Ontario (Ministry of Transportation) v. Sisti, 2018 ONCJ 125

CITATION: Ontario (Ministry of Transportation) v. Sisti , 2018 ONCJ 125 DATE: February 27, 2018 Ontario Court of Justice Brampton, Ontario IN THE MATTER OF the Highway Traffic Act, R.S.O 1990, c. H.8 and the Restricted Use Of Left Lanes By Commercial Motor Vehicles Regulation, R.R.O. 1990, Reg. 608 Between Her Majesty The Queen In Right Of Ontario As Represented By The Ministry of Transportation prosecutor and Pietro Sisti defendant Quon J.P. Reasons for Judgment Trial held: October 24, 2017. Judgment released on: February 27, 2018. Charge: s. 1(1) R.R.O. 1990, Reg. 608 – “prohibited use of left lane on King’s Highway”

Counsel: P. Moore, counsel for the Ministry of Transportation J. Kaloty, legal representative for the defendant, Pietro Sisti Cases Considered or Referred To: Galbiati v. Regina (City), [1971] S.J. No. 213 (Sask. Q.B.), per Sirois J. Deering v. Scugog (Township), 2010 ONSC 5502 , [2010] O.J. No. 4229 (S.C.J.O.), per Howden J. Houser v. West Lincoln (Township), [1983] O.J. No. 2178 (O.C.A.), Brooke, Zuber, and Cory JJ.A. La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] S.C.J. No. 63 (S.C.C.). R. v. Clark, [1974] O.J. No. 1904 (O.C.A.), per Jessup, Dubin, and Estey, JJ.A.

R. v. Garbarino, [2010] O.J. No. 3168 (O.C.J.), per LeDressay J. R. v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154, [1995] S.C.J. No. 94,102 C.C.C. (3d) 144 (S.C.C.). R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55 (S.C.C.). R. v. Higgins (1981), (NS CA), 46 N.S.R. (2d) 80, 60 C.C.C. (2d) 246 (N.S.C.A.). R. v. Hughes, [2015] A.J. No. 870 (A.Q.B.), per Veit J. R. v. Lavelle, (ON SC), [1958] O.J. No. 346 (O.H.C.J.), per Landreville J. R. v. Margetis, [1988] O.J. No. 2864, 9 M.V.R. (2d) 19 (O.H.C.J.), per Eberle J. R. v. McLaren, [1981] O.J. No. 51, 10 M.V.R. 42 (O.C.A.), per Martin, Morden and Thorson JJ.A. R. v.

Niu, [2015] O.J. No. 3757 (O.C.J.), per Bourque J.

R. v. Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Strong, (NS SC), [1988] N.S.J. No. 456, 13 M.V.R. (2d) 106 (N.S. Co. Ct.), per MacDonnell J. R. v. Wholesale Travel Group Inc. (1991), (SCC), 67 C.C.C. (3d) 193, [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79(S.C.C.). Toronto (City) v. Brent, [2013] O.J. No. 2493 (O.C.J.), per Nakatsuru J. Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 128(1)(a), 147(1), 182(1), 182(2), 185, 185(1), 186, 186(1), 186(3), and 214(1). General Regulation (Off-Road Vehicles Act, R.S.O. 1990, c.

O.4), R.R.O. 1990, Reg. 863, s. 4(2), Sched. 1, s. 1. Provincial Offences Act, R.S.O. 1990, P.33, ss. 47(3) and 81. Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, ss. 7(1), 7(2), and 32(1). Restricted Use Of Left Lanes By Commercial Motor VehiclesRegulation (Highway Traffic Act) R.R.O. 1990, Reg. 608, ss.1(1), 1(2), 2, 2(1), 2(2), 3, 3(1), 3(2), 3(3), and Sched. 2, s. 1.2. Signs Regulation (Highway Traffic Act) R.R.O. 1990, Reg. 615,ss. 44, 45, and 47. Authorities Considered or Referred To: Book 5 (Regulatory Signs) of the Ontario Traffic Manual (March 2000), p. 111 in

section 11.1, online: Ontario Ministry ofTransportation website Exhibits entered: Exhibit "1" - certified copy of Ministry of Transportation document dated August 9, 2017, in respect to Pietro Sisti’s driver’s licenceinformation, which indicates that he has a Class A driver’s licence with Z = Air Brake endorsement. (2 pages)

Exhibit "2" - copy of photograph of Pietro Sisti’s driver’s licence (1 page) Exhibit "3" - copy of photograph taken by MTO Officer Whan on August 9, 2017, of the dump truck being driven by Pietro Sisti. (1 page) Exhibit "4" - certified copy of Ministry of Transportation document dated August 9, 2017, in respect to licence plate number AE12176 issued by the province of Ontario, which was issued for a 2014 commercial red-coloured Kenworth dump truck with 4 axles and indicating that it has a Registered Gross Weight of 37,000 kg and also indicating that the registered owner is Clipper Construction Ltd. of 16 Melanie Drive, Suite 200, Brampton, Ontario. (2 pages) Exhibit "5" - copy of photograph taken by MTO Officer Whan on August 9, 2017, of the vehicle permit for the dump truck with plate number 1444340197 indicating that Clipper Construction Ltd. of 16 Melanie Drive, Suite 200, Brampton, Ontario is the lessee and the owner is GE Canada Leasing Services Company at 2300 Meadowvale Blvd., Mississauga, Ontario. (1 page) Exhibit "6" - certified copy of Ministry of Transportation document dated August 9, 2017, in respect to the CVOR Certificate # 027-642- 788, indicating that the operator is Clipper Construction Ltd. of 16 Melanie Drive, Suite 200, Brampton, Ontario, and issued on 1989-03- 21. (2 pages) 1.

INTRODUCTION [ 1 ] Signs, signs, everywhere there are signs! For motorists, there are regulatory signs, warning signs, information and direction signs -- and even temporary condition signs. They tell us to do this or don't do that. They crowd our view of the scenery. They even invade the recesses of our minds. And for this particular Highway Traffic Act case, the sign had essentially said “commercial motor vehicles over 6.5 meters need not be driving in the left lane”.

Oh, but did the driver charged in this case even see that posted traffic sign which had prohibited the use of the left lane of that particular stretch of a provincial highway by commercial motor vehicles over 6.5 meters in length? But more importantly, do you always need evidence that the driver of a commercial vehicle over 6.5 meters in length had been in a position to see that particular traffic sign before the driver could be found guilty of contravening that Ontario traffic law, which prohibits the use of the left lane for that particular type of commercial motor vehicle at that particular location?

In other words, is it an essential element of the offence, which the prosecution is required to prove beyond a reasonable doubt, that the driver would have objectively had the opportunity to observe that specific traffic sign or that the driver ought to have seen that traffic sign? [ 2 ] Now, in the present case, the defendant, Pietro Sisti, on August 9, 2017, at 11:16 a.m., had been driving a commercial dump truck, which had measured 9.95 meters in length.

He had been driving in the eastbound lanes of Highway 401, in the vicinity of the Trafalgar Road bridge and Highway 407, which is in the Town of Milton, Ontario. Highway 401 is a provincial highway that has been designated as part of the King’s Highway of Ontario. At that location, commercial motor vehicles over 6.5 meters in length are prohibited by a Highway Traffic Act regulation from driving in the left lane of eastbound Highway 401.

While the defendant was driving in the left lane of three eastbound lanes of Highway 401, unluckily for him, MTO Officer Whan, a transportation enforcement officer from the Ministry of Transportation, had also been travelling eastbound on Highway 401 several car lengths in front of the defendant’s dump truck and had observed the dump truck being driven in that left lane, to which that left-lane prohibition had applied.

As a result, the enforcement officer stopped the dump truck and then charged the defendant for committing the offence of “prohibited use of left lane on King’s Highway”, contrary to s. 1(1) of the Restricted Use Of Left Lanes By Commercial Motor Vehicles Regulation ( Highway Traffic Act ), R.R.O. 1990, Reg. 608 ( “O.

