Waterloo (Regional Municipality) v. Hampton, 2012 ONCJ 838

COURT FILE No.: 4461 999 5489022A - 00 DATE: 14 December 2012 Citation: Waterloo (Regional Municipality) v. Hampton , 2012 ONCJ 838 ONTARIO COURT OF JUSTICE BETWEEN: Waterloo (Regional Municipality) — AND — Raymond Hampton Before Justice of the Peace W. Rojek Heard on April 11,2012 and August 14,2012, Reasons for Judgment released on Friday, December 14, 2012 Mr. D. Dyer.................................................................................................... for the prosecution Ms. S. Whalen and Mr. F.

Alfano .................................... for the defendant Raymond Hampton JUSTICE OF THE PEACE Rojek: Mr. Raymond Hampton has been charged that on or about the 7 th day of June 2011 at 6:47 pm at Concession Street in the City of Cambridge, did commit the offence Motorcycle Handlebars More Than 380 Millimetres High, contrary to Regulation 596 of the Highway Traffic Act , section 10(1) . The Defendant, represented by Ms. Whalen and Mr. Alfano, plead not guilty. The defence brought a motion to find that the said s. 10(1) of the Regulation 596 was not constitutional.

The Prosecution and the Defence agreed to hear evidence for the purpose of Trial and Motion Hearing were heard at the same time. The only evidence presented for the purpose of the trial was testimony of Cst. Weber and photograph filed as Exhibit # 1. Officer Weber testified that on the 7 th day of June 2011 he was in marked Waterloo Regional Police cruiser on routine patrol. It was in the City of Cambridge. When the officer was at the intersection of Concession street and Christopher Street he observed a motorcycle travelling westbound on Concession Street.

Constable Weber qualified that motorcycle as a motor vehicle as defined by the Highway Traffic Act . The height of the handlebars of that motorcycle caught attention of the Officer Weber.The hands of the operator of that motorcycle were above shoulder height of the operator. The hands of the operator were extended straight out. Constable Weber positioned himself behind the motorcycle when the motorcycle was stopped for the red light at the intersection of Concession Street and Ainslie. The plate number of the motorcycle was 5W197. The operator was the only person on that vehicle.

The motorcycle was 2000 Harley-Davidson, orange in colour. Constable Weber took a photo with his iPhone smartphone, mailed the photo to his email address and printed the photograph at the police station. The photograph was filed, on consent, as Exhibit # 1. Exhibit # 1 shows a motorcycle with handlebars above shoulder of the sole rider and licence plate attached showing the number of 5W197. Constable Weber activated his emergency lights and conducted a traffic stop. The operator of the motorcycle in question identified himself to the officer with valid photo Ontario Driver’s License as Mr.

Raymond Hampton with the date of birth 16th day April 1973.The officer was satisfied with the identity of the defendant and identity was not questioned. Constable Weber used standard fiberglass measuring tape to measure the distance from the ground to the top of the seat while Mr.

Hampton was seating on his motorcycle. The seat was depressed by the defendant sitting on it. The distance was 60 centimetres. Constable Weber measured then from the ground to the top of the handlebar and the distance was 143 centimetres. The difference between these two measurements was 83 centimetres or 830 millimetres. The distance allowed under s. 10(1) of the Regulation 596 must not exceed 380 millimetres. Constable Weber testified that he spent ten years in the traffic branch investigating major collisions and during these investigation he was required to take very accurate measurements.

Constable Weber told the court that he was using measuring tape during his 24 years career as a police officer. Constable Weber explained in detail how this measurements were taken responding to questions during cross examination. He stood on the left side of the motorcycle. Dangled the tape down almost like a plumb bob so it would be the shortest distance to the ground from the top of the seat. He placed his at the level of the top of the seat. Officer Weber explained that he used the front or “the horn of the seat” as measuring point.

Officer Weber stated he used the top of the handlebars not the ends of them as measuring point. Constable Weber testified that there different types of motorcycle seats but the type of the handlebars as shown on the Exhibit # 1 are usually associated with the type of seat as on the defendant’s motorcycle. Officer Weber stated that there are not standard procedures as to how to measure the distance between the top of the handlebars and the seat on motorcycles. That it amounts to taking two measurements and then calculating the difference.

