R. v. Wilson, 2013 ONCJ 313

COURT FILE No.: Halton 3786339A DATE: 2013·06·11 Citation: R. v. Wilson , 2013 ONCJ 313 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: Her Majesty the Queen Respondent — AND — Tyler Wilson Apellent Before Justice R.J.

LeDressay Heard on May 3, 2013 Reasons for Judgment released on June 11, 2013 Ian Lagden ......................................................................................................... for the prosecution Richard Litkowski ............................................................................ for the defendant Tyler Wilson LeDressay J.: [ 1 ] On June 15, 2012 the appellant, Tyler Wilson was found guilty of failing to properly wear his seatbelt contrary to s.106(2) of the Highway Traffic Act .

The appellant was fined $125.00. [ 2 ] At the trial, Officer Scerri testified that on September 24, 2011 he was conducting spot checks at the corner of Barber Drive and Argyle Road in Georgetown. The officer testified that he was standing about one metre away from the curb lane beside a stop sign on the northeast corner of that intersection. He indicated that he observed the appellant in a blue Volkswagen travelling west along Argyle Road. The appellant had a female passenger with him. The police officer saw the appellant’s vehicle stop at the stop sign in front of the officer.

The police officer saw that the appellant’s seatbelt was hanging down by his left shoulder. The officer directed the appellant to pull over at which time the officer issued a Provincial Offences Notice to the appellant for failing to wear a seatbelt contrary to s.106(2) of the Highway Traffic Act . [ 3 ] The appellant testified at trial that he was a student at the University of Guelph and that he worked part-time while he was not going to school. On September 24, 2011 the appellant had left his home and stopped at Tim Horton’s to get a coffee and a drink for his passenger.

He testified that he put his coffee in the coffee holder in the backseat. He testified that his seatbelt was engaged at this time. As the appellant was driving along Argyle Road he noticed that his coffee was starting to spill in the back over a laptop computer. He testified that he slowed down at the stop sign, disengaged his seatbelt and up-righted the coffee cup. [ 4 ] At this point the Justice of the Peace interrupted the proceedings and indicated the following: The Court: Okay. I know that you may have more information to give but I have to tell you right now that by Tyler’s testimony, he is guilty.

Okay?” Ms. Wilson: Well…. The Court: Just based on what has been said right now the strict and proper application of the law is that he is guilty. Ms. Wilson: Okay. The Court: And I this now because I don’t know where else you’re going but at this point as to innocence or guilt, the switch is turned. Okay? Because he was on a travelled portion of the road, in care, custody, control of a vehicle and he had his seatbelt off. He is in violation of the law and as far as the law is concerned that’s the end of it. Okay? There’s no mitigating circumstances as to the law.

There may be mitigating circumstances as to why the Court might lower the fine but as to the application of the law, the minute he said he was on the road and he took that seatbelt off to do something, he’s cooked. Ms. Wilson: Well….

The Court: Even if something falls on the floor and gets under your feet and you – you’re at a stop sign or a stop light and you take thatseatbelt off to pick it up, you’re breaking the law. It’s as strict as that. [5] After this interruption the appellant went on to testify that there was no other traffic in the vicinity and that his intentwas to re-engage the seatbelt as soon as he had fixed the coffee cup that was spilling. He then saw the officer directing him to pull overwhich he did.

The appellant was not challenged at trial regarding his evidence in this regard. [6] The Justice of the Peace held that the offence set out in s.106(2) of the Highway Traffic Act was one of absoluteliability and found the appellant guilty of the offence. [7] There are two issues in this case. [8] First, the appellant submits that a reasonable apprehension of bias was created when the Justice of the Peacecommented, before the evidence was complete and before submissions were made, that the appellant was guilty. [9] The second issue in the appeal is whether s.106(2) of the Highway Traffic Act is a strict liability or absolute liabilityoffence within the definition of those terms and the analytical framework for differentiating them set out in R. v.