Reg. 608” ). [ 3 ] However, if such type of commercial motor vehicle that is over 6.5 meters in length had been a bus, an ambulance or a fire apparatus, or if it had been actually engaged in maintenance or construction work at the time and location in question, or if there had been an emergency situation occurring which had required the use of that left lane by that particular class of commercial motor vehicle, as provided for under ss. 1(1) and 1(2) of O. Reg. 608, then the commercial motor vehicle would be exempted from that left-lane driving prohibition.

As for the purpose of that left-lane driving prohibition, the Ontario Traffic Manual indicates that such prohibition is intended for stopping heavy or long commercial trucks from travelling in the left lanes of a highway with three or more lanes in each direction where they may impede the flow or visibility of other traffic. [1] This prohibition against commercial vehicles over 6.5 meters in length using the left lane for that particular stretch of eastbound Highway 401 is set out in s. 1.2 of

Schedule 2 of O. Reg. 608 and applies to the left lane of eastbound Highway 401 between the western point situated at the intersection of Highway 8 and Highway 401 in the City of Cambridge, Ontario, and the eastern point that is 779 meters west of the intersection of Mavis Road and Highway 401 in the City of Mississauga (which is a distance of approximately 64 kilometers over which that left-lane driving prohibition would apply to commercial vehicles over 6.5 meters in length).

[ 4 ] Officer Whan had also testified that there is a “prohibited use of the left-lane” traffic sign, as proscribed under s. 2(1) of O.

Reg. 608, for eastbound traffic of Highway 401 that is posted and displayed on the Trafalgar Road bridge that traverses over Highway 401 above the eastbound left lane, and which is a point west of where Officer Whan said he had actually pulled over the commercial dump truck. [ 5 ] However, at trial MTO Officer Whan had first testified that he had believed that he had first observed the dump truck west of the Trafalgar Road bridge, but under cross-examination he said he been unable to recall for certain whether he had first observed the commercial dump truck actually before or after the bridge located at Trafalgar Road, which had been the location of where MTO Officer Whan had said he had observed on that day a traffic sign placed on the bridge that is directly over the eastbound left lane of Highway 401, which had indicated that commercial motor vehicles over 6.5 meters in length were not permitted to be driven in that particular left eastbound lane.

Hence, as a result of MTO Officer Whan not being able to say for certain that he had actually observed the commercial dump truck being driven on eastbound Highway 401 at a point west of that Trafalgar Road bridge where the left-lane prohibition traffic sign had been posted and displayed, the defendant’s legal representative contends that the prosecution has not proven that the defendant would have been aware of that prohibition against commercial motor vehicles over 6.5 meters in length driving in the left lane of eastbound Highway 401.

As such, the defendant’s legal representative submits that reasonable doubt has been created because the defendant’s dump truck could have entered onto eastbound Highway 401 after, or east of, the Trafalgar Road bridge (although there is no evidence of that suggestion), so that the defendant would not have been able to have observed that left-lane prohibition traffic sign that had been posted and displayed on the Trafalgar Road bridge, which would mean that the defendant could or would not have known or been made aware of that left-lane driving prohibition that applied to the particular vehicle he was driving. [ 6 ] In addition, the defendant’s legal representative contends that MTO Officer Whan had failed to provide evidence that the left- lane prohibition traffic sign located on the Trafalgar Road bridge that traverses over Highway 401 had complied with the proscribed shape, colouring, markings, or dimensions for that type of sign, or that it had been properly placed according to the requirements for that particular left-lane prohibition traffic sign, which are prescribed in O.

Reg. 608.

As such, the defendant’s legal representative also argues that there is no evidence that the left-lane prohibition traffic sign that Officer Whan had observed on the Trafalgar Road bridge had been a legal or bona fide traffic sign. [ 7 ] In response to the defence arguments, the prosecution argues that because the defendant has not been charged with an offence under s. 182(2) of the H.T.A. of contravening or disobeying a particular traffic sign, but had been charged instead with not complying with a regulation which prohibited the driving of a commercial motor vehicle more than 6.5 meters in length in the left lane of eastbound Highway 401; as well that O.

Reg. 608 does not expressly mandate that signs for that left-lane driving prohibition have to be posted in respect to a provincial highway; and also because ignorance of the law is not a defence, then a left-lane prohibition traffic sign informing drivers of commercial motor vehicles over 6.5 meters that driving in the left lane is prohibited at that location is not legally required to be posted, erected, or displayed by the Ontario government in respect to Highway 401.

To further support this contention that a traffic sign is not legally required to be posted, erected, or displayed for this particular left-lane driving prohibition for a provincial highway, the prosecution also submits that according to ss. 185(1) and 186(3) of the H.T.A. , which when read in conjunction with O. Reg. 608, has expressly stated that a left-lane prohibition traffic sign as prescribed under ss. 2 and 3 of O. Reg. 608 would only be legally required to be posted, erected, or displayed if the highway or roadway in question had been under the jurisdiction of a municipality.

Furthermore, the prosecution submits that since Highway 401 is a highway under the jurisdiction of the Ontario Government (Ministry of Transportation), that when s. 185 of the H.T.A. , which authorizes the Ontario government to pass regulations prohibiting the use of the left lane on a highway by a particular class of motor vehicles is read in conjunction with O.

Reg. 608, it is not specifically expressed or declared, nor is there an implied requirement that signage is legally required to be posted or displayed for the particular left-lane driving prohibition that is set out under s. 1(1) of Reg. 608 when it applies to a provincial highway.

Moreover, the prosecution submits that it is only s. 186(3) of the H.T.A. , which specifically and expressly states that if the municipality prohibits the use of a left lane on a municipal highway by enacting a bylaw then it also is legally required to post, erect, or display a left-lane prohibition traffic sign. [ 8 ] In addition, the prosecution submits that s. 2 of O.

Reg. 608, which sets out the prescribed requirements for the form, dimensions, and the placement for that specific left-lane prohibition traffic sign, would only be applicable when such traffic signs are to be posted, erected, or displayed in respect to a municipal road, but since Highway 401 is a provincial highway, then there would be no such legal requirement for the posting, erection, or display of that prescribed sign.

Nor, as the prosecution further submits, are they required in this case to prove beyond a reasonable doubt that the left-lane prohibition traffic sign posted or displayed on the Trafalgar Road bridge had complied with its prescribed form, dimensions, and placement set out in O.

Reg. 608, when such signage is not legally required, in any event, for a provincial highway. [ 9 ] Ergo, the legal issues that have to be resolved in this regulatory prosecution brought by the Ministry of Transportation, are: (1) whether the prosecution is required to prove beyond a reasonable doubt that the defendant ought to have known or been made aware of the left-lane driving prohibition by being able to objectively show that the defendant had been in a position to observe that left-lane prohibition traffic sign, which would have informed the defendant about the prohibition against a commercial motor vehicle over 6.5 meters in length being driven in the left lane of that particular highway; (2) whether a left-lane prohibition traffic sign as prescribed under ss. 2 and 3 of O.

Reg. 608 is legally required to be posted, erected, or displayed on a provincial highway for the purposes of the “prohibited use of left lane on King’s Highway” offence that is set out in s. 1(1) of O. Reg. 608; and (3) if the left-lane prohibition traffic sign is required to be posted or displayed, then whether the prosecution is required to prove beyond a reasonable doubt that the left-lane prohibition traffic sign displayed on the Trafalgar Road bridge had complied with the form, dimensions, and the placement of the sign as

proscribed by either s. 2 or s. 3 of O. Reg. 608. [10] In answer to the first question, the prosecution does not have the legal burden to prove that the defendant ought to have known orbeen aware of the left-lane driving prohibition by having to show that the defendant had been in a position objectively to observe theleft-lane prohibition traffic sign. Firstly, the defendant has been charged with committing a strict liability regulatory offence in whichthe prosecution is not legally required to prove any mental element.

In other words, the prosecution only has a legal burden to prove theactus reus of the offence beyond a reasonable doubt and is not legally required to prove that the defendant had the requisite mens rea ormental fault in committing the actus reus of the offence. Secondly, in order for the prosecution to prove that the defendant hadcommitted the “prohibited use of left lane on King’s Highway” offence beyond a reasonable doubt, there is nothing contained in s. 1(1)or any other provision of O.

Reg. 608 that expressly or by implication requires the prosecution to prove, as an essential element of theoffence, that the defendant ought to have known or been aware of the left-lane driving prohibition by objectively being a position toobserve the left-lane prohibition traffic sign posted or displayed on the Trafalgar Road bridge.