Officer Weber testified that the horn of the seat height could be shifting a centimeter or two depends how much the seat would be depressed. This was the evidence presented to the court during trial proper. The evidence presented with respect to the motion can be summarized as follows : Officer Weber testified that he rides motorcycles both for his own use and in the course of his police officer’s duties. When questioned, in cross-examination why the high handlebars should be of any concern answered that it’s difficult to keep arms above the head for the longer period of time.

That if there is a need to make a sharp turn one arm can be bent but the other one being fully extended the operator will have the grip pulled away from his hand or move forward. It would be not safe. Constable Weber testified that if the handlebars are slightly over allowed height they would cause not too much concern. The ones that are exorbitantly high would. The motorcycle as shown on photograph Exhibit # 1 was categorized by Officer Weber as the one causing concern. Mr. Hampton testified with respect to the motion only. Mr. Hampton confirmed that he was operating his motorcycle on June 7, 2011.

He was pulled over by Constable Weber. The reason for that traffic stop was the height of his handle bars. That he was stopped by OPP officer on August 13, 2010. The OPP officer measured height of his handlebars using a homemade wooden device. The measurements were taken from the top of his seat to about three inches below the highest point of the handlebars, the place where switch housing was mounted. In cross-examination advised the Court that the OPP officer found that the height was double the allowed 380 millimetres. Mr.

Hampton explained to the Court that the he enjoys his handlebars and they made his sit up straighter. That he rides motorcycles as licensed rider for 13 years and rode dirt bikes before that. Mr. Hampton testified that he went to see some other, stock which I understand were not modified, motorcycles and measured the height of their handlebars in similar fashion as Constable Weber used. The measurements were as follows: Honda Fury 440 millimetres Indian 440 millimetres Kawasaki 410 millimetres Honda Shadow 460 millimetres V-Star 450 millimetres.

The described motorcycles were shown on photographs filed as Exhibits # 2, 3, 4, 5, 6, 7. All measurements were taken using a regular standard Stanley measuring tape with the defendant seating on these motorcycles. Mr. Hampton stated that when the photograph Exhibit # 1 was taken he was slouched and when he was moving on that motorcycle he would more straight up so the handgrips would not be above his shoulders. Mr. Hampton said that he was not concerned about safety riding his motorcycle due to his handlebars.

Mr. Hampton explained that his handlebars do not obstruct his view, the rear mirrors do. Mr. Hampton admitted that if he were to drive in “slouched” position as shown on Exhibit # 1 his handlebars would interfere with his field of vision but when he is in motion straight up they don’t. Mr. Hampton admitted in cross-examination that if he were to ride in the position as shown in the photograph Exhibit # 1 the handlebars of his motorcycle would in the field of the vision of the rider.

That riding motorcycles with their handlebars mounted as shown in the photographs Exhibits 2 to 7 would make him riding in a slouched position and the motorcycle on his own motorcycle were making the ride more comfortable. That he drove motorcycle with lower handlebars but he sold them and replaced them with the current one because they caused him some discomfort for riding in slouched position. The Defendant stated that he did not have any accidents while riding his previous motorcycles. When questioned why he changed to his current vehicle answered that he did that for comfort reason. Mr.

Hampton also explained that comfort in riding a motorcycle is a safety concern, because if the rider is not comfortable he/she pays more attention to jiggling in their seats than paying attention to the road. In his case the high handlebars make him to sit up straighter. The Defendant advised the court that he does not ride using a full face helmet because it cuts down his peripheral vision. Ms. Cargill testified with respect to the Motion Hearing. She stated that she was riding a motorcycle for approximately twenty years.

That she tried to ask some police officers about height of handlebars but could not get a straight answer. Ms. Cargill confirmed that she was present when the measurement of the motorcycle, Harley Davidson Soft Tail, was taken. Exhibit #2. The handlebars were 500 millimetres higher than the seat. The next example was shown on Exhibit # 9 depicting Harley Davidson Fatboy motorcycle, the handlebars were 43centimetres (430 millimetres) higher than the seat. The Harley Davidson Sportster as shown on photograph filed as Exhibit # 10 had handlebars 40 centimetres (400 millimetres) above seat.

