R. v. Boyd, 2012 ONCJ 126

COURT FILE No.: Kitchener 3062086A DATE: 2012·03·02 Citation: R. v. Boyd , 2012 ONCJ 126 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under subsection 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent (on Appeal) — AND — RONALD BOYD Appellant (on Appeal) Before Justice G. F.

Hearn Heard on December 22, 2011 Reasons for Judgment released on March 2, 2012 David Dyer ............................................................................. counsel for the respondent on appeal Brian Morris ............................................................. agent for the appellant on appeal Ronald Boyd On appeal from a conviction by Justice of the Peace T. Steenson on May 19, 2011. HEARN J.: BACKGROUND: [ 1 ] The appellant was charged that on or about the 5 th day of August, 2010 while operating a motor vehicle he disobeyed a sign contrary to s. 182(2) of the Highway Traffic Act .

Section 182 of the Highway Traffic Act provides as follows: “182

(1) The Lieutenant Governor in Council may make regulations requiring or providing for the erection of signs and the placing of markings on any highway or any type or class thereof, and prescribing the types of the signs and markings and the location on the highway of each type of sign and marking and prohibiting the use or erection of any sign or type of sign that is not prescribed. Signs to be obeyed

(2) Every driver or operator of a vehicle or street car shall obey the instructions or directions indicated on any sign so erected.” [ 2 ] The trial took place on May 19, 2011. The respondent called one witness and the appellant elected to call no evidence at the trial. After hearing the evidence and submissions the presiding justice of the peace found the appellant guilty, registered a conviction and fined the appellant $85.00 and costs. [ 3 ] The appellant brings this appeal pursuant to s. 135 of the Provincial Offences Act .

The notice of appeal sets out the grounds of appeal as follows: “The learned Justice of the Peace erred in convicting the appellant as the crown failed to make out a prima facia case. The appellant is not guilty of the offence. Such other and further grounds as this Honourable Court may permit.” [ 4 ] The appeal was heard on December 22, 2011. Both the appellant and the respondent have filed factums in this proceeding and the court has also had an opportunity of reviewing all of the material provided by counsel as well as considering the submissions made.

EVIDENCE AT TRIAL: Evidence for the prosecution: Evidence of Constable Steve Sadler :

[ 5 ] Constable Sadler is a member of the Waterloo Regional Police Service and was on patrol in the Township of Wellesley in the Region of Waterloo on August 5, 2010.

Apparently there had been complaints of trucks travelling up and down Gerber Road within that township and the officer “set up” at Gerber Road where it intersects with Lawrence Road to make observations. [ 6 ] The officer described that particular stretch of road as having signs posted at either end of the road advising that no trucks were to use the roadway. [ 7 ] The signs were described by the officer as showing a large truck which the officer described to be similar to a “five ton truck or a large cube van”.

He described the truck on the sign as being black with a circle around it and a line running through it from one edge of the circle to the other through the truck indicating, according to the officer, that no trucks were permitted. According to the officer as well, the signs posted were in accordance with the regulations made under the Highway Traffic Act . He described the signs as being visible without issue on the day in question. [ 8 ] At approximately 4:25 p.m. on that date the officer had occasion to stop what he described as a large dump truck which was found to be operated by the accused Ronald Boyd.

The officer gave particulars of the truck and noted that it had a registered gross weight of 36,500 kilograms and was described as a 2002 Mac 688 dump truck. [ 9 ] As a result of his findings the officer issued a Provincial Offence notice for the charge of disobey sign contrary to s. 182(2) of the Highway Traffic Act . [ 10 ] In cross-examination the regulation in question was produced to the officer by the agent for the appellant. The officer confirmed that the regulation referred to a “no heavy truck sign” and went on to describe the dimensions of the sign as well as the markings that appear on the sign.

