ifthe statement is totally unfounded, that fact does not take away from the officer's explanation of his actions. If, on the other hand, thestatement is tendered as proof that the accused was in fact impaired, the trier of fact's inability to test the reliability of the statementraises real concerns. Hence, only in the latter circumstance is the evidence about the caller's statement defined as hearsay and subject tothe general exclusionary rule. … [66] Charron J. also reiterated at para. 42 in R. v.

Khelawon, that it has long been recognized that a rigid application of theexclusionary rule would result in the unwarranted loss of much valuable evidence, especially where the hearsay statement, because ofthe way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form.

Charron J. then confirmed that in deciding whether hearsay evidence should be admitted into the trial, hearsay evidence is considered tobe presumptively inadmissible unless it is shown on a balance of probabilities by the party wishing to have it admitted that the hearsayevidence falls within an exception to the hearsay rule, but that if it does not fall under a hearsay exception, then it may still be admitted ifindicia of reliability and necessity are established on a voir dire [emphasis is mine below]: It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuableevidence.

The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficientmeans of testing it despite its hearsay form. Hence, a number of common law exceptions were gradually created. A rigid application ofthese exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission

in others. Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie thetraditional common law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, s. 1420, at p. 153). ThisCourt first accepted this approach in Khan and later recognized its primacy in Starr. The governing framework, based on Starr, wasrecently summarized in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions tothe hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by theprincipled approach. The exception can be modified as necessary to bring it into compliance. (

c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability arelacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity areestablished on a voir dire.

(7) The Ruling In R. v. Germanis [67] To support their argument that Officer Malott’s testimony on what he had read in the ownership document for the pick-up truckand then repeated in court for its truth is inadmissible hearsay evidence, and that there is no admissible evidence of who the registeredowner is of the pick-up truck that was being driven by De Medeiros or that the pick-up truck is a commercial vehicle, the defendants relyon the case of R. v. Germanis, [2001] O.J. No. 2935 (O.C.J.), decided by Lampkin J.

In that case, at paras. 19 to 22 of Germanis,Lampkin J. had held that the viva voce evidence of the constable who had repeated in court that the accused was a class G2 licenceholder, which the constable had based on the information that the constable had observed on the accused’s driver’s licence, and thenrecorded in the constable’s notes, was hearsay evidence. And, after considering the traditional categories for admitting hearsay,Lampkin J. had concluded that the hearsay evidence did not fit into any of the traditional exceptions to the hearsay rule, and as such, itcould not be admitted for its truth.

Then, in considering whether the hearsay evidence could still be admitted under the case-by-caseprincipled approach, Lampkin J. had held that it did not meet the “necessity” requirement, since the Highway Traffic Act had permittedthe prosecution to tender in court a certified copy of the accused’s driver’s licence and its restrictions, if any, as well as the class of thatlicence from the records of the Ministry of Transportation in order to prove the contents of those documents that had been provided bythe accused to the police officer [emphasis is mine below]: The rules of hearsay evidence have been somewhat relaxed in recent years and there is now a principled approach to its admissibility.Where original direct evidence is not available, hearsay evidence is admissible where it is necessary and reliable.

The tendered evidencemust meet a certain threshold of reliability for its admissibility. R. v. Khan, (SCC), [1990] 2 S.C.R. 531, 113 N.R. 53, 41O.A.C. 353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1, [1990] S.C.J. No. 81; R. v. K.G.B., (SCC), [1993] 1 S.C.R. 740, 148N.R. 241, 61 O.A.C. 1, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1, [1993] S.C.J. No. 22. There is no doubt that the evidence of the constable pertaining to the contents of the licence is hearsay evidence. He testified frommemory and the notes that he made. His evidence does not fit into any of the pigeon-holes of the old common law exceptions to the hearsay rule: (

a) admissions and confessions; (

b) statements by deceased persons; (

c) reputation; and

(

d) statements admitted as part of the res gestae. Nor does his viva voce evidence satisfy the requirement of necessity in the sense contemplated by the new jurisprudence. It is commonground that the Ministry of Transportation and Communications is required by law to keep records of permits of persons licensed todrive in the Province of Ontario and of the restrictions and classes of drivers' licences. Subsection 210(7) of the Highway Traffic Actpermits the proof of the contents of those documents in court by tendering certified copies thereof.