The Indian motorcycle as shown on the photograph marked as Exhibit # 11 had its handlebars 440 millimetres higher than the seat. Ms. Cargill testified that the shown motorcycles were offered for sale, they were 2012 models and their handlebars did not seem too high. Ms. Cargill testified that she has blind spots in every vehicle she drives including her car and truck. Ms. Cargill stated that the important part of the handlebars as to safe operation of the motorcycle would be had grips because this is the height at which the rider control his/her vehicle. Mr.

Jeffrey Turner is an employee of the Ministry of Transportation. He works in Safety Policy and Education Branch as a Vehicle Standards Engineer and has been quailed as an expert witness for the proceedings on motion. In his Affidavit Mr. Turner stated as follows: The first rule on the height of the handlebars came into force in 1960 added to Regulation 227 as section 35(1). Throughout the time the subsequent changes were made in 1967- height of 15 inches was specified as maximum, which were about four hundredths of an inch more than 380 millimetres.

Section 35(1) of the Regulation 302 read: No person shall operate upon a highway a motorcycle equipped with handlebars that are more than fifteen inches in height above the uppermost portion oa seat provided for the operator when the seat is depressed by the weight of the operator. (Exhibit B, C to Mr. Turner’s Affidavit ) The above wording of rules that regulates the height of the handlebars of a motorcycle has not been changed in last 44 years. The law came into effect on October 1, 1967. The following changes included adding motor assisted bicycles in 1975 (Regulation 911/75 Exhibit D to Mr.

Turner’s Affidavit). The permitted height has been changed from imperial to metric system in 1978 (Regulation 671-78 s.9, s. 27(1), Exhibit E to Mr. Turner Affidavit) There were no changes to the wording after that change. (Regulation 469 s.27 (1), Regulation 596 s. 10(1) , Exhibits F and G to Mr. Turner Affidavit. Mr. Turner classified the rule of the maximum height of the handlebars as a legislative safety policy. Mr. Turner provided a brief review of other jurisdictions restrictions on the allowed height of handlebars. Manitoba- 390 millimetres, s. 51 of the Manitoba Highway Traffic Act , Exhibit H to Mr.

Turner Affidavit, Nova Scotia- 12 inches above the point of attachment to the frame s. 21(

a) Standard of Vehicle Equipment Regulation under Nova Scotia Motor Vehicle Act, Exhibit I to Mr. Turner Affidavit, British Columbia to the top of the driver shoulders s. 7.14(

b) of Division 7 of the Motor Vehicle Act Regulations under British Columbia Motor Vehicle Act Exhibit J to Mr. turner Affidavit. Saskatchewan maximum handlebars height of no higher than the shoulders of a seated driver s. 230(a), Vehicles Equipment Regulations 1987 under Saskatchewan Traffic Safety Act. Exhibit K to Mr. Turner Affidavit. Quebec height as handlebars are installed by the manufacturer s. 150 Regulation Respecting Safety Standards for road vehicles, 1998, under Quebec Highway Safety Code, Exhibit L to Mr. Turner Affidavit.

Eighteen States of the USA has height restriction of 15 inches for the handlebars – Alabama, Alaska, Delaware, Georgia, Hawaii, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Nebraska, Ohio, Rhode Island, Texas, Utah, Vermont and West Virginia as well as District of Columbia. Seventeen States of the USA have some restriction on handlebars height- Arizona, California, Connecticut, Florida, Illinois, Maine,

Mississippi, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, South Dakota, Washington, Wisconsin, and Wyoming. Mr. Turner identified following safety concerns pertaining to excessively high handlebars- Restriction on driver field of view, reduced immediate awareness of changing traffic and road conditions, Increased difficulty in controlling a motorcycle particularly during braking. With respect to first concern Mr. Tuner explained that s. 18(1)(

b) of the Regulation 340 -94 mandated that the holder of Class M driver licence must have horizontal visual field of at least 120 continuous degree along the horizontal median and at least 15 continuous degree about and below the point of fixation The regulation mandates an uninterrupted rectangular horizontal field of vision that is at least 120 degree wide and at least 30 degree from top to bottom. The reason is to allow the driver to have an ability to observe and to respond to road and traffic conditions. (Exhibit 340-94, Exhibit M to Mr.