The officer was asked his definition of “heavy” and defined it as a “commercial motor vehicle”. [ 11 ] The agent then questioned the officer as to the legal definition of “heavy” and the officer indicated he did not have a definition. He also noted in cross-examination that the appellant was driving a “tractor registered for 36,500 kilograms”. [ 12 ] The officer considered the vehicle to be a “large dump truck”.

He also confirmed that the registered gross weight referred to the weight not to be exceeded if the truck was “full”. [ 13 ] It is of note that pursuant to s. 182 of the Highway Traffic Act the Lieutenant Governor in Council enacted Regulation 615 R.R.O. 1990. That regulation provides as follows: “ 33. A No Heavy Trucks sign shall, (

a) be not less than 60 centimetres in width and not less than 60 centimetres in height; and (

b) bear the markings and have the dimensions as prescribed and illustrated in the following Figure:” There is then a “figure” of a truck with a circle around it and a line diagonally across the circle as described by the officer.

Section 46 of the Highway Traffic Act provides that no person other than a municipal corporation or other authority having jurisdiction over a highway, shall erect or maintain a sign prescribed by the Act and regulations. ( See para. 7 of the respondent’s factum). [ 14 ] The argument of the appellant both at trial, and on appeal, centres on the failure of the Highway Traffic Act to set out a definition for “heavy truck” as contemplated by the sign illustrated in the regulation.

It is of note that pursuant to s. 46 of the Highway Traffic Act and s. 11 of the Municipal Act , 2001, S.O. 2001, C. 25, the Township of Wellesley had passed a by-law dealing with No Heavy Truck signs and in fact within that by-law, which by-law was not formally proven at trial, a definition of heavy truck is set out as follows: “ ‘heavy truck’ means a vehicle or combination of vehicles having a weight when unloaded of 4.6 metric tonnes or more, but does not include a passenger vehicle, an ambulance, a transit bus on its assigned route or a vehicle of the police or fire departments;” [ 15 ] The by-law also sets out a prohibition for heavy trucks where the sign is displayed appropriately and provides for penalties for violation of the by-law.

REASONS FOR JUDGMENT AT TRIAL: [ 16 ] The Justice of the Peace accurately set out the evidence at trial and, specifically, the particulars of the vehicle as described by the officer and the fact that the appropriate regulation and diagram associated with the No Heavy Truck sign had been put to the officer in cross-examination. The Justice of the Peace was also aware and noted on more than one occasion the onus and obligations upon “the state” to prove its case beyond a reasonable doubt. [ 17 ] The Justice of the Peace determined that the issue was what he described as a “unique little issue of statutory

interpretation” given ultimately the reliance by the appellant at trial on the fact that the Highway Traffic Act itself does not contain a definition of “heavy truck”. [ 18 ] The Justice of the Peace then went on to employ the “concept of judicial notice”. His Worship described the signs and the development of symbols on signs to convey concepts. [ 19 ] The court considered the regulation and noted the regulation was designed to deal with “large trucks or heavy trucks”. The court found the fact that such a “heavy truck” was not defined within the Highway Traffic Act itself was not necessarily the end of

the matter and that principles of statutory

interpretation permitted the court to rely on “everyday language” to interpret the words of the statute or regulation. [ 20 ] As a result he concluded that the wording used of “heavy truck” meant clearly that the concept was to include a large truck, a transport trailer or something that can carry large cargoes. [ 21 ] The court considered and took judicial notice of the fact that people could distinguish a vehicle or pickup truck from a larger vehicle and found that it was quite clear the sign referred to heavy trucks, large trucks and that a dump truck “at first blush falls within that category no problem”. [ 22 ] The court referred to commercial motor vehicles such as that before the court as defined within the Highway Traffic Act and noted that they were used for the “purposes of hauling”.

The Justice of the Peace determined that that was the purpose of a dump truck and concluded that a dump truck would “easily encompass” the symbol provided on the sign for a heavy truck. JURISDICTION OF THIS COURT ON APPEAL: [ 23 ]

Section 136 of the Provincial Offences Act deals with the authority of the appeal court and the scope of that authority when hearing an appeal.