Thirdly, the defendant has not beencharged with the offence of “disobeying a sign” under s. 182(2) of the H.T.A., which would have required the prosecution to prove as anelement of that particular offence that the defendant ought to have known or been aware of that left-lane driving prohibition forcommercial motor vehicles longer than 6.5 meters in length by objectively being in a position to observe the left-lane prohibition trafficsign that is posted and displayed on the Trafalgar Road bridge, which could be proven by Officer Whan observing the defendant drivingeastbound on Highway 401 at a point west of the location of that left-lane prohibition traffic sign posted on the Traffic Road bridge.

Inshort, proving the offence of disobeying a particular traffic sign would have required the prosecution to prove that an accused motoristwould have been in a position objectively to have observed that impugned sign, otherwise there would be no traffic sign that thedefendant could have or ought to have observed, so as to disobey it. [11] And, for the answer to the second question, it is evident that in reading both ss. 185 and 186(3) of the H.T.A. in conjunction withO. Reg. 608, that the left-lane prohibition traffic signs prescribed respectively under ss. 2 and 3 of O.

Reg. 608 are only legally requiredto be posted, erected, or displayed on a municipal highway and not in respect to a provincial highway. Specifically, s. 186(3) of theH.T.A., expressly states that municipalities who enact a bylaw prohibiting the use of the left lane of a municipal highway are legallyrequired to erect traffic signs as prescribed by ss. 2 and 3 of O. Reg. 608 over or near the left lane of that highway, so that the signs canbe seen by the drivers of commercial motor vehicles entering the highway from connecting or intersecting highways. On the other hand,both s. 185 of the H.T.A. and O.

Reg. 608 are silent about any legal requirement of the Ontario government to post, erect, or display thatparticular left-lane prohibition traffic sign prescribed under ss. 2 and 3 of O.

Reg. 608 in respect to a provincial highway. [12] And, for the answer to the third question, even though there had been a left-lane prohibition traffic sign posted and displayed onthe Trafalgar Road bridge and despite there being no legal requirement of the Ontario government to post, erect, or display that left-laneprohibition traffic sign on or for a provincial highway, there is still a rebuttable presumption of regularity which applies to that particulartraffic sign in respect to the dimensions, colouring, wording, placement, and height measurements as prescribed under s. 2 of O. Reg.608: R. v.

Garbarino, [2010] O.J. No. 3168 (O.C.J.) and R. v. Lavelle, (ON SC), [1958] O.J. No. 346 (O.H.C.J.). Assuch, the prosecution is not required to prove that the left-lane prohibition traffic sign posted on the Trafalgar Road bridge complies withthe prescribed requirements for that sign. But more importantly, this presumption of regularity in which government bodies are assumednot to post, erect, or display traffic signs unless they have complied with the shape, colouring, markings, dimensions or placementprescribed for that particular sign, has not been displaced or rebutted by any of the evidence adduced at trial.

Accordingly, there is noevidence which has been adduced that would prove the left-lane prohibition traffic sign posted and displayed on the Trafalgar Roadbridge is an invalid traffic sign. [13] Moreover, MTO Officer Whan’s testimony has not been undermined during cross-examination, nor contradicted by any evidencethat he had indeed observed the commercial dump truck measuring over 6.5 meters in length driving in the left lane of eastboundHighway 401, when it had been prohibited from doing so, for that part of eastbound Highway 401.

Therefore, based on MTO OfficerWhan’s credible testimony the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of theoffence for the charge of “prohibited use of left lane on King’s Highway”, contrary to s. 1(1) of O. Reg. 608. In addition, there is noevidence that, at the time and location in question, the defendant’s dump truck had been engaged in maintenance or construction or thatthere had been an emergency that had required the use of the left lane by the defendant’s dump truck, as an exception provided under ss.1(1) and 1(2) of O.

Reg. 608, which would exempt the dump truck from the prohibition against using the left lane of eastbound Highway401. [14] And, in respect to any due diligence defence, the defendant did not testify nor appear at trial. And, since there is no evidence thatthe defendant had taken all reasonable care in the circumstances to avoid the event or that he had been under a mistaken belief of fact, iftrue, would make the act or omission innocent, then the defence of due diligence has not been established by the defendant on a balanceof probabilities.

As such, the prosecution has proven beyond a reasonable doubt that the defendant is guilty of committing the offence of“prohibited use of left lane on King’s Highway”, contrary to s. 1(1) of O. Reg. 608. [15] The trial of this H.T.A. charge had been held on October 24, 2017. After final submissions were made by the prosecution andthe defendant’s legal representative, judgment was reserved and adjourned for the judgment to be rendered on February 27, 2018. These,therefore, are the written reasons for judgment:

2. BACKGROUND [ 16 ] In the trial, only one witness testified. That witness was MTO Officer Whan, who was the transportation enforcement officer from the Ministry of Transportation that had charged the defendant with committing the H.T.A. offence of “prohibited use of left lane on King’s Highway”, contrary to s. 1(1) of O.

Reg. 608. [ 17 ] In his testimony, MTO Officer Whan had said that on August 9, 2017, at 11:16 a.m., he had been travelling in his Ministry motor vehicle, in the eastbound lanes of Highway 401 and heading towards James Snow Parkway, in the Town of Milton, which is in the Regional Municipality of Halton, and near where Highway 407 would intersect with Highway 401. He also said that he had been travelling in the right lane and had believed at that time that he had been heading to the weigh scale located at Trafalgar Road.

In addition, he said the traffic at that time had been light and the traffic was moving at 100 k.p.h. MTO Officer Whan also said he had observed a 4-axle dump truck in motion. He further said that the dump truck was a Kenworth model dump truck with an Ontario commercial licence plate attached that had been numbered AE12176.

He also said the dump truck was registered to Clipper Construction Ltd. and had a registered weight of 37,000 kilograms. [ 18 ] When he had first observed the dump truck, MTO Officer Whan said that he himself had been driving in the right-hand eastbound lane of Highway 401 and believes that he had actually observed the dump truck before reaching Trafalgar Road, since Trafalgar Road had been in the area where he had been closest to. He then said that he had moved his cruiser into the middle lane and had observed that a transport truck and trailer had been travelling directly behind him.

He then said he had observed that dump truck travelling in the left lane behind both his cruiser and the transport truck and trailer. Then MTO Officer Whan said the dump truck had continued driving in the left eastbound lane of Highway 401 and then he saw it drive pass both the transport truck and trailer and his own cruiser, which were both still travelling in the middle eastbound lane. MTO Officer Whan also said that the dump truck had passed his cruiser and the transport truck and trailer on their left. In addition, he said he had observed the dump truck for about only 10 seconds.

Then MTO Officer Whan said that he had activated his lights behind the dump truck, which was now driving in the center lane, to pull over the dump truck because commercial motor vehicles which are more than 6.5 meters in length are prohibited from driving in the left lane. The dump truck was later measured by MTO Officer Whan with a tape measure. He said that he had measured the dump truck to be 32 feet and 8 inches, which would be about 9.95 meters in length.

In addition, he said the dump truck had stopped for him on Highway 401, near where Highway 407 intersects with Highway 401. [ 19 ] After the driver of the dump truck had stopped for him, Officer Whan said the driver had identified himself as Pietro Sisti. Officer Whan also provided the driver’s birthdate and said that the driver was 49 years old.

In addition, Officer Whan said he had taken a photograph of Pietro Sisti ‘s driver’s licence, which Officer Whan subsequently submitted at trial a copy of that photograph of the licence as evidence of the identity of the driver of the dump truck (see Ex. 2). [ 20 ] When asked in cross-examination at what point did he actually observe the commercial dump truck in the left eastbound lane of Highway 401, MTO Officer Whan stated that he could not recall exactly, except that it had been near Trafalgar Road. However, he pointed out that the entire

section of eastbound Highway 401 in that locale prohibits the use of the left lane by all commercial motor vehicles longer than 6.5 meters in length. [ 21 ] In addition, MTO Officer Whan had described in his testimony a traffic sign which he said he had observed on that day on the Trafalgar Road bridge, that had been posted over the left eastbound lane of Highway 401. That sign, he said, had wording and symbols that had informed drivers of commercial motor vehicles measuring more than 6.5 meters in length, that driving such commercial motor vehicles in the left eastbound lane of Highway 401 was prohibited.