Sault Ste. Marie (1978) (SCC), 40 C.C.C. (2d) 353 S.C.C. Reasonable Apprehension of Bias: [10] In the recent Ontario Court of Appeal decision of R. v. Huang [2013] O.N.C.A. 240, the Ontario Court of Appealreiterated the very high test for apprehension of bias. That test is whether an informed person “viewing the matter realistically andpractically and having thought the matter through” would think it was more likely than not that the trial judge consciously orunconsciously would not decide the appellant’s trial fairly.

The Court of Appeal in Huang made reference to the Supreme Court ofCanada case of Committee for Justice and Liberty v. Canada (National Energy Board) (SCC), [1978] 1 S.C.R. 369 whenciting this legal proposition. [11] In this case the trial judge’s interruption of the proceedings was clearly predicated upon the trial judge’s belief thats.106(2) of the Highway Traffic Act was an absolute liability offence. This belief was supported in some case law, i.e. R. v. Stewart[2007] O.J. No. 3000. It would have been preferable for the trial judge to hear all the evidence and the appellant’s submissions based onR. v.

Kanda 2008 ONCA 22 , [2008] O.J. No. 80 that s.106(2) of the Highway Traffic Act was a strict liability offence beforearticulating his

interpretation of the law. However, the trial judge did hear the rest of the evidence and he did consider the appellant’ssubmission regarding the Kanda decision and it’s applicability to s.106(2) of the Highway Traffic Act, before ultimately deciding thecase. [12] In view of the uncertainty of law regarding the issue of strict liability versus absolute liability with respect to s.106(2) ofthe Highway Traffic Act and how the trial judge followed through after his interruption of the proceedings, it cannot be concluded thatthe trial judge would not and did not decide the appellant’s trial fairly.

An informed person viewing the matter realistically andpractically and having thought the matter through would not think it was more likely than not that the trial judge consciously orunconsciously would not decide the appellant’s trial fairly. This ground of appeal is therefore dismissed. Absolute v. Strict Liability: [13] In R. v. Kanda the Ontario Court of Appeal set out the criteria to be used by a trial court in deciding whether a statutecreated a mens rea offence, a strict liability offence, or an absolute liability offence.

The sole issue in the Kanda case was whethers.106(6) (now s.106(4)) of the Highway Traffic Act which is the seatbelt provision of the Highway Traffic Act which stipulates that apassenger under 16 years of age must wear a properly adjusted seatbelt, was a strict liability or an absolute liability offence. [14] The Ontario Court of Appeal concluded that s.106(6) (now s.106(4)) of the Highway Traffic Act was a strict liabilityoffence.

The appellant argues, although the Kanda case deals with a different seatbelt provision, that the analysis used by the OntarioCourt of Appeal in the Kanda case applies with equal force as s.106(2) of the Highway Traffic Act. [15] In paragraphs 17 through 19 the Ontario Court of Appeal in the Kanda case stated the following: [17] This appeal is governed almost entirely by the well-known decision of the Supreme Court of Canada in Sault Ste. Marie.

Inthat case, Dickson J. divided “regulatory” or “public welfare” offences into three categories – mens rea offences, strict liability offencesand absolute liability offences. He defined them, respectively, in this fashion at pp. 373-74: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be provedby the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event.

These offences may properly be called offences of strict liability. … 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [18] Justice Dickson continued with a discussion of how to differentiate among the three categories of regulatory offences. Hestated at p. 374:

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. Theover-all 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. [19] I make two observations about this passage.

First, Dickson J. articulated a presumption that public welfare offences are strictliability offences; accordingly, this presumption must be the starting point in an analysis of a regulatory provision such as s. 106(6) of theHTA. Second, the classification of a particular provision follows from an assessment of the four factors set out in the emphasized portionof the passage – the overall regulatory pattern, the subject matter, the penalty, and the precision of the language used.