Turner’s Affidavit ) The handlebars are elevated to the point that they impede that field of vision. The maximum height of 380 millimetres would keep the handlebars at the bottom of average male driver sternum and would not impede the field of vision. To illustrate the above statement Mr. Turner filed three diagrams marked as Exhibit N to his Affidavit. Mr. Turner explained the second reason in the following statement : The application of brakes will result in a decelerating force being applied at the point of contact between the motorcycle and the ground.

That force will be acting through the centre of gravity of the motorcycle and the driver. To react to such force the driver has to be securely in contact with foot rests and handlebars and to some extent with the seat and gas tank. Strong braking will cause the driver to move forward and will be resisted by the driver by combination of the hand grips, seat, fuel tank and foot rests.

The handlebars within 380 millimetres limit will allow the hand of the driver to be located directly forward of the rider centre of gravity and in the position allowing the rider to apply significant force into the hand grips in line with the direction of travel. A rider with elevated handlebars who is not strong enough to maintain an upright position during hard braking could become displaced from their seating position and lose control over such motorcycle. To measure height of handlebars would require only to find the position of a seat as depressed by the operator and measure height of the handlebars.

This could be easily done with a tape measure or a ruler. If there is a significant departure from 380 millimetres this should be much easier. The Defence cross-examined Mr. Turner on his Affidavit. Mr. Turner explained that required field of vision as described by s. 18(1) of the Regulation 340-94 would apply to other categories of driver licenses as well. Mr. Turner explained that the Regulation does not speak to the requirements of any motor vehicle. The field of vision is mandated by s. 74 of the Highway Traffic Act which stipulates- No person shall drive a motor vehicle upon a highway

a) Unless the windshield and windows on either side of the compartment containing the steering wheel are in such condition as to afford the driver a clear view to the front and side of the motor vehicle. Mr. Turner said that this

section would call for 180 degrees horizontal field of vision because it refers to front and side windows. Mr. Turner explained that cars have generally speaking adjustable steering column and seats. Mr. Turner also stated that they may be cars where pillar A on the left or right side of the windshield may be within 120 degrees vision of the driver. That usually the top of the steering wheel is 12 to 13 inches higher than the seat. Mr. Turner advised that the person in a car has the ability to change position of the seat, move forward or aft and see around the A pillars. Mr.

Turner told the Court that he obtained data as to restrictions on the height of the handlebars from American Motorcycle Association Website. Mr. Turner did not object to the information that the State of California allows height of six inches above rider shoulder and the State of Mississippi allows ten inches above the point of attachment. Mr. Turner stated that he just shown that there are restrictions in other jurisdictions and did not questioned that there may be more accurate information available. Mr.

Turner testified that the mirrors attached to the handlebars may or may not interfere with the field of vision depending on the way they were installed and he did not include the mirrors in his diagrams. Mr. Turner explained that it is the obligation on the operator of a motorcycle to make sure the vehicle is in compliance with the law. The dealership may sale a motorcycle but it will be the driver responsible person if caught. Mr. Turner viewed a photograph of a Victory motorcycle, Exhibit 12 and recognized the handlebars as ape hangers but declined to comment on the height of its handlebars. Mr.

Turner stated that he would measure the height of the handlebars from the top of almost vertical part where bends over to go to the grip. The law refers to the handlebars and not to hand grips. Mr. Turner did not quote any statistical data on safety of elevated handlebars. Mr.Tturner stated that it is not something that has to be tested. The Defence conceded that the Prosecution has proven prima facie case. Position of the Parties with respect to Motion:

Applicant (the Defendant on Trial)

Summary of Facts with respect to First Issue: Officer Weber measured distance between front part of the seat in front of the crotch of the Defendant. That part of the seat was not compressed by the weight of the rider so it was not measurement taken as required by s. 10(1) of the Regulation 596. Officer Weber stated that there was not established method of taking the measurement of the height of the handlebars. Indeed, Mr.