He also said that when shown the left-lane prohibition traffic sign prescribed in s. 2 of O. Reg. 608, that the particular sign on the Trafalgar bridge he had observed had looked similar to the one depicted in s. 2 of O. Reg. 608. He also said the sign in question was either mounted on the pillar or on the bridge above the left eastbound lane. He then described the sign as a white sign with graphic depiction of a truck with a circle around it and a diagonal line across the truck, as well as the words “OVER 6.5 METERS” underneath the graphic depiction of the truck.

He also said there was an arrow symbol pointing down that was located beneath the graphic depiction of a truck and the wording. However, Officer Whan said that he did not take a photograph of that particular left-lane prohibition traffic sign, although he said that he normally does. However, he then said that he did mention that particular sign in his notes in which he said the sign had been near Trafalgar Road. Furthermore, Officer Whan said that he does not know how high the sign had been posted above the roadway.

In addition, Officer Whan said the offence had occurred after the dump truck would have driven pass the left-lane driving prohibition sign. [ 22 ] Furthermore, MTO Officer Whan said that there are other such signs prohibiting commercial motor vehicles and trucks over 6.5 meters in length from driving in the left lane that are located throughout Highway 401, which prohibition applies from Cambridge, Ontario to Mavis Road. However, he said that there is an exception to that left-lane driving prohibition which is the area on Highway 401 that is from Mavis Road to Highway 410 because the lanes merge there.

He then said that there are also left-lane prohibition traffic signs located at the Steeles Avenue overpass for eastbound Highway 401, one at Guelph Line, and one sign that he also believes is

located at the Highway 25 bridge that goes over Highway 401. [ 23 ] Moreover, MTO Officer Whan had testified that there is no High-Occupancy Vehicle lane (or H.O.V. lane) at that stretch of Highway 401 where he had observed the dump truck travelling in the left lane. 3. THE CHARGE [ 24 ] The defendant has been charged under a

Part I Certificate of Offence numbered 2109301Z that was issued on August 9, 2017, for committing the following offence: Pietro Sisti , of [residential address removed for privacy], Caledon, Ontario, On the day of 2017 – 08 – 09 11:16 A.M. At HIGHWAY 401 E/B Near HIGHWAY 407, Town of Milton HALTON REGION Did commit the offence of: prohibited use of left lane on King’s Highway Contrary to Highway Traffic Act, Regulation 608, Sect. 1(1) 4. ISSUES [ 25 ] In order to determine if the defendant has committed the H.T.A. offence of “ prohibited use of left lane on King’s Highway” beyond a reasonable doubt, the following issues need to be resolved:

(1) Has the prosecution proven that the defendant had committed the actus reus of the “ prohibited use of left lane on King’s Highway” offence beyond a reasonable doubt?

(2) Does the prosecution need to prove as an element of the offence that the defendant had been aware of or ought to have been aware of the left-lane driving prohibition at that particular part of eastbound Highway 401, by having to establish that the commercial dump truck had been actually driving at some point west of the Trafalgar Road bridge where the left-lane prohibition traffic sign had been posted and displayed for eastbound motorists who would have then reasonably had the opportunity to observe that particular traffic sign?

(3) Is the Ontario government (Ministry of Transportation) legally required to post, erect, or display the left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 in respect to a provincial highway?

(4) Is the prosecution required to prove beyond a reasonable doubt that the left-lane prohibition traffic sign that had been posted and displayed on the Trafalgar Road bridge had complied with the prescribed size, colouring, markings, dimensions, and placement set out in s. 2 of O. Reg. 608?

(5) If the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of “ prohibited use of left lane on King’s Highway” , then has the defendant made out one of the two branches of the due diligence defence

on a balance of probabilities, so that the defendant would not be convicted of committing that offence? 5. ANALYSIS AND DECISION [ 26 ] The defence contend on several grounds that the prosecution has not proven the “prohibited use of left lane on King’s Highway” charge against the defendant beyond a reasonable doubt.

As such, the defence submits that the defendant should be acquitted of the charge. [ 27 ] First of all, the defence contends there is no evidence that the left-lane prohibition traffic sign that is posted on the Trafalgar Road bridge had complied with the requirements prescribed under ss. 2 and 3 of O. Reg. 608 for that particular sign in regards to the colouring, symbols, wording, dimensions, and its placement.

As a result, the defence contends that there is no evidence of a valid traffic sign for which the defendant could or would have had to comply with. [ 28 ] Secondly, the defence submits that since MTO Officer Whan had not been able to credibly give for certain the location of where he had first observed the defendant’s commercial dump truck that was being driven in the eastbound left lane of Highway 401, especially on whether MTO Officer Whan had actually observed the dump truck being driven at some point west of the Trafalgar Road bridge where the left-lane prohibition traffic sign had been posted, then the defence contends that MTO Officer Whan had only assumed in his testimony that the defendant would have seen the posted left-lane prohibition traffic sign.

And, as a consequence, the defence contends that the prosecution has not proven beyond a reasonable doubt that the defendant would have been aware of or ought to have been aware of that left-lane driving prohibition for eastbound Highway 401, for the location in question. [ 29 ] In reply to the defence’s argument for an acquittal, the prosecution argues that in order to prove the particular offence in question, it is unlike the situation where the left-lane driving prohibition is for a municipal road, since there is no legal requirement that a traffic sign, which would inform drivers of commercial motor vehicles longer than 6.5 meters that the use of the left lane of that particular highway is prohibited, has to be actually posted, erected, or displayed on or for a provincial highway, as it would be required for a municipal highway. [ 30 ] The grounds to support the prosecution’s position are the following: (1) that the alleged offence had occurred on a provincial highway as opposed to a municipal road; (2) that s. 185 of the H.T.A. , which authorizes the Ministry of Transportation to pass regulations restricting the use of specific lanes of a provincial highway by particular vehicles, does not legally require traffic signs to be posted by the Ministry in respect to that particular lane restriction by commercial motor vehicles over 6.5. meters in length for a provincial highway; while in contrast, s. 186 of the H.T.A. does require traffic signs to be legally posted or displayed by a municipality when the lane use prohibition is for a municipal road; (3) that the defendant has not been charged with contravening or disobeying an actual traffic sign or for a “disobey sign” offence, but had been charged instead with committing the offence of “prohibited use of left lane on King’s Highway”, which unlike the “disobey sign” offence under s. 182(2) of the H.T.A. would not have required evidence of a posted traffic sign that had been visible and unobstructed, or proof that the motorist who is charged with the offence of actually disobeying a particular posted traffic sign would have been in a position objectively to have observed that particular sign in order to disobey it; (4) that the offence for which the defendant had been charged with committing has been laid under an Ontario Regulation rather than one laid under a municipal bylaw or in relation to a traffic sign authorized by municipal bylaw and in which ignorance of the law would not be an available defence for breaching a provincially enacted regulation; and (5) that for the specific regulation provided for in O.

Reg. 608, under which the defendant is charged, it does not expressly require that a left-lane prohibition traffic sign has to be actually or legally posted or displayed for a provincial highway, as opposed to the situation proscribed in s. 186(3) of the H.T.A. , which does expressly require that a left-lane prohibition traffic sign has to be actually or legally posted or displayed where the left-lane prohibition is for a municipal road, and in which a left-lane prohibition traffic sign has to be authorized under a municipal bylaw for that specific left-lane driving prohibition. [ 31 ] Ergo, the key questions in determining whether the defendant has committed the offence of “ prohibited use of left lane on King’s Highway” , contrary to s. 1(1) of O.

Reg. 608, beyond a reasonable doubt are: (1) whether the prosecution is required to prove beyond a reasonable doubt that the defendant ought to have known or been made aware about the left-lane driving prohibition for the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge in the Town of Milton by being able to objectively show that the defendant had been in a position to observe that left-lane prohibition traffic sign posted on the Trafalgar Road bridge, which would have informed the defendant about the prohibition against a commercial motor vehicle over 6.5 meters in length being driven in the left lane of that particular highway; (2) whether a left-lane prohibition traffic sign as prescribed under ss. 2 and 3 of O.