While that is not the only method ofproving the contents of the permit or licence, the viva voce evidence of the officer in proof thereof is hearsay and not admissible for itstruth. It is not a question of challenging the accuracy of the officer's evidence given by consulting his notes. It is putting the prosecutionto the strict proof of all elements of the offence. The necessity requirement is simply not fulfilled. [68] Furthermore, Atwood J. in R. v. Colavita Construction Ltd., [1993] O.J. No. 4484 (Ont. Ct. (Prov. Div.)); Masse J. in R. v.2934752 Canada Inc. (c.o.b. as Highland Transport), [1997] O.J.

No. 6308 (Ont. Ct. (Prov. Div.)); Krelove J. in R. v. Zilaie, [2002] O.J.No. 2144 (O.C.J.); and Khawly J. in R. v. Navarro, [2002] O.J. No. 5864 (O.C.J.), had also held in their respective decisions that apolice officer testifying as to what information had been observed on a document that had been given to the police officer, did not falleither within any traditional or common law exception to the hearsay rule or that it would be properly admissible under the principledexception to the hearsay rule. (

a) But Other Courts At The Same Level Have Disagreed With The Ruling In R. v. Germanis [69] In regards to the applicability and persuasive value of R. v. Germanis to this proceeding, it should be emphasized that Lampkin J.in arriving at his decision on not admitting the hearsay evidence had considered and relied on R. v. Colavita Construction Ltd., [1993]O.J. No. 4484 (Ont. Ct. (Prov. Div.)) and R. v. 2934752 Canada Inc. (c.o.b. as Highland Transport), [1997] O.J. No. 6308 (Ont. Ct.(Prov.

Div.)), where it had been held that a police officer’s testimony on what the officer had observed on a document and repeated incourt for its truth had not been admissible because it had violated the hearsay rule. However, those particular cases had been decidedbefore the Supreme Court of Canada had rendered its decisions in R. v. Starr, 2000 SCC 40 , [2000] 2 SCR 144 on September29, 2000, in R. v. Mapara, 2005 SCC 23 , [2005] 1 S.C.R. 358 in 2005, and in R. v.

Khelawon 2006 SCC 57 , [2006] 2S.C.R. 787 in 2006, where the Supreme Court had developed and adopted a more flexible and principled approach for the admission ofhearsay evidence into a trial, so that hearsay evidence as indirect or secondary evidence could be admitted for its truth on a case-by-caseprincipled exception to the rule against hearsay, where it met the criteria of necessity and reliability. [70] Moreover, in R. v.

Khelawon, Charron J. had noted at para. 42, that the Supreme Court had long recognized that a rigidapplication of the exclusionary rule would result in the unwarranted loss of much valuable evidence. As well, Charron J. had noted thata rigid application of the traditional exceptions to the hearsay rule had also proven to be problematic, since it led to the needlessexclusion of evidence in some cases, or its unwarranted admission in others.

In addition, Charron J. had reaffirmed that because of theproblems that had arisen in the application of the hearsay rule that it had been necessary to adopt a more flexible approach based on thetwo guiding principles of necessity and reliability [emphasis is mine below]: It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuableevidence. The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficientmeans of testing it despite its hearsay form.

Hence, a number of common law exceptions were gradually created. A rigid application ofthese exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admissionin others. Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie thetraditional common law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, s. 1420, at p. 153).

ThisCourt first accepted this approach in Khan and later recognized its primacy in Starr. … [71] In addition, Charron J., at paras. 49 and 78 of R. v. Khelawon, pointed out that the “necessity” requirement for the admission ofhearsay evidence had been founded on society's interest in getting at the truth. And, because it is not always possible to meet the optimaltest of contemporaneous cross-examination, Charron J. noted that it is crucial in the interests of justice to consider whether the evidenceshould nonetheless be admitted in its hearsay form rather than simply losing the value of that evidence,.