Hampton was charged with the same offence in August 2010 by the OPP Officer and the height of the handlebars were measured from different point on the handlebars, namely switch housing and resulted reading of 760 millimetres. Ms. Cargill stated that she was advised of three or four methods of measuring height of the handlebars. The Defence quoted Honourable Member of Parliament saying on the 28 th of March 1996 that one of the problems that arise even for police officers is trying to make a judgement call on s highway in terms of the number of centimetres.

Second issue argued by the Defence is that the section 10(1) of the Regulation is so vague that is void for Vagueness and as such unconstitutional and as such of no force or effect. This opinion is based on the fact the Officer Weber testified that his method taking the measurements is based on his

interpretation of the regulation and he is of the opinion that the arc of the handlebars should be used to measure their height. Mr. Hampton testified that he was insure how measure them. Same statement provided Ms. Cargill. Third Issue identified by the Applicant is that the s.10 (1) of the Regulation 596 is anachronistic and as such should be declared Unconstitutional and of no force or effect. To support this proposition the Defence quotes Member of Parliament, The Honourable Mr.

Gary Stewart who said on the 28 th day of March 1996 that the days of the chopper are over and so should Regulation regarding the 380 millimetres height limit. Fourth Issue (named 3rd in written submissions) is that the societal interest in this type of matter is minimal and as such a violation of the Applicant right under

section 7,9 and 26 of the Charte of Rights and Freedoms cannot be justified under

section 1 of the said Charter. The Applicant states that limits set out in the Province of Ontario are similar to many other jurisdictions in North America, however, half of Canadian Provinces allowing for higher handlebars than Ontario. The eighteen States of the United States makes only 34% of the total number of States. There are seventeen States which allow for higher than in Ontario handlebars, twelve of them allowing shoulder height. Fourteen States do not have handlebars height restrictions. Mr. Hampton testified that his handlebars did not obstruct his field of vision.

The Office of Legal Research stated that there were no scientific studies to establish why a 15 inch standard was preferred to other ones. That Office also stated there was no specific concerns pertaining to the height of the handlebars. The Applicant listed following issues and the law. Ambiguity. The can be no crime or punishment unless it is in accordance with the law that is certain. The rule of law should clearly inform a member of a society what behaviour to avoid. The discretion of these entrusted with law enforcement is limited by clear and explicit legislative standards.

On the other hand the vagueness should be recognized as a principal of fundamental justice. The public should know in advance with a high degree of certainty what conduct is prohibited and what is not. Anachronistic nature of Section 10(1) Regulation 596. The Applicant states that in determining the legislative measure for the purpose of

section 1 the court must look at the intention of the Parliament when the

section was enacted or amended, it cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provisions. The Applicant also brings to the Court attention that although having a driver’s licence is a privilege not a right, choice of vehicle is a right. The challenged regulation does not allow Mr. Hampton to adjust his motorcycle to suit his needs. This creates and imbalance , an infringement on the Defence that is not within Principle of Fundament Justice that is the cornerstone of Canadian Justice System.

The Regulation 596 s.10(1) is anachronistic and no longer needed in a social context. The types of motorcycles changed so the law should change too. The Applicant requests the Court grants stay of proceeding and make Order declaring s. 10 (1) of the Regulation 596 of no force or effect. The Crown, Respondent on the Application stated that there is no proof that a Parliament acted on Hanson’s Report. There was a discussion about the height restriction on the handlebars. It was up to the Minister empowered by the Legislation to enact regulations under Highway Traffic Act.

That the other jurisdictions regulations or lack of, bears no meaning for this case.