Section 136 states as follows: “136.

(1) Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined. Review

(2) An appeal shall be conducted by means of a review. Evidence

(3) In determining a review, the court may, (

a) hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit; (

b) receive the evidence of any witness whether or not the witness gave evidence at the trial; (

c) require the justice presiding at the trial to report in writing on any matter specified in the request; or (

d) receive and act upon statements of agreed facts or admissions.” [ 24 ]

Section 138 states: “138.

(1) Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.” [ 25 ] The case law sets out the broad scope of the jurisdiction of the appeal court when dealing with appeals under Parts I and II of the Act and differentiates the manner of dealing with those appeals from appeals under

Part III. In dealing with appeals under s. 135 the court is not limited as to when it may intervene. Specifically, the court is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law or indeed that the sentence imposed at trial was unfit, unreasonable or erroneous in principle. All of which are relevant to the determination of

Part III appeals but not appeals under Parts I and II. [ 26 ] The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered. See Regina v. Martin , [2008] O.J. No. 1803 . [ 27 ] In Regina v. Gill , [2003] O.J.

No. 4761 the court considered the authority under the relevant provisions of the Provincial Offences Act dealing with appeals such as that before the court and noted as follows: “It is not necessary to decide the limits of my authority under these appeal provisions. It suffices to conclude for present purposes that I am quite satisfied that the issue of sufficiency of the evidence to support the conviction is well within my broad jurisdiction. Further, I am of the view that I must review the record before me and reach my own conclusion on the issue.

It is not a matter of deferring to the trial justice’s conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the

Part III provisions to

Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue I should accept the trial justice’s findings unless they are unreasonable.” POSITION OF THE APPELLANT: [ 28 ] The appellant takes the position that the Justice of the Peace erred in employing the concept of judicial notice in order to consider what encompasses a “heavy truck”. Specifically, the appellant takes the position that judicial notice should only be applied in situations “of a well known and indisputable fact”.

The appellant relies on the fact that there is no definition of “heavy truck” contained within the Highway Traffic Act or the regulation thereunder and submits there are “large dump trucks and there are larger dump trucks”. [ 29 ] The appellant relies on an unreported decision, Regina v. Ruscitti , a decision of the Ontario Court (Provincial Division) as it then was, dated April 2, 1993 where a similar charge was dismissed by the court on the basis that where there was a failure to provide

a definition of “heavy truck” within the legislation such charge must fail. In that case, as here, the relevant by-law did in fact provide a definition of “heavy truck” whereas the authorizing legislation, i.e. the Highway Traffic Act under which the accused there as well had been charged did not provide such a definition.

POSITION OF THE RESPONDENT: [ 30 ] The respondent argues that although the Highway Traffic Act itself does not provide a definition of “heavy truck”, it does provide for the erection of such signs by municipalities pursuant to the provisions of the Highway Traffic Act and the regulations made thereunder. The respondent states that the Township of Wellesley’s by-law relevant to such signs does set out a definition of “heavy truck”, defining such trucks as those weighing more than 4600 kilograms.

In that regard I note that the factum of the respondent erroneously refers to the “Township of Woolwich” in paras. 13 and 14 as well as para. 17. I have considered that to be an error only and understand the references within those paragraphs to refer to the Township of Wellesley and have proceeded on that basis. [ 31 ] The respondent also refers to other legislation in effect in the Province of Ontario where weights are set out for various

definitions of motor vehicles and submits on the basis of that legislation as well as the by-law it is clear that the term “heavy truck” suggests a gross vehicle weight of 4500 to 4600 kilograms. [ 32 ] The respondent urges the court to find that the case relied upon by the appellant is distinguishable as the court there was not provided with the “applicable by-law” and other legislation setting out the definition for “heavy truck” as in the case at bar, nor with the relevant provisions of the Municipal Act . [ 33 ] Further, the respondent submits that the Justice of the Peace did not err in considering everyday language to interpret the meaning of “heavy truck” even in the absence of a definition within the legislation.

ANALYSIS: [ 34 ] In dealing with this appeal and fully appreciating the scope of review as noted previously, it is important to appreciate the facts that were before the Justice of the Peace as well as what was not before the trial court and is now placed before this court. (

a) Uncontested Facts at Trial: (

i) On Gerber Road in the Township of Wellesley in the Region of Waterloo there are located signs posted at either end of the road advising that no trucks were to use the roadway. The signs are properly placed and authorized in accordance with the provisions of the Highway Traffic Act and the Municipal Act . There is no issue taken with respect to the placement of the signs nor the authority of the municipality to do so.

The signs were described by the officer at trial and the appropriate regulation and diagram of the signs were put to and confirmed by the officer as well in cross-examination. (ii) On August 5, 2010 Constable Sadler had occasion to stop what he described as a “large dump truck” on the roadway. He provided evidence as to the particulars of the truck including among other particulars the fact that the truck registered a gross weight of 36,500 kilograms and was described as a “dump truck”. (iii) The officer considered the vehicle to be a large dump truck and a “commercial motor vehicle”.

Although the officer did not give evidence as to “the legal definition of ‘heavy’”, he did note the appellant was driving a “tractor registered for 36,500 kilograms”, meaning apparently that that was the gross weight not to be exceeded if the truck was “full”. Again, on more than one occasion the officer described the vehicle as a “large dump truck” and it appears at the time of the stopping the truck was not carrying a full load. (

b) Legislation Placed Before the Trial Court: [ 35 ] From the transcript it is clear the only legislation referred to at the trial of this matter was the Highway Traffic Act and the regulation made thereunder permitting a municipal corporation to maintain and erect such signs as were in place on the date in question.

There was no issue taken with the authority of the municipality to place such signs nor the fact that such signs were placed on the roadway appropriately and were visible on the day in question. [ 36 ] On appeal the respondent has filed in its factum copies of regulations made under various legislation ( Environmental Protection Act , Insurance Act and Apprenticeship and Certification Act ).

This was done to indicate that there is legislation in place in Ontario (however, not the Highway Traffic Act ) which defines the terms “heavy truck”, “heavy commercial vehicle” and “heavy vehicle”. (See Tabs 3, 4 and 5 of the respondent’s factum).

There is nothing on the record from the trial court to indicate those various enactments were placed specifically before the Justice of the Peace, nor did the Justice of the Peace refer to them in his reasons as being persuasive or relevant to a determination of the issue of what a “heavy truck” might be under the Highway Traffic Act . [ 37 ] Notwithstanding that, both the trial court and this court are obligated to take judicial notice of such legislation. Judicial notice must in fact be taken of the enactment and contents of

an Act as well as the making, approval where required, and the contents and publication of regulations made under such legislation. (See Legislation Act , 2006, S.O. 2006, Ch. 21, Sched. F, s. 13 and s. 29). (

c) Legislation Not Before the Trial Court: [ 38 ] The respondent in its factum has also set out provisions of the Municipal Act and the relevant by-law from the Township of Wellesley which deals with the erection of the subject signs and which by-law does in fact include a definition of “heavy truck”. That particular by-law was never formally placed before the trial court, nor proven.

Although the charge before the court is not a charge alleging a contravention of the by-law, the placement of that by-law before the court might have had the same persuasive value when dealing with the finding of whether or not the subject truck was a “heavy truck”. [ 39 ] However, that was not done at trial and when the respondent indicates in its factum in para. 18 that the decision relied upon by the appellant can be distinguished as the court there was not provided with the applicable by-law “as in the case at bar”, that is

not accurate as there is nothing on the record to indicate that the by-law was provided to the trial court at all. Further, neither the trial court nor this court are entitled to take judicial notice of municipal by-laws. ( Legislation Act , 2006, S.O. 2006 Ch. 21).

Although proof of the existence of a particular by-law and its terms may be circumstantially inferred without production of a certified copy of the relevant by-law, there is nothing before this court to enable the court to conclude that there was even a reference to the by-law at trial by way of evidence or by way of reference in the Justice of the Peace’s reasons. [ 40 ] It might have been preferable for the charge to have been proceeded with by way of a by-law infraction where the definition of “heavy truck” is contained within the necessary by-law or, at the very least, have that by-law available for reference and persuasive argument with respect to what a “heavy truck” includes.

Be that as it may, that was not done and this court is in no better position than the trial court in considering the provisions of the municipal by-law relevant to the issue as the by-law has never been proven circumstantially or otherwise. [ 41 ] The Justice of the Peace analyzed the evidence and approached the issue of what comprises a “heavy truck” utilizing the concept of judicial notice. Judicial notice is a principal or rule of evidence that dispenses with proof of matters of fact or law in criminal proceedings.

The trial judge accepts the existence of a proposition of fact or law notwithstanding that no party to the proceedings has proven it by admissible evidence before the trier of fact. [ 42 ] A court may take judicial notice of facts that are: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or, (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [ 43 ] The appellant argues that there are “large dump trucks and there are larger dump trucks” but that is not really a relevant consideration in this particular case as the definition does not relate to “large dump trucks” but a “heavy truck”.

In Regina v. Ruscitti the court took the position that without a definition of the term “heavy truck” within the legislation, i.e. the Highway Traffic Act , a charge similar to that before the court must fail.

The Justice of the Peace here distinguished that case on the basis that the court there had not apparently considered the issue of judicial notice. [ 44 ] The reasons of the Justice of the Peace clearly indicate to this court that His Worship was looking at the ordinary meaning of the words in the context of the evidence before the court. [ 45 ] Notwithstanding that this court does not necessarily agree judicial notice was the appropriate means of approaching the issue, ultimately this court finds that the Justice of the Peace undertook a proper analysis of the facts that were before the court in this particular case and ultimately arrived at the appropriate decision.

The issue of the ordinary meaning of words is a matter of fact. There is a presumption in favour of the ordinary meaning of words of a non-technical nature and the question here really is: Does the term “heavy truck” have a meaning so general that everyone knows what that means? [ 46 ] There is no statutory definition of the term here which would have eliminated the argument advanced by the appellant. This court is satisfied that when one looks at the plain and ordinary meaning of the words in the context of this particular case it is clear that there is uncontested evidence: (

a) the truck was described as a “large dump truck”; (

b) the officer described the sign as showing a truck that was similar to a “five tonne truck or large cube van”; (

c) when asked to provide his definition of “heavy” the officer defined it as a “commercial motor vehicle”; (

d) details were provided that indicate the truck had a registered gross weight of 36,500 kilograms. [ 47 ] All of these facts in evidence at trial are relevant to a determination of whether or not on a plain and ordinary meaning of the words “heavy truck” the truck in question on this occasion fell within that classification. [ 48 ] It certainly is open to argument that what comprises a “heavy truck” may not be so notoriously or generally accepted as not to be the subject of debate among reasonable persons.

Whether or not the proper approach was to consider the issue as one of judicial notice, ultimately the approach taken by the Justice of the Peace, however it may be classified, was the appropriate approach to take and one that this court would adopt. [ 49 ] In addition, although not before the trial court, the trial court would have been quite within its jurisdiction to take judicial notice of other legislation in place in Ontario which deals with similar issues by way of definition and using those

definitions as some guidance. The legislation is specifically before this court, even in the absence of judicial notice to be taken of statutes, and this court has considered those

definitions as well as the facts of this particular case in determining that the finding of the Justice of the Peace is reasonable. Upon review of all of the evidence and the matters properly before this court, this court would reach the same conclusion as the trial court. [ 50 ] As a result, the appeal will be dismissed. Released: March 2, 2012

Signed: “Justice G. F. Hearn”