It is to thisassessment that I now turn. [16] Therefore it is clear in deciding whether s.106(2) of the Highway Traffic Act is a strict liability or an absolute liabilityoffence that the starting point in the analysis for a regulatory provision such as s.106(2) of the Highway Traffic Act is the presumptionthat public welfare offences are strict liability offences. [17] In the Ontario Court of Appeal case of R. v. Nickel City Transport (Sudbury) Ltd. (ON CA), [1993]O.J. No. 1277, the Ontario Court of Appeal said the following at paragraph 14: [14] In R v.

Kurtzman (1991), (ON CA), 4 O.R. (3d) 417, although this court held that the offence of failing to stop ata red light created an offence of absolute liability, it acknowledged the operation of the presumption against absolute liability with respectto offences under the Highway Traffic Act. At p.43 of the decision, the court noted: It is clear from the Supreme Court decisions in Sault Ste.

Marie and Chapin , supra , that public welfare offences such as those createdby the Highway Traffic Act are prime facie offences of strict liability and that absolute liability offences will be exceptional and will onlybe recognized in the face of clear legislative direction . (Emphasis added.) [18] Second, in Kanda at paragraph 19, the Ontario Court of Appeal noted that the classification of a particular provisionfollows from the assessment of the four factors set out by the Supreme Court of Canada in the case of the Sault Ste. Marie.

Those fourfactors are the overall regulatory pattern adopted by the Legislature; the subject matter of the legislation, the importance of the penaltyand the precision of the language used in the statute. [19] The Ontario Court of Appeal’s analysis in Kanda of s.106(6) (now s.106(4)) of the Highway Traffic Act with respect tothe four factors enunciated by the Supreme Court of Canada in the Sault Ste.

Marie case parallel, with one minor exception, the analysiswhich must be undertaken with respect to s.106(2) of the Highway Traffic Act to determine whether it is an absolute liability offence or astrict liability offence. [20] In considering the first factor, which is the overall regulatory pattern adopted by the Legislature, the Ontario Court ofAppeal in Kanda said this at paragraphs 20 through 26: [20] Section 106(6) is found in

Part VI of the HTA.

Part VI, comprising ss. 61-107, bears the heading "Equipment" and deals with thevarious duties imposed upon drivers in the operation of motor vehicles. [21] The HTA , including

Part VI of the Act, creates many offences. Importantly, throughout the Act as a whole and specifically withinPart VI, there are clear illustrations of all three categories of regulatory offence. [22] An example of a mens rea offence in

Part VI of the HTA is: 104(2.2) No parent or guardian of a person under sixteen years of age shall authorize or knowingly permit that person to ride on oroperate a bicycle on a highway unless the person is wearing a bicycle helmet as required by subsection (2.1). [Emphasis added.] [23] An example of-a strict liability offence in

Part VI of the HTA is: 75(4) A person having the control or charge of a motor vehicle shall not sound any bell, horn or other signalling device so as to make anunreasonable noise, and a driver of any motor vehicle shall not permit any unreasonable amount of smoke to escape from the motorvehicle, nor shall the driver at any time cause the motor vehicle to make any unnecessary noise , but this subsection does not apply to amotor vehicle of a municipal fire department while proceeding to a fire or answering a fire alarm call. [emphasis added.] [24] An example of an absolute liability offence in

Part VI of the HTA is: 84.1(1) Where a wheel becomes detached from a commercial motor vehicle, or from a vehicle being drawn by a commercial motorvehicle, while the commercial motor vehicle is on a highway, the operator of the commercial motor vehicle and the owner of the vehiclefrom which the wheel became detached are guilty of an offence. ...