Section 9 of the Charter of Rights and Freedoms violation was not proved. Fundamental Freedoms as recited in s. 7 of the Charter That the Bill of Rights does not apply to the provincial legislation. The Charter of Rights intentionally omitted property rights. There is no fundamental right to ride a motorcycle as one would like to without any limits. Ambiguity or vagueness of the s. 10(1) Regulation 596 was not proved. There is nothing in that regulation to even trigger risk of violation of the s. 7 of the Charter . It is the Applicant onus to prove that is does. There is no such proof.

The Applicant stated that it was his preference to ride with the high handlebars. The applicant testified that he rode other motorcycles without high handlebars and there was no accident. The expert witness, Mr. Turner testified that the regulation was passed for the safety of the motorcyclists. The different ways of how to measure the heights of handlebars is irrelevant since it would the Courts which would eventually decide which method will be accepted. The vagueness of that

section is not any near broad spectrum of other rules, i.e. careless driving. The common sense would allow resolve the issue like in the case of what constitutes heave truck. The measuring of a distance is such a common skill that it would not require any special training. The evidence provided by Officer Weber is that he used the highest point of the compressed seat in this case the horn of the seat. He used that highest point of the handlebars. He took measurement and came with 830 millimetres.

Officer Weber testified that he was Accident Reconstructionist Level 4 and his qualification indeed included measuring distances. Officer Weber testified that as being motorcyclist he could attest that this type of handlebars could pose a safety issue due to stretched hands of the rider. This position would make controlling such motorcycle difficult. The defendant stated that he needed 830 millimetres for his own safety. The Defendant said that riding with arms lower would not enhance his ability to brace himself in the emergency situation. The there was no obstruction to his field of vision.

That, according to the Respondent, does not sound credible. If the safety in the meaning that high handlebars increase safety of riding a motorcycle was an issue that s. 7 of the Charter of Rights might be invoked. The way of measuring height was confirmed by the Applicant that he would use the highest point of himself to measure his height. Mr. Hampton confirmed that all motorcycles have a seat horn, where the seat meets the fuel tank. The Defendant said that if the applicant does not agree with the law he should attend at the MPP office and lobby to have that law changed.

The Courts should not be used to legislate. That in reality the Applicant cannot prove any violation of his Charter rights. The Applicant really would like to have a ruling that he may ride his motorcycle any way and in any shape he wants. This is not s. 7 Charter issue. The photographs of other motorcycles were not proof that the high handlebars are permitted or should be permitted. They only offer proof that such motorcycles are offered for sale. This is similar situation as some mufflers sold in store which are excessively loud but being legally sold does not make them legal to use.

The obstruction field of vision is safety issue. It is dictated by common sense. The only issue is safety not if s. 10(1) of the Regulation 596 is the good law. The Respondent stated the Applicant failed to prove that s. 10(1) violated his rights to safety or liberty. The Applicant did not prove that the regulation put his life or security in danger. In order that the vagueness could be considered that law in question should be so vague so it would not provide any guidelines to legal debate. There is no law which would not leave any situation requiring

interpretation of such law. Section 10(1) provides for clear indication what is permitted and does not allow any police officer arbitrarily charge any operator of a motorcycle. The Defendant stated it is no need to address s. 1 of the charter since the Court should find that no violation of Charter Rights and Freedoms were established. The Legislature decided not to change the law even after the debate in 1996. That there is no evidence that the motorcycles shown on photographs filed with the Court by the Applicant passed requirements of the safety examination.

Law considered: Ontario Regulation 596 section 10(1) of the Highway Traffic Act, The Canadian Charter Rights and Freedoms sections 7,9,and 24 and 2, The Canadian Bill of Rights,

Vehicle Equipment Regulation 1987 R.R.S. c. V-2.1 Reg. s.230 Regulation Respecting Safety Standards for Road Vehicles 1998, G.O.Q 2, 4557 s. 150 Case Law considered: R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, Reference re ss. 193 and 195.1(1) of the Criminal Code (Man.) (SCC), [1990] 1S.C.R. 1123, Committee for the Commonwealth of Canada v. Canada (SCC), [1991] 1 S.C.R. 139, R v. Zundel, (SCC), [1992] 2 S.C.R. 731, Waterloo (Regional Municipality) v. Bydeley [2010] O.J. No. 6063, 2010 ONCJ 740, R. v. Kennedy ( B.C.C.A.) (BC CA), [1987] B.C.J.