Reg. 608 is legally required to be posted, erected, or displayed on a provincial highway for the purposes of the “prohibited use of left lane on King’s Highway” offence that is set out in s. 1(1) of O. Reg. 608; and (3) if that left-lane prohibition traffic sign prescribed under ss. 2 and 3 of O.

Reg. 608 is legally required to be posted or displayed in respect to Highway 401, then whether the prosecution has proven beyond a reasonable doubt that the left-lane prohibition traffic sign displayed on the Trafalgar Road bridge had complied with the form, dimensions, and the placement of that particular sign, as proscribed by s. 2 of O. Reg. 608.

(

A) THE “PROHIBITED USE OF LEFT LANE ON KING’S HIGHWAY” IS A STRICT LIABILITY OFFENCE [32] In reviewing the wording of the “prohibited use of left lane on King’s Highway” offence set out in s. 1(1) of O. Reg. 608,especially the statutory exceptions that are available under ss. 1(1) and 1(2), along with considering the out-of-court set fine of $85 andthe maximum fine of $500 that could be imposed under s. 214(1) of the H.T.A. upon conviction after trial, there is no expressed wordingor indication that the offence is anything but a strict liability offence.

In other words the offence is not a mens rea offence, since theoffence provision set out in s. 1(1) of O. Reg. 608 does not contain such terms or words as “knowingly”, “intended”, “reckless” or wilfulblindness”, nor is it expressly stated that the offence would be one of absolute liability: R. v. Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 [emphasis is mine below]: Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the secondcategory. They are not subject to the presumption of full mens rea.

An offence of this type would fall in the first category only if suchwords as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On theother hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liabilitywould be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act.

Theoverall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and theprecision of the language used will be primary considerations in determining whether the offence falls into the third category. [33] Furthermore, the general penalty

section for contravening a provision of the H.T.A. where a specific penalty for thecontravention is not otherwise provided for, is set out under s. 214(1) of the H.T.A.

As such, the range of fines for a conviction after atrial of the “prohibited use of left lane on King’s Highway” charge, would be from a minimum fine of $60 to a maximum fine of $500[emphasis is mine below]: General penalty 214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for thecontravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500. … [34] Accordingly, the “prohibited use of left lane on King’s Highway” offence is a strict liability offence.

And, because the offencein question is a strict liability offence, then it will be first decided whether the prosecution has proven the actus reus of the offencebeyond a reasonable doubt. If they have, then the burden will shift to the defence to prove that the defendant has established the defenceof due diligence on a balance of probabilities if the defendant wishes to be acquitted of the offence. (

B) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OFCOMMITTING THE OFFENCE? [35] For the defendant to be found guilty of committing the offence of “prohibited use of left lane on King’s Highway”, contrary to s.1(1) of O.

Reg. 608, the prosecution has to prove beyond a reasonable doubt that the defendant had been operating a commercial motorvehicle or any combination of a commercial motor vehicle and a towed vehicle that exceeds 6.5 meters in length, which is not a bus, anambulance or a fire apparatus, and that the defendant had been driving that particular commercial motor vehicle in the left lane of ahighway for which the left-lane driving prohibition under s. 1(1) of O.

Reg. 608 would apply to that particular stretch of the highway inquestion [emphasis is mine below]: 1(1) Subject to subsection (2), no person shall operate a commercial motor vehicle or any combination of a commercial motor vehicleand a towed vehicle that exceeds 6.5 metres in length, except a bus, an ambulance or a fire apparatus, in the left lane or, where the leftlane has been designated as a high occupancy vehicle lane, in the lane adjacent to the high occupancy vehicle lane of those portions of ahighway described in the Schedules. (2) Subsection (1) does not apply to a commercial motor vehicle engaged in maintenance or construction or where an emergency

requires the use of the lane by a commercial motor vehicle. [ 36 ] Furthermore, s. 1.2 of

Schedule 2 of O. Reg. 608, expressly prohibits commercial motor vehicles measuring over 6.5 meters in length from being driven in that part of the eastbound lanes of Highway 401 that lies between a point to the west that is situate at its intersection with the King’s Highway known as No. 8 in the City of Cambridge and a point to the east that is situate 779 meters measured westerly from its intersection with the center line of the roadway known as Mavis Road in the City of Mississauga, which covers that stretch of eastbound Highway 401 that is located in the area of the Trafalgar Road bridge in the Town of Milton [ emphasis is mine below ]:

SCHEDULE 2 HIGHWAY NO. 401 … 1.2 That part of the eastbound lanes of the King’s Highway known as No. 401 lying between a point situate at its intersection with the King’s Highway known as No. 8 in the City of Cambridge and a point situate 779 metres measured westerly from its intersection with the centre line of the roadway known as Mavis Road in the City of Mississauga . … [ 37 ] Therefore, the eastbound left lane of Highway 401 in the area by the Trafalgar Road bridge and near Highway 407 in the Town of Milton is prohibited for use by commercial motor vehicles over 6.5 meters in length.

(1) What is a King’s Highway in Ontario? [ 38 ] The highways in Ontario designated as a King's Highway [2] comprise a system of provincial highways threading throughout the province. In addition, the highways comprising the King's Highway in Ontario are paved primary trunk highways that are usually two or four-lane undivided roads, but there are some that have been upgraded to function as expressways and freeways.

Furthermore, the primary function of the King's Highway is to accommodate through traffic, although many of these highways serve as collector roads with local access. [ 39 ] However, Ontario’s H.T.A. does not specifically define what class of road or highway is a “King’s Highway”. Instead s. 1(1) of the H.T.A. only expressly states that the definition of a “King’s Highway” is a highway that includes the secondary highways and tertiary roads designated under the Public Transportation and Highway Improvement Act , R.S.O. 1990, c. P.50:

Definitions 1

(1) In this Act, … “King’s Highway” includes the secondary highways and tertiary roads designated under the Public Transportation and Highway Improvement Act ; (“route principale”) … [ 40 ] In addition, the authority of the Minister of Transportation for Ontario to designate a highway as the King’s Highway is contained in s. 7(1) of the Public Transportation and Highway Improvement Act , R.S.O. 1990, c. P.50. Moreover, s. 7(2) of that particular Act requires that the Minister of Transportation, who wishes to designate a highway as the King’s Highway, must do so by means of an order in council that has to be also registered in the proper land registry office [ emphasis is mine below ]:

Designation of the King’s Highway 7

(1) The Lieutenant Governor in Council may designate a highway or proposed highway as the King’s Highway . Registration of order in council

(2) The order in council designating a highway or proposed highway as the King’s Highway shall be registered in the proper land registry office and any such order in council heretofore registered shall be deemed to have been required to be so registered. Designation not regulation

(3) A designation under this

section is not a regulation within the meaning of

Part III (Regulations) of the Legislation Act, 2006 . … [ 41 ] Also, by virtue of s. 32(1) of the Public Transportation and Highway Improvement Act , the Minister of Transportation for Ontario is authorized to make regulations prohibiting or regulating the use of the King’s Highway by any class of vehicles [ emphasis is mine below ]: Use of highway by vehicles and animals 32(1) The Minister may make regulations prohibiting or regulating the use of the King’s Highway by any class of vehicles or animals and may impose penalties for contravention thereof, but no such regulation has any force or effect until approved by the Lieutenant Governor in Council after notice to any municipality affected thereby. …

(2) Is Highway 401 a King’s Highway? [ 42 ] First of all, s. 1.2 of

Schedule 2 of O. Reg. 608, the governing legislation in this prosecution, specifically refers to Highway 401 as the King’s Highway [ emphasis is mine below ] :

SCHEDULE 2 HIGHWAY NO. 401 … 1.2 That part of the eastbound lanes of the King’s Highway known as No. 401 lying between a point situate at its intersection with the King’s Highway known as No. 8 in the City of Cambridge and a point situate 779 metres measured westerly from its intersection with the centre line of the roadway known as Mavis Road in the City of Mississauga. [ 43 ] In addition, s. 4(2) of the General Regulation ( Off-Road Vehicles Act , R.S.O. 1990, c. O.4), R.R.O. 1990, Reg. 863 , provides for a

Schedule or list of highways in that particular Regulation, which by number or name would comprise part of the King’s Highway in Ontario [ emphasis is mine below ] :

4(1) The areas set out in

Schedule 1 are designated as areas within which subsection 2(2) of the Act does not apply.