(5) It is not a defence to a charge under subsection (1) that the person exercised due diligence to avoid or prevent the detaching of thewheel. [emphasis added.] [25] I draw two conclusions about the offences established by the HTA, including

Part VI - Equipment. First, the language necessary toclearly demonstrate an intention to create mens rea, strict liability and absolute liability offences is well-known to the legislature and hasbeen employed to create all three types of offences in the HTA. Second, as acknowledged by counsel for the Attorney General in oral

argument, the HTA has many strict liability offences: see, e.g., R. v. Nickel City Transport (Sudbury) Limited (1993), (ON CA), 82 C.C.C. (3d) 541 , 104 D.L.R. (4th) 340 (Ont. C.A.) (dealing with the offence of operating a vehicle where the axle weightexceeds the maximum allowable level). [26] I conclude that, for the purposes of determining whether s. 106(6) creates a strict liability or absolute liability offence, the overallregulatory pattern is neutral. [21] Section 106(2) of the Highway Traffic Act is also in

part VI of the Highway Traffic Act so the comments set out by theOntario Court of Appeal in paragraphs 20 through 26 would apply with equal force to s.106(2). Therefore the Ontario Court of Appeal’sconclusion that the overall regulatory pattern of the legislation is neutral also applies to s.106(2). [22] In considering the second factor, which is the subject matter of the legislation, the Ontario Court of Appeal in Kandanoted the following at paragraphs 27 through 32: [27]

Section 106 of the HTA requires most people riding in motor vehicles to wear seat belts. The "important statutory purpose" of theseat belt law is "minimizing driver and passenger injuries resulting from car collisions": see York (Regional Municipality) v. Tassone,2007 ONCA 215 at para. 8, 73 W.C.B. (2d) 350. Subsection 106(6) of the HTA advances this purpose by making drivers responsible forensuring that all passengers under 16 years of age use seat belts.

The provision is clearly intended to ensure the safety of vulnerableyouthful passengers who cannot be relied upon to take responsibility for their own safety. [28] The above description of s. 106(6) of the HTA might support its classification as an absolute liability offence. However, there arecountervailing points relating to the subject matter of the provision. [29] First, the link between absolute liability and increased compliance with the law is tenuous. As explained by Dickson J. in Sault Ste.Marie, supra, at 363: There is no evidence that a higher standard of care results from absolute liability.

If a person is already taking every reasonableprecautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defencein the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? [30] Second, the argument that the important public purposes of a law (i.e., child safety) are promoted by easy and efficient enforcementthat supposedly flows from absolute liability offences has little bearing on the question of statutory

interpretation. As expressed byDickson J. in R. v. Chapin (1979), (SCC), 45 C.C.C. (2d) 333 at 342, 95 D.L.R. (3d) 13 (S.C.C.): [T]he problems that may be encountered in the administration of a statute or regulation are a very unsure guide to its properinterpretation. Difficulty of enforcement is hardly enough to dislodge the offence from the category of strict liability.... [31] Moreover, to regard strict liability as a serious diminution of enforcement capacity is a misconception. Strict liability is what itsname implies -- a serious commitment to enforcement of the law.

In most cases, if a person commits the act proscribed by the law aconviction will follow because establishing the defence of due diligence or reasonable care will not be easy. [32] In my view, the subject matter of s. 106(6) of the HTA supports a classification of the offence as strict liability.

This classificationstrikes an appropriate balance between encouraging drivers to be vigilant about the safety of child passengers in their vehicles and notpunishing those who exercise due diligence with respect to children's seat belts. [23] These comments by the Ontario Court of Appeal in Kanda must apply with at least equal force to s.106(2) of theHighway Traffic Act. [24] First the Ontario Court of Appeal specifically addresses all of s.106 of the Highway Traffic Act in defining the“importance statutory purpose” of the seatbelt law. [25] Second, it is arguable that “child safety” is an even more important statutory purpose than the safety of adult driversconsidering the “vulnerability of youthful passengers who cannot be relied upon to take responsibility for their own safety”.

Therefore,the countervailing points noted by the Ontario Court of Appeal in Kanda at paragraphs 29 through 31 must apply with equal force tos.106(2) of the Highway Traffic Act. [26] Hence, the subject matter of s.106(2) of the Highway Traffic Act supports a classification of the offence as strict liability.