Moreover, Charron J. clarifiedthat “necessity” should not be equated with the unavailability of the witness, since the necessity criterion should be given a flexibledefinition where “necessity” would be based on the unavailability of the testimony and not simply on the unavailability of the witness. As for the criterion of “reliability” for admitting hearsay evidence, Charron J. held that it is about ensuring the integrity of the trialprocess which requires that the hearsay evidence not be admitted unless it is sufficiently reliable to overcome the dangers arising fromthe difficulty of testing it.

However, Charron J. explained that even if the two criteria are met, the trial judge still has the discretion toexclude that hearsay evidence to ensure a fair trial where its probative value is outweighed by its prejudicial effect [emphasis is minebelow]:

The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. Thecriterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test ofcontemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justiceto consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity ofthe trial process.

The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising fromthe difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neitherof which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of thehearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to theprocess.

In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by meansother than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trialfairness.

However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the twocriteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicialeffect. … As we know, the Court ultimately ruled in B. (K.G.), and the principle is now well established, that necessity is not to be equated withthe unavailability of the witness. The necessity criterion is given a flexible definition.

In some cases, such as in B. (K.G.) where a witnessrecants an earlier statement, necessity is based on the unavailability of the testimony, not the witness.

Notwithstanding the fact that thenecessity criterion can be met on varied bases, the context giving rise to the need for the evidence in its hearsay form may well impacton the degree of reliability required to justify its admission. … [72] Ergo, even though it would be this more flexible and principled approach that is required to be used for determining whether thehearsay evidence from Officer Malott should be admitted for its truth, it should still be emphasized that other courts at the same level inOntario had subsequently disregarded or disagreed with Lampkin J.’s holding in R. v.

Germanis. [73] In particular, in R. v. Macatangay, [2003] O.J.

No. 5643 (O.C.J.), at para. 79, Hawke J. had disagreed with Lampkin J.’sreasoning in Germanis and held that in her particular case, the police officer’s testimony on what he had observed on the accused’sdriver’s licence provided to him and then recorded in his notes was an “admission against penal interest” made by the accused driver,which would then be a traditional exception to the hearsay rule that can be used as evidence of the truth of the contents of that documentand that it had been available to consider along with all the other evidence: I do not disagree with Justice Lampkin's analysis of why that is hearsay, but where I differ is I view this as an admission.

And anadmission is an exception to the hearsay rule and as such, admissions may be used as evidence of the truth of the contents. And thisadmission was available to the justice to consider along with all the other evidence at trial. So the appeal is dismissed. [74] Also, in R. v. Norat, [2009] O.J.

No. 1083 (O.C.J.), MacLean J., sitting as a Provincial Offences Appeal Court, had to considerthe issue of whether the hearsay evidence from the police officer, who had obtained and recorded the name of the defendant and theClass G2 license status of the accused from the information the officer had actually observed on the accused’s driver’s licence, should beexcluded or admitted for its truth.

In concluding that the production of the documents by the accused in the case before her was an“admission by the accused”, Maclean J., at paras. 12-14, and 18 of Norat, had disagreed with Lampkin J’s finding in Germanis that thepolice officer’s testimony did not fall into a traditional exception, and instead found the hearsay evidence of the police officer in the casebefore her to be an “admission” by the accused driver and admissible as a traditional or common law exception to the hearsay rule[emphasis is mine below] In facts similar to the ones before this Court, Justice Krelove sitting on a Provincial Offences Appeal in R. v.

Zilaie [2002] O.J. No. 2144(O.C.J.), found that the Crown could have proven ownership by filing a certificate of the Registrar of Motor Vehicles pursuant to s. 210of the Highway Traffic Act. At paragraph 4 the Court states: 4 Constable Light's testimony that she was given an ownership document by the owner which she reviewed and

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