(2) Where a highway is referred to in

Schedule 1 by a number or name, the reference is to that part of the King’s Highway that is known thereby . [ 44 ] Hence, under s. 1 of

Schedule 1 of the General Regulation ( Off-Road Vehicles Act , it is expressly and specifically stated that Highway 401 is known as part of the “King’s Highway”:

SCHEDULE 1 1. All of the King’s Highway known as Nos. 69, 400, 401, 402, 403, 404, 405, 409, 410, 412, 416, 417, 418 and 427. … [ 45 ] Accordingly, Highway 401 has been designated by the Minister of Transportation for Ontario to be part of the King’s Highway, as implied by the statutory references mentioned in s. 1.2 of

Schedule 2 of O. Reg. 608 and as mentioned in s. 1 of

Schedule 1 of the General Regulation ( Off-Road Vehicles Act , R.S.O. 1990, c. O.4), R.R.O. 1990, Reg. 863 .

(3) Highway 401 Is Not A Municipal Highway, But A Provincial Highway [ 46 ] And more importantly, since the Minister of Transportation for Ontario has designated Highway 401 as part of the King’s Highway then it is also a provincial highway and not a municipal highway, even though, as in the case at bar, Highway 401 runs through the boundaries of different towns, municipalities, and cities in the province of Ontario. Ergo, Highway 401 is not a municipal highway for the purposes of the H.T.A. or for any its regulations.

(4) Is The Prosecution Required To Prove Beyond A Reasonable Doubt That The Defendant Had Knowledge Of Or Had Been Aware Of The Left-Lane Prohibition For Commercial Motor Vehicles Over 6.5.

Meters In Length On Eastbound Highway 401 By Having To Prove That The Defendant Would Have Objectively Been In A Position To Have Observed The Left-Lane Prohibition Traffic Sign That Is Posted On The Trafalgar Road Bridge? [ 47 ] To reiterate, the defence contends that the prosecution has not proven that the defendant had known about or been aware of the left-lane driving prohibition for commercial motor vehicles over 6.5 meters in length for the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge in the Town of Milton, since the prosecution had failed to prove that the defendant’s dump truck had been driving west of the Trafalgar Road bridge on eastbound Highway 401 to establish that the defendant would have been able to objectively observe the left-lane prohibition traffic sign that is posted on that particular bridge which traverses over Highway 401.

However, the prosecution in response to that defence argument submits that they do not have to prove that the defendant would have or ought to have seen that specific left-lane prohibition traffic sign, since there is no legal requirement that the particular left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 has to even be posted, erected, or displayed on Highway 401 or in respect to or for any provincial highway. (

a) Is the left-lane prohibition traffic sign that is prescribed under sections 2 and 3 of O. Reg. 608 legally required to be posted, erected, or displayed on Highway 401? [ 48 ] To support their argument that the left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 is not legally required to be posted, erected, or displayed on or for a provincial highway, the prosecution relies on the interplay between s. 185 and s. 186 of the H.T.A. and the specific and expressed wording contained in those two statutory provisions.

(

i) s. 185 of the H.T.A. [ 49 ] Subsection 185(1) of the HTA allows the Minister of Transportation for Ontario to pass a regulation prohibiting or regulating the use of any highway or part thereof by pedestrians or animals or any class or classes of vehicles. However, s. 185 does not expressly refer to any legal requirement for the Ministry of Transportation to post, erect, or display a traffic sign in respect to regulating the use of any highway or part thereof by any class of vehicle [ emphasis is mine below ]: Regulating or prohibiting use of highway by pedestrians, etc. 185

(1) The Minister may make regulations prohibiting or regulating the use of any highway or part thereof by pedestrians or animals or any class or classes of vehicles . Prohibiting motor assisted bicycles, etc., on municipal highways

(2) The council of a municipality may by by-law prohibit pedestrians or the use of motor assisted bicycles, bicycles, wheelchairs or animals on any highway or portion of a highway under its jurisdiction. Removing pedestrians

(3) Where a pedestrian is on a highway in contravention of a regulation made or by-law passed under this section, a police officer may require the pedestrian to accompany him or her to the nearest intersecting highway on which pedestrians are not prohibited and the pedestrian shall comply with the request. (ii) s. 186 of the H.T.A. [ 50 ] In contrast to s. 185, s. 186 of the H.T.A. which authorizes municipalities to pass bylaws prohibiting the operation of a commercial motor vehicle that exceeds 6.5 meters in length, other than a bus or any combination of a commercial motor vehicle and a towed vehicle, in the left lane of any highway under its jurisdiction that has three or more lanes for traffic in each direction and on which the speed limit is 80 kilometers per hour or more.

However, the municipal bylaw that would be enacted to prohibit left-lane driving on a particular municipal highway by commercial motor vehicles over 6.5 meters in length would also not apply to such vehicles, if they are being used for the maintenance or construction of that particular municipal highway at the place and time in question or that they are using the left lane of that particular municipal highway in respect to an emergency situation.

But more importantly when compared to the wording contained in s. 185, s. 186(3) does expressly state that the municipality, who passes a by-law under s. 186(1) prohibiting commercial motor vehicles over 6.5 meters in length from using or driving in the left lane of a particular municipal highway, is legally required to erect a left-lane prohibition traffic sign over the left lane of that municipal highway so that the sign can be seen by the drivers of commercial motor vehicles over 6.5 meters in length which enter the municipal highway from connecting or intersecting highways [ emphasis is mine below ]: Prohibiting commercial vehicles in left lane 186

(1) The council of a municipality may by by-law prohibit the operation of , (

a) a commercial motor vehicle other than a bus ; or (

b) any combination of a commercial motor vehicle and a towed vehicle, that exceeds 6.5 metres in length, in the left lane of any highway under its jurisdiction that has three or more lanes for traffic in each direction and on which the speed limit is 80 kilometres per

hour or more . When prohibition does not apply

(2) A by-law passed under subsection (1) does not apply to the use of the left lane of a highway by a commercial motor vehicle, (

a) that is being used for the maintenance or construction of the highway; or (

b) in an emergency. Signs

(3) Where the council of a municipality passes a by-law under subsection (1), the municipality shall erect signs over the left lane of the highway governed by the by-law so located that they can be seen by the drivers of commercial motor vehicles entering the highway from connecting or intersecting highways . (

b) the statutory provisions of O. Reg. 608 [ 51 ] As well, none of the statutory provisions in O. Reg. 608 explicitly or implicitly require that the left-lane prohibition traffic sign that is prescribed in ss. 2 and 3 of O. Reg. 608 has to be legally posted, erected, or displayed either on or for a King’s Highway or a provincial highway in order to inform drivers of commercial motor vehicles over 6.5 meters about the prohibited use of the left lane for that particular highway for such commercial motor vehicles. However, ss. 2 and 3 of O.

Reg. do make explicit references to the legal requirements of the left-lane prohibition Traffic sign, but only in the sense that when that particular traffic sign is posted, erected, or displayed then the sign has to comply with the form, dimensions, and the placement of the sign as prescribed and illustrated in the Figures set out in ss. 2 or 3 of O. Reg. 608: 2

(1) A sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions prescribed and illustrated in the following Figure: …

(1.1) Despite subsection (1), in an area designated under the French Language Services Act , a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions prescribed and illustrated in the following Figure: …

(2) The sign referred to in subsection (1) or (1.1) shall be erected directly above the lane on those portions of a highway described in the Schedules. 3

(1) Where the conditions make it impracticable to place a sign in accordance with the requirements of

section 2, a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions illustrated in the following Figure: …

(1.1) Despite subsection (1), in an area designated under the French Language Services Act , where the conditions make it impracticable to place a sign in accordance with the requirements of

section 2, a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions illustrated in the following Figure:

…

(2) The sign referred to in subsection (1) shall be erected not less than 1.5 metres or more than 2.5 metres above the level of a highway described in the Schedules.