This classification strikes an appropriate balance between encouraging drivers to be vigilant about their safety while operating theirvehicles and not punishing those who exercise due diligence with respect to wearing their seatbelts. [27] When considering the third factor, which is the importance of the penalty, the Ontario Court of Appeal in Kanda said thefollowing in paragraphs 33 through 35: [33] The only penalty available for failing to comply with s. 106(6) of the HTA is a relatively modest fine.

Since the HTA does notspecify a penalty for violations of s. 106(6), the general penalty provision in s. 214(1) applies, namely, "a fine of not less than $60 andnot more than $500". In addition, a driver convicted under s. 106(6) receives two demerit points which is well short of the nine demeritpoints required for the suspension of a driver's licence. Finally, violating s. 106(6) cannot result in imprisonment. [34] Moreover, I note that in R. v. Kurtzman (1991), (ON CA), 66 C.C.C. (3d) 161 (Ont.

C.A.) at 172, this courtobserved that "there is today little, if any, stigma attached to a violation of Highway Traffic Act provisions governing compliance withtraffic signal indicators." By parity of reasoning, the same point could be made about the stigma attached to a violation of s. 106(6) ofthe HTA. [35] Accordingly, the penalties relating to s. 106(6) of the HTA are consistent with a classification of absolute liability.

[28] These comments also clearly apply with equal force to s.106(2) of the Highway Traffic Act . [29] Finally, in considering the fourth factor which is the precision of the language used in the statute, the Ontario Court ofAppeal in the Kanda case said the following at paragraphs 36 through 41: [36] As discussed previously, the HTA explicitly creates offences in all three categories of regulatory offences.

Subsection 106(6) doesnot contain the triggering language that would make classification virtually automatic. [37] The appellant and the intervener submit that the triggering words of s. 106(6) -- "No person shall" -- evince a clear intention tocreate an absolute liability offence. For several reasons, I disagree. [38] First, the case law does not support the proposition that the language "no person shall" points to absolute liability.

The provision ofthe Migratory Birds Regulations , SOR/71-376, in issue in Chapin employed this language and was determined by the Supreme Court ofCanada to create a strict liability offence.

Likewise, in Nickel City Transport, supra, at 556, a case involving an HTA offence, this courtstated that "the language of 'no operator shall ', does not import absolute liability" [emphasis in original]. [39] It is true that some offences employing the "no person shall" or "every driver shall" formulation have been interpreted as absoluteliability offences: see Kurtzman , supra (failing to stop at a red light) and London (City) v. Polewsky (2005), (ONCA), 202 C.C.C. (3d) 257 (Ont. C.A.) (speeding). However, in those cases the proscribed conduct resulted directly from the person'sown action.

Section 106(6) of the HTA, on the other hand, deals with a situation in which another person -- the child passenger -- ispotentially involved in creating the violation. [40] Second, s. 106(6) of the HTA does not expressly exclude the defence of due diligence. The language of absolute liability is well-known and has been used by the legislature in the HTA in s. 84.1. If the legislature wanted to impose the serious consequences that flowfrom the creation of an absolute liability offence, the means for so doing would have been known and available. [41] Third, I am attracted to the logic of the

interpretation of s. 106(6) of the HTA proposed in paragraph 8 of amicus curiae’s factum: Where the

section in essence creates an offence of failing to meet a standard or duty of care (the Appellant refers to it as a Standard ofvigilance -- see paragraph 26 of the Appellant's factum), in respect of another person, it is counterintuitive to suggest that the defendantcannot raise a defence of due diligence or reasonable care. [30] Comments made by the Court of Appeal in paragraphs 36 through 38 apply with equal force to s.106(2) of the HighwayTraffic Act.

Therefore, the language in s.106(2) of the Highway Traffic Act that “no person shall” does not always support the propositionthat the offence created is one of absolute liability. [31] In paragraphs 39 and 41 the Ontario Court of Appeal in Kanda noted the distinction between prescribed conduct whichresulted directly from a person’s own actions as opposed to the situation in which another person is potentially involved in creating theviolation. This is the sole exception in the analysis which I referred to in paragraph 19 of this judgment.