No. 2028, 18 B.C.L.R. (2d) 321, M.V.R. (2d) 88, Rv. Thompson (B.C.C.A.) (BC CA), [1986] B.C.J. No.388, 28 C.C.C. (3d) 575, 41 M.V.R. 158, R. v. Doucette ( N.S.C.A.)[1987] N.C.J. No. 113, 77 N.S.R. (2d) 279, 28 C.R.R. 207, 48 M.V.R. 110, Manicom et al v. County of Oxford et.al. (ON SC), 52 O.R. (2d) 137, Danson v. Ontario ( Attorney General ) (SCC), [1990] 2 S.C.R. 1086, [1990] S.C.J. No. 92, R. v. Martin, (ON CA), [1991] O.J. No. 161, 2 O.R. (3d) 16, 43 O.A.C. 378, 63 C.C.C. (3d) 71, 4 T.C.T. 6168, 12W.C.B. (2d) 195, R v. DeSousa, [1992] S.C.J.

No.77, [1992] A.C.S. no 77, [1992] 2 S.C.R. 944, [1992] 2 R.C.S. 944, 95 D.L.R. (4th)595, 142 N.R. 1, J.E. 92-1450, 56 O.A.C. 109, 76 C.C.C. (3d) 124, 15 C.R. (4th) 66, 11 C.R.R. (2d) 193, 1992 Can LII 80, 17 W.C.B. (2d) 215, R. v. 1260448 Ontario Inc. (c.o.b. William Cameron Trucking); R. v. transport Robert

(1973) Lteè (ON CA), [2003]O.J.No.4306, 68 O.R. (3d) 51, 234 D.L.R. (4th) 546, 178 O.C.A. 361, 180 C.C.C. (3d) 254, 16 C.R. (6th) 136, 112 C.R.R. (2d) 363, 46 M.V.R. (4th) 24, 59 W.C.B. (2d) 417, Blencoe v. British Columbia ( Human Rights Commission ) 2000 2 S.C.R. 307, 2000 S.C.J. No.43, 2000 SCC 44, R. v. Banks, 2007 O.J. No.99, 2007 ONCA 19, 84 O.R. (3d) 1, 275 D.L.R. (4th) 640, 220 O.A.C. 211, 216 C.C.C. (3d) 19, 44 C.R. (6th) 244, 150 C.R.R. (2d) 239, 39 M.V.R. (5th) 1, 72 W.C.B. (2d) 720, 2007 CarswellOnt 111, R. v. Nunziata 2005 O.J.

No. 5046, 2005 ONCJ 292, 78 O.R. (3d) 285, 203 C.C.C. (3d) 261, 137 C.R.R. (2d) 100, Horsefield v. Ontario ( Registrar of Motor Vehicles ) 1999 ).J. No. 967, 44 O.R. (3d) 73, 172 D.L.R. (4th) 43, 118 O.A.C. 291, 134C.C.C. (3d) 161, 62 C.R.R. (2d) 161, 42 M.V.R. (3d) 1, 42 W.C.B. (2d) 20, . Supporting material presented by the Applicant: Hansard Transcripts, Official Record for March 28, 1996, Chart of Handlebars Height Requirements of the 52 States in the U.S.A. Chart of Manufacturers Stock Motorcycle Handlebars Heights, OLR Research Report Case Law review.

The issue of vagueness was decided by Supreme Court in decision R. v.

Nova Scotia Pharmaceutical Society. “ Vagueness can be raisedas an issue pertaining to s. 7 of the Charter, since it is a principal of fundamental justice that laws may not be too vague.” The Courtstated also “The doctrine of vagueness is founded on the rule of law, particularly on the principles of fair notice to citizens and limitationof enforcement discretion”. ..” The doctrine of vagueness can be summed up in one proposition : a law will be found unconstitutionallyvague if it so lacks in precision as no to give sufficient guidance for legal debate-that is , for reaching a conclusion as to its meaning byreasoned analysis applying legal