R. v. Motovylets, 2011 ONCJ 427

COURT FILE No.: 10 241 Citation: R. v. Motovylets, 2011 ONCJ 427 ONTARIO COURT OF JUSTICE BETWEEN: VYACHESLAV MOTOVYLETS APPELLANT — AND — HER MAJESTY THE QUEEN RESPONDENT DECISION ON APPEAL AUGUST 24, 2011 Mr. Brian Fortune ............................................................................................. for the Respondent Mr.

Tony Debley .................................................................................................. for the Appellant CAMPBELL J.: NATURE OF APPEAL: [1] The Appellant was convicted on November 19th, 2010 of the offence of having entered inaccurate information in a daily logconcerning his hours of operation of a commercial motor vehicle, contrary to Ontario Regulation 555/06 of the Highway Traffic Act. [2] His Appeal to this Court is from a conviction under

Part 1 of the Provincial Offences Act. Pursuant to

Section 138, this Courtmay affirm, reverse or vary the decision appealed from or where necessary to satisfy the ends of justice, direct a new trial. [3] The Certificate of Offence at issue read as follows: I W. Ross believe and certify that on the day of 2010/03/21 Motovylets, Vyacheslav … did commit the offence of: Enter inaccurateor false information in daily log, contrary to: Highway Traffic Act, Ontario Regulation 555/06 section 27 (1).

SUMMARY OF FINDINGS AT TRIAL [4] The Appellant argued at trial that the offence had not been made out insofar as the Certificate of Offence alleged an offence dateof March 21, 2010, being the date when the inspector stopped the appellant and found the discrepancy between the daily log and sourcedocumentation, whereas the actual date of the false entry occurred on March 17, 2010. [5] The Justice of the Peace relied upon the decision in R. v.

Rutherford (1990) (ON CA), 75 C.R. (3d) 230,finding that the false entry in the log entered March 17, 2010 was a continuing offence through to the date of discovery by the inspectoron March 21, 2010 when the charge was laid. As a result, she made a finding of guilt and entered a conviction. [6] The standard of review on this appeal is one of reasonableness of the verdict. That is to say, whether a properly instructed trierof fact acting judicially could reasonably make a finding that the appellant entered inaccurate or false information in his daily log asalleged on March 21, 2010.

The relevant legislative and regulatory provisions at issue are attached as an appendix to these reasons. SUBMISSIONS ON APPEAL

[ 7 ] The Appellant conceded that the evidence supported the finding that the log book entries on March 17, 2010 were in fact false but asserted that the offence was not a continuing one and as such, the allegation that the offence occurred on March 21, 2010 had not been proved. To this end the appellant argued that the date was a material element of the offence. In furtherance of this position he pointed to the distinction between specifics required as to date and time in a Certificate of Offence issued under

Part 1 in contrast to an Information laid under

Part III of the Provincial Offences Act which calls for particulars concerning an offence alleged to occur “on or about” a prescribed date. ANALYSIS [ 8 ] There is on the face of it a certain attraction to the appellant’s argument with respect to this distinction. The prescribed form suggests there ought to be swift and timely disposition of matters that fail to prove the date of offence and with that it would appear that the very nature of a

Part I Certificate offence proceeding is to allow the prosecution to move through the system with due dispatch. [ 9 ] However, the Provincial Offences Act, R.S.O. 1990, c. P. 33 subs. 34(3) provides as follows: “34.

(3) A variance between the Information or Certificate and the evidence taken on the trial is not material with respect to, (

a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or Certificate issued within the prescribed period of limitation." [ 10 ] There is no issue in this proceeding in regard to the period of limitation. The Certificate of Offence was issued the same day of inspection and discovery by the Ministry of transportation Inspector. [ 11 ] A review of s. 27, which forms the basis for the allegation and conviction at trial, reveals that neither the date nor time is a material element of the offence.

And with this, subsection 34(3) specifically provides that a variance between the certificate and evidence at trial with respect to time of the offence is not material. Accordingly, the offence is made out upon proof that the appellant entered inaccurate information or falsified information in his daily log. [ 12 ] Insofar as the finding that this was a continuing offence is concerned, there is no reason to engage in what would be an esoteric exercise. The end result of this appeal would nevertheless remain the same.

If following an analysis of the jurisprudence I concluded that it was a continuing offence, the appeal would be dismissed and the finding at trial affirmed.

Alternatively, even if I were to conclude that this was not a continuing offence, I would nevertheless affirm the decision at trial in any event insofar as the offence alleged to have occurred on March 21, 2010 was in fact proven beyond a reasonable doubt. [ 13 ] It is clear that the intent of the relevant provisions of the Highway Traffic Act and regulations in regard to the maintenance and surrender of daily logs is to allow police officers and inspectors appointed for the purpose of carrying out the provisions of the Act the ability to adequately safeguard motorists from potential dangers that might occur where a commercial operator drives on a highway at a time when it would be unsafe to do so.

Implicit within the spirit and intent of the legislation is the requirement that an operator maintain complete and accurate records so that an inspector can be adequately informed while discharging his duty. [ 14 ] It is conceded that the appellant was operating on a fourteen day cycle on March 21, 2010 when he was asked to produce his daily logs.

O.Reg. 555/06 section 23 (1) makes it clear that the Appellant was required to have the daily logs for the entirety of the fourteen days in his possession and to surrender same together with supporting documents upon demand. [ 15 ] There is no dispute that the log entry for March 17, 2010 was false. Based on the requirement to maintain and have available the log for inspection, the false entry remained a valid and subsisting log entry on March 21, 2010. It was no less false or inaccurate when the appellant submitted it to the inspector following demand.