This is clearly a distinguishingfeature in comparing s.106(6) (now s.106(4)) with s.106(2) of the Highway Traffic Act. However, it does not change the fact that thelanguage used of “no person shall” does not necessarily make the offence one of absolute liability. [32] This conclusion also finds support in R. v. Nickel City Transport( Sudbury) (ON CA), [1993] O.J.1277, where the Ontario Court of Appeal noted the following at paragraphs 23 through 25: [23] Regina v.

Boyde (1987), 4 M.V.R. (2d) 113 (B.C.P.C.) was concerned with provisions similar to those in the case at bar and theaccused was charged with operating a commercial vehicle with an overloaded axle. Again, in contrast to the Court in Allen, supra, ShupeProv. J. agreed with Dodds Prov. J. in Lafarge, Supra, that it was particularly onerous for drivers to comply with the Act's requirements. At p.116, Shupe Prov. J. noted: Estimating the weight loads on each axle of a tractor-trailer unit entails assessing different variables with each different unit.

Thedefendant must take into account, Inter alia, the depth of the pin by which the tractor is connected to the trailer; whether the axle is fixedor moveable; and the distance between the axles. The defendant took all the steps that ware available to him to ensure that the load oneach axle was within the permissible limit. Even after he had deflated the air-boosted centre axle, the difference in weight placementwas not visually discernible. Accordingly, Shupe Prov.

J. classified the offence as one of strict liability, found that the defendant had exercised due diligence and,therefore, acquitted him. [24] On appeal by the Crown (1988), 15 M.V.R. (2d) 228 (B.C. Co.Ct.), the lower court decision was affirmed. In his reasons,MacDonald Co.Ct.J. at p.231, noted the difficulty the defendant faced in trying to comply with the legislative requirements under theAct. Relying on the Supreme Court decision in R. v. Chapin, supra, he further noted that the use of the language: "no person shall drivea commercial vehicle", does not import absolute liability. [25] In R. v.

Laidlaw Transport Ltd. (1980), 4 M.V.R. 254 [called Laidlaw #1 ] Killeen Co.Ct.J. made similar observations with respectto the use of the statutory language, "no vehicle shall". At p.264, the Court concluded that Chapin, supra, clearly indicates that the useof such language does not overcome the presumption against absolute liability.

Accordingly, he held the offence of operating acommercial motor vehicle in excess of the statutorily prescribed weight to be one of strict liability. [33] In addition, two additional points must be considered in the analysis of this fourth factor. [34] First in paragraph 40 of the Kanda decision, the Ontario Court of Appeal noted that s.106(6) (now s.106(4)) of theHighway Traffic Act does not expressly exclude the defence of due diligence and that “the language of absolute liability is well knownand has been used by the Legislature in the H.T.A. in s.84.1.

If the Legislature wanted to impose serious consequences that flow from the

creation of an absolute liability offence the means for so doing would have been known and available.” [35] The conclusion enunciated in paragraph 40 of Kanda can also be applied to s.106(2) in that the same considerations apply directly to s.106(2). [36] Second, in the Ontario Court of Appeal case of R. v.

Nickel City Transport , supra, the Ontario Court of Appeal examined the then s.99(1) of the Highway Traffic Act which indicated that “subject to s.93 no vehicle or combination of vehicles unless exempted under the regulations shall be operated on a class 1 highway where the axel unit weight on an axel unit whether or not part of any axel group exceeds…” The Ontario Court of Appeal noted the following a paragraph 34 in considering the precision of the language used in that section. [34] I agree with Laidlaw Transport #1 and the appeal court in Boyde , supra , which both relied on Chapin , supra , to hold that the language of "no operator shall ," does not import absolute liability.

Rather I think there are a number of other indicia, which have been canvassed above, before one can say that the mere inscription of particular words will overcome the presumption against absolute liability. For instance, as indicated above, I think that if the provision makes allowance for exemptions, then this could serve as a signal of the Legislature's intention not to create an absolute liability offence; clearly, it was felt that strict compliance in all cases was not necessary in the circumstances.

Therefore, I would reject the Crown's argument that the language of s.99(1)(d), Is a simple prohibition similar to the prohibition considered by this court in Kurtzman , supra . In my opinion, the language used in the provision which governs a failure to obey a red traffic signal, and the language in z.99(1)(d), are very different. The former clearly creates an offence of absolute liability. As for the latter, there is nothing magical in the language of s.99(1)(

d) which one can point to, to show that the Legislature was intent on creating an absolute liability offence… [37] The comments adopt the analysis referred to in paragraph 20 of the R. v. Nickel City Transport case where the Ontario Court of Appeal indicated the following: [20] These comments and findings are in stark contrast to those made by Dodds Prov. J. in R. v. Lafarge Canada Inc. (1989), 19 M.V.R. 253 (2d) 110. The central issue was whether the offence of operating a commercial vehicle with a gross weight which exceeded the vehicle's permit was an absolute or strict liability offence. At p.114 Dodds Prov.

J. stated the following reasons for refusing to follow the decision of Eberle J. in Laidlaw #2, supra: When the overweight provisions expressly authorize permitted exemptions, how can I t be said that the Legislature contemplated an absolute liability offence? With respect for this reason alone, the validity of the analogy between s.93 and the speeding provisions of the Highway Traffic Act must be suspect. (Emphasis added.) [38] Section 106(2) of the Highway Traffic Act is subject to the exemptions noted in s.106(6) of the Highway Traffic Act .

The fact that s.106(2) when read in conjunction with s.106(6) of the Highway Traffic Act contemplates exceptions to the prohibition of operating a vehicle without wearing a seatbelt supports the view that a due diligence defence is available as noted by the Ontario Court of appeal in the Nickel City Transport Case . [39] I have also considered the decision of R. v. Stewart, which noted the following concerning s.106(3) (now s.106(2)) of the Highway Traffic Act: …The first issue involved in the

interpretation of that section. I am going to come to the conclusion, based on the word “shall” as used in that section, that it is an absolute liability offence subject to what the offence has permitted as exemptions under subsection 5. Those exemptions relate to health, physical impediments and a particular kind of work where an individual has to alight from and re-enter the vehicle at frequent intervals. These are exemptions that permit a person to avoid compliance with subsection 3 of

section 106. As the

section indicates, it is only subject to subsection 5. So it is absolute liability on the basis of the word “shall” in that section, subject to subsection 5; those are the only permitted exemptions… [40] However, I note that Stewart was decided prior to the Ontario Court of Appeal’s decision in R. v. Kanda . The analysis in Kanda therefore supersedes Stewart and the analysis in Kanda applies with equal force to s.106(2) in virtually all respects. The one minor exception noted does not detract from the analysis.

There is also the additional aspect of exemptions as applicable to s.106(2) which further bolsters the conclusion that s.106(2) is a strict liability as opposed to an absolute liability offence. [41] Therefore as noted in R. v. Kanda there is a strong presumption in favour of strict liability in an interpretive contest between strict and absolute liability. The application of the four factors from R. v. Sault Ste. Marie leads to the conclusion that the respondent has not displaced the presumption in favour of strict liability.

Therefore, I find that s.106(2) is an offence of strict liability. [ 42 ] As the justice of the peace at trial found the offence to be an absolute liability offence the defence of due diligence was not considered and the matter would normally be sent back to the trial court for consideration of that issue. [ 43 ] I have noted however that the Crown submitted that if the court concluded that it was a strict liability offence and that a new trial was required then in all the circumstances the Crown would be consenting to a stay of proceedings rather than proceed with a new trial. [ 44 ] Therefore the appeal is allowed on this ground of appeal but a stay of proceedings is entered with respect to this matter.

Released: June 11, 2013 Richard LeDressay Signed: “Justice R.J. LeDressay”