(3) The sign referred to in subsection (1.1) shall be erected not less than 1.5 metres or more than 2.5 metres above the level of a highway described in the Schedules and shall be erected in combination with the sign required by subsection (1), below it, to the right of it or up to 100 metres beyond it. (

c) Not All Prohibitions In Respect To Operating A Motor Vehicle On A Highway Legally Require A Sign To Be Posted, Erected, Or Displayed [ 52 ] It should also be noted that even for municipal traffic and parking offences that are enacted under municipal bylaws, not all of these municipal traffic and parking offences legally require traffic or parking signs to be posted, erected, or displayed for all locations within the municipality for that traffic or parking offence to be valid. [ 53 ] For example, the prohibition against a motor vehicle being parked for a duration of more than 3 hours on any public street in the City of Toronto does not require the posting or display of such a sign on every street or road in Toronto to inform the public of such a prohibition.

In other words, there is no legal requirement that a parking sign has to be erected on every street or road in the municipality in respect to notifying the public about such prohibition against a motor vehicle being parked for more than a three-hour duration on any public street.

Rather, the public is presumed to know of that particular parking law based on the information signs that have been placed on major highways entering the City of Toronto, which informs the public about the maximum 3-hour parking rule that applies to every street or road in the City of Toronto. [ 54 ] And, for another example where there no legal requirement for signage to be mandatorily posted, erected, or displayed on municipal highways to inform the driving public of a particular prohibition can be found in the maximum speed that a motor vehicle can legally travel on a municipal highway.

In that case, s. 128(1)(

a) of the H.T.A. provides that in the absence of any specific traffic sign setting out what the maximum speed is for a highway or for a particular stretch of a municipal highway then the maximum speed for that highway or part of the highway is presumed to be 50 k.p.h.: Rate of speed 128

(1) No person shall drive a motor vehicle at a rate of speed greater than , (a) 50 kilometres per hour on a highway within a local municipality or within a built-up area ; (

b) despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by regulation; (c) 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the Public Transportation and Highway Improvement Act , whether or not the highway is within a local municipality or built-up area; (

d) the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7); (

e) the maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or

(

f) the maximum rate of speed posted on a highway or portion of a highway pursuant to

section 128.0.1. [55] In addition, there are other traffic offences which do not legally require traffic signs to be posted, erected, or displayed, but amotorist would still be presumed to know about the prohibition even without the existence of a traffic sign.

This presumed knowledge ofthe traffic laws of a province by a motorist is founded on the licensing principle, which posits a notion that because the activity of drivinga motor vehicle is a regulated activity in which participants are required to pass knowledge and proficiency exams before they can belicensed to drive on a public highway then the regulated participant is expected to know the conditions and legal requirements of suchregulated activity.

For example, a licensed motorist is presumed to know that they cannot pass another vehicle using the shoulder of ahighway, yet signs informing motorists of such legal prohibition are not legally required to be placed at regular intervals on thehighway.

Nor can a motorist leave their motor vehicle parked in a live lane on a highway, yet signs informing motorists of such legalprohibition are also not required to be placed at regular intervals on the highway. [56] Ergo, there is no legal requirement that a traffic sign must always be posted, erected, or displayed for every prohibition set outunder the H.T.A. or under any other statute regulating the operation of motor vehicles on provincial highways in Ontario, unless it hasbeen expressly stated by law. (

d) The Left-Lane Prohibition Traffic Sign Prescribed Under Sections 2 And 3 Of O. Reg. 608 Is Only Legally Required To BePosted, Erected, Or Displayed In Respect To Municipal Roads [57] Therefore, based on ss. 185 and 186 of the H.T.A. the left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O.Reg. 608 is not legally required to be posted, erected, or displayed on Highway 401 or on any provincial highway and is only legallyrequired to be posted, erected, or displayed on a municipal highway.

(5) Is The Prosecution Required To Prove Beyond A Reasonable Doubt That The Defendant Had Known About Or BeenAware Of The Left-Lane Prohibition By Proving That The Defendant Would Have Objectively Been In A Position To HaveObserved The Left-Lane Prohibition Traffic Sign Posted on The Trafalgar Road Bridge? [58] For the question of whether the prosecution is required to legally prove beyond a reasonable doubt that the defendant had knownabout or been aware of the left-lane driving prohibition by proving that the defendant would have objectively been in a position to haveobserved the left-lane prohibition traffic sign posted on the Trafalgar Road bridge, the prosecution argues that since the left-laneprohibition traffic sign is not legally required to be posted, erected, or displayed for provincial highway either under the H.T.A. or underO.

Reg. 608, then the prosecution is also not required to prove beyond a reasonable doubt that the defendant would have known about orbeen aware of the prohibition against commercial motor vehicles over 6.5 meters using or driving in the eastbound left lane Highway 401in the area around the Trafalgar Road bridge by showing that the defendant would have been objectively in a position to see the left-laneprohibition traffic sign posted on the Trafalgar Road bridge, since ignorance of the law is not a defence and because the defendant hadnot been charged specifically with committing the offence of disobeying a particular traffic sign, contrary to s. 182(2) of the H.T.A. (

a) the defendant has not been charged with “disobeying a sign” contrary to s. 182(2) of the H.T.A., which would have requiredthe prosecution to prove that the defendant would have objectively been in a position to have observed the traffic sign [59] Also in support of their argument that traffic signs for prohibiting the use of the left lane on or for Highway 401 are not legallyrequired, the prosecution submits that the defendant has not been charged with committing the specific offence of disobeying a trafficsign, where the prosecution in that case would be required to prove the existence of a valid traffic sign for the motorist to objectivelyobserve and to disobey. [60] And similar to the “prohibited use of left lane on a King’s Highway” offence being a strict liability offence, it was alsodetermined by the Nova Scotia Court of Appeal in R. v.

Higgins (1981), (NS CA), 46 N.S.R. (2d) 80, 60 C.C.C. (2d)246 (N.S.C.A.), at paras. 20 to 21, that offences for disobeying a traffic sign are also strict liability offences [emphasis is mine below]:

Section 74(2) of the Act was first enacted by Stats. N.S. 1932, c. 6, s. 67(2). In 1932 only the two traditional categories of offences,according to the essential mental element required for conviction existed, i.e., mens rea offences and absolute liability offences. I am notconvinced that in 1932 the legislature of this Province intended the offence of disobeying traffic signs and signals to be one of absoluteliability; rather, it appears to me that it was intended that proof of the doing of the prohibited act would create a prima facie case,which, if not rebutted would carry conviction.

To the best of my recollection this is the approach the courts have taken to this particularoffence over the years. I repeat my opinion that s. 74(2) of the Act creates a regulatory offence and therefore one, prima facie, of strict liability. I haveconsidered the various indicators suggested in Sault Ste. Marie in an effort to ascertain whether the intention of the legislature was tomake this offence one of absolute liability. I am not persuaded that it was.

I therefore would leave it in the second offence category ofstrict responsibility. [61] Moreover, this notion that a sign is required to be proven as part of the actus reus of the offence for the offence of disobeying atraffic sign has been recognized by Bourque J. in R. v. Niu, [2015] O.J. No. 3757 (O.C.J.). In R. v. Niu, Bourque J. had to consider theappeal of a traffic offence in regards to disobeying a traffic sign under s. 182(2) of the H.T.A.

In that particular case, Bourque J. had heldat para. 16 that whether or not the sign would reasonably be visible to a user of the road would go to the actus reus of the offence, whichwould be the disobedience of that sign. In addition, Bourque J. noted that it is not enough for an accused person to simply say that theydid not see the sign, since mere inadvertence by the accused person does not afford them a defence.

However, Bourque J. went on toexplain that in order to make out the defence that the sign was not observed because of its indiscernibility, the accused person must gofurther and convince the trier of fact that no driver would have likely seen that sign [emphasis is mine below]: I think in this case whether or not the sign would reasonably be visible to a user of the road actually goes to the actus reus of the offence,that is the disobedience of a sign.

It is clear from the facts of this matter that the evidence proffered by the defendant on this appealcould lead any reasonable trier of fact to the conclusion that such signage was not visible to any person proceeding to make a left turnfrom the centre lane, with no sign facing the driver "at the intersection" where the left turn (at that time of day) was prohibited. It is notenough for a defendant to simply say that he did not see the sign. Mere inadvertence does not afford a defence.

The defendant must gofurther and convince the trier of fact that no driver was likely to have seen the sign. [62] Furthermore, in R. v. Strong, (NS SC), [1988] N.S.J. No. 456, 13 M.V.R. (2d) 106 (N.S. Co.

Ct.), which wasalso a case about the visibility and placement of speeding signs at regular intervals along a highway, MacDonnell J. had held that it wasnever the intention of the Nova Scotia Legislature that traffic signs be erected so as to be always visible to a motorist traversing a sectionof highway covered by the speed approved for that area, considering that if it had been such a legislative intention then it would meancluttering up villages and towns with speed zone signs erected at each street intersection, as well as erected on each street at intervals sothat they would always be visible to operators of motor vehicles traversing all streets or highways.

In addition, MacDonnell J. alsoreasoned that there is no provision in the governing section, either implied or otherwise, which would require traffic signs be erected sothat they would always be visible to a motorist traversing a

section of highway covered by the speed approved for that area [emphasis ismine below]: With all due deference, the learned Trial Judge has misinterpreted the provisions of Section 94(1). The

section clearly provides that theMinister or Traffic Authority may fix maximum rates of speed for motor vehicles traversing any part or portion of a highway. The saidAuthority may then erect and maintain signs notifying the travelling public of such rate of speed. Implied or otherwise, there is noprovision in the said

section that the signs be erected so as to be always visible to a motorist traversing a

section of highway covered bythe speed approved for that area. Common sense would indicate that it was never the intention of the Legislature to place the

interpretation found by the learned TrialJudge on the said section. If this was the intention of the Legislature, it would mean cluttering up our villages and towns with speed zonesigns erected at each street intersection, as well as erected on each street at intervals so that they would always be visible to operators ofmotor vehicles traversing said streets, or highways. [63] However, for the situation in the case at bar, the actus reus for the offence of “prohibited use of left lane on King’s Highway”does not involve the defendant being charged for disobeying an actual traffic sign, since s. 1(1) of O.

Reg. 608 does not expressly refer tothe disobedience of a particular traffic sign. Therefore, since there is no legal or statutory requirement that the left-lane prohibitiontraffic sign, which is prescribed under ss. 2 and 3 of O. Reg. 608, has to be posted, erected, or displayed on a provincial highway or alongany portion of the left lane of eastbound Highway 401, then there is equally no legal requirement on the prosecution to prove, as part of

the actus reus of the offence, that the defendant would have objectively been in a position to have observed the left-lane prohibitiontraffic sign posted on the Trafalgar Road bridge, especially when that particular sign does not even have to be legally posted or displayedin respect to Highway 401. (

b) driving commercial motor vehicles is a regulated activity which requires licensing in order for someone to participate inthat regulated activity [64] In addition, the defendant, as a driver of a commercial motor vehicle, is participating in the regulated activity of driving a motorvehicle in general, as well as the specific activity of driving a commercial motor vehicle, which is a specifically regulated activity andwhich requires a specialized driver’s licence. [65] In R. v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154, [1995] S.C.J.

No. 94 (QL),102 C.C.C. (3d) 144 (S.C.C.), atparas. 39 to 40, La Forest J. had explained the “licensing principle” that was described by Cory J. in R. v. Wholesale Travel Group Inc., (SCC), [1991] S.C.J.

No. 79, which postulates that regulated actors entering a licensed field should be presumed to knowof, and to have accepted, the terms and conditions relevant to the regulated area, and should therefore be held liable for breaching theseterms and conditions, as a rationale for subjecting the fault requirement of regulatory offences to a lower standard of Charter scrutinythan that of "true crimes" [emphasis is mine below]: The appellant here has not entered the commercial fishery with his eyes closed.

He must be presumed to be aware of the terms andconditions of the vessel's fishing licence, which include the submission of hail reports and fishing logs. (As noted by Taggart J.A. in the court below, there is a clause in the standard form commercial fishing licence, above the place for thesignature of the vessel owner/operator, that provides that the undersigned understands that he or she is obliged, as a condition of thelicence "to furnish accurate catch records in such manner and to such persons as the Fisheries Act and regulations may stipulate", andthat otherwise the fishing licence may be cancelled or suspended.) The appellant must be presumed to be aware of the GroundfishManagement Plan, which accompanies the fishing licence, and provides that the amount of fish he is allowed to catch is governed byquotas.

He knows these quotas are subject to variation, publicized by means of Fisheries Public Notices, and he also knows that he isprohibited from taking more fish than is permitted under the quota. When he does so, can it be said that it will be a matter of surprise tohim that the Crown seeks to rely on his own hail report and fishing logs in order to prosecute him? Did he not realize in submitting thisreport and these logs that this might be one of their uses? In making this point, I rely on a form of the "licensing argument" discussed by Cory J. in Wholesale Travel, supra.

There, Cory J.identified this argument as one rationale for subjecting the fault requirement of regulatory offences to a lower standard of Charterscrutiny than that of "true crimes". The licensing argument postulates that regulated actors entering a licensed field should be presumedto know of, and to have accepted, the terms and conditions relevant to the regulated area, and should therefore be held liable forbreaching these terms and conditions.

At page 229 of his judgment in Wholesale Travel, Cory J. described the licensing argument asfollows: The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves ina responsible relationship to the public generally and must accept the consequences of that responsibility.

Therefore, it is said, those whoengage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemedto have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among these impliedterms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care. The licensing justification is based not only on the idea of a conscious choice being made to enter a regulated field but also on theconcept of control.

The concept is that those persons who enter a regulated field are in the best position to control the harm which mayresult, and that they should therefore be held responsible for it. Later, at pp. 239-40, he continued on the same theme: The regulated actor is allowed to engage in activity which potentially may cause harm to the public. That permission is granted on theunderstanding that the actor accept, as a condition of entering the regulated field, the responsibility to exercise reasonable care to ensurethat the proscribed harm does not come about.

As a result of choosing to enter a field of activity known to be regulated, the regulatedactor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition to being

allowed to engage in the regulated activity . [ 66 ] In addition, heavy and lengthy commercial motor vehicles are also governed by the slow moving motor vehicles provision under s. 147(1) of the H.T.A. which expressly states that any vehicle travelling upon a roadway at less than the normal speed of traffic at that time and place shall, where practicable, be driven in the right-hand lane then available for traffic, except while overtaking and passing another vehicle proceeding in the same direction [ emphasis is mine below ]: Slow vehicles to travel on right side 147

(1) Any vehicle travelling upon a roadway at less than the normal speed of traffic at that time and place shall, where practicable, be driven in the right-hand lane then available for traffic or as close as practicable to the right hand curb or edge of the roadway. Exception (2) Subsection (1) does not apply to a driver of a, (

a) vehicle while overtaking and passing another vehicle proceeding in the same direction; (

b) vehicle while preparing for a left turn at an intersection or into a private road or driveway; (

c) road service vehicle; or (

d) bicycle in a lane designated under subsection 153 (2) for travel in the opposite direction of traffic. [ 67 ] Ergo, for public safety purposes, the statutory requirement that slower-moving vehicles drive or use the right lanes of a multi- lane highway in order to keep the left lane open would accommodate faster moving motor vehicles, which in turn alleviates the potential harm that could be caused by impatient motorists, whose smaller and shorter vehicles would be able to travel faster than larger and heavier commercial motor vehicles that measure more than 6.5 meters in length.

Hence, the legal requirement for slow moving vehicles to drive in the right lanes of a highway would also prevent impatient drivers from making dangerous and unsafe maneuvers or lane changes to get around or to pass the larger and slower-moving commercial motor vehicles that use or occupy the left lanes of a highway. [ 68 ] Accordingly, since the defendant has chosen to voluntarily enter the regulated activity of driving commercial motor vehicles and who had been issued an Ontario Class AZ driver’s licence with an Air Brake endorsement (see Ex. 1) to drive commercial motor vehicles on Ontario highways, then he would be presumed to know of, and to have accepted, the terms and conditions relevant to that regulated sphere of driving commercial motor vehicles on public highways.

In this case, the defendant, who

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