It would be absurd to conclude that the delivery of inaccurate information previously recorded and maintained during the fourteen day cycle, should be of no consequence on the date of demand. The appellant had a duty to produce accurate information to the inspector so that the he could make an informed decision as to compliance. Regardless of the date of entry, the log entry as presented March 21, 2010 was false. To my mind, it was open to the inspector to allege an offence date of either March 17 or March 21, 2010.

CONCLUSION : [ 16 ] I am satisfied that the decision reached by the Justice of the Peace was entirely reasonable either as a continuing offence or for the reasons provided. As such, the judgment is affirmed and the appeal is hereby dismissed. Dated at the City of Windsor this 24 th day of August, 2011. _______________________________ Justice Gregory A. Campbell Ontario Court Justice

APPENDIX “A” “ Highway Traffic Act, RSO 1990, c. H. 8 : “s. 190.

(3) Ever driver shall maintain a daily log and shall carry it at all times while in charge of a commercial motor vehicle on the highway. s. 190.

(4) Every driver who is required under subsection (3) to carry a daily log shall surrender it to any police officer or officer appointed for the purpose of carrying out the provisions of this Act upon demand by the officer. s. 190 (7) The Lieutenant Governor in Council may make regulations, (

a) prescribing the books, logs and records that shall be kept by operators and drivers of commercial motor vehicles; (

b) requiring the retention of books, logs and records, the information to be contained and the entries to be recorded therein and the places where they shall be kept; (

c) prescribing hours of work, periods of rest and other requirements for the purpose of subsection (2), including prescribing different hours or periods for different types of work or driving; (

d) exempting any person or class of persons or any vehicle or class of vehicles from any requirement in this

section or any regulation made under this

section and prescribing conditions for any such exemption. (

e) Repealed: 2009, c. 5, s. 52 . “ Ontario Regulation 555/06 - Hours of Service s. 9.

(1) After a driver has accumulated 13 hours of driving time from the end of the most recent period of eight or more consecutive hours of off-duty time, the driver shall not drive again unless he or she takes at least eight consecutive hours of off duty time. s. 9.

(2) After a driver has accumulated 14 hours of on-duty time from the end of the most recent period of eight or more consecutive hours of off-duty time, the driver shall not drive again unless he or she takes at least eight consecutive hours of off –duty time. s. 9.

(3) After 16 hours have elapsed from the end of the most recent period of eight or more consecutive hours of off-duty time, the driver shall not drive again unless he or she takes at least eight consecutive hours of off-duty time. “Cycle Requirements s. 12.

(1) An operator shall require that each driver follows either a 7-day or a 14-da cycle, as designated by the operator for the driver. s. 13.

(3) A driver who is following a 14-day cycle shall not drive again in that cycle after accumulating 120 hours of on-duty time during any period of 14 days or during the period beginning on the day on which the cycle was reset under

section 14, whichever is less. s. 13.

(4) A driver who is following a 14-day cycle shall not drive again in that cycle after accumulating 70 hours of on-duty time without having taken at least 24 consecutive hours of off-duty time during the period when the 70 hours were accumulated. “Record Keeping s. 17.

(1) Every driver shall keep a daily log each day that accounts for all of the driver’s on-duty time and off-duty time for that day in accordance with this Regulation. “Contents of a Daily Log s. 19.

(1) A driver shall, at the start of each day, enter the following information in the daily log: 1. The driver’s name.

2. The date. 3. The name of the driver’s co-drivers, if any. 4. The start time of the day being recorded, if the day does not start at midnight. 5. The cycle that the driver is following. 6. The odometer reading, at the start of the day, of the commercial motor vehicle to be operated by the driver. 7. The number of hours of on-duty time and the number of hours of off-duty time, within the meaning of this Regulation, that the driver accumulated each day during the 14 days immediately before the start of the day, for which the driver was exempt from this Regulation and not required to keep a daily log, recorded in the “Remarks”

section of the daily log. 8. The number plate of each commercial motor vehicle to be driven and each trailer to be drawn by the driver on the day. 9. The name of the operator for whom the driver is to drive during the day. 10. The addresses of the driver’s home terminal and of the principal place of business of the operator for whom the driver is to drive during the day. s. 19.

(2) A driver shall, over the course of each day, enter the following information in the daily log: 1. The start and end times for each duty status during the day. 2. Each city, town, village or highway location and the province or state where the driver’s duty status changes. s. 19.

(3) A driver shall, at the end of each day, enter the following information in the daily log: 1. The total time spent in each duty status during the day. 2. The odometer reading at the end of the day. 3. The total distance driven by the driver. “Required to carry and surrender daily logs and supporting documents s. 23.

(1) A driver who is required to keep a daily log shall not driver unless the driver has in his or her possession, (

a) a copy of the daily logs or a copy of the record required to be kept under subsection 18(3), for the preceding 14 days; (

b) the daily log for the current day, completed up to the time at which the last change in the driver’s duty status occurred; and (

c) any supporting documents. s. 23.

(2) A driver shall forthwith surrender the documents referred to in subsection (1) for inspection upon the demand of an inspector. s. 27.

(1) No person shall enter inaccurate information in a daily log or falsify, mutilate or deface a daily log or any supporting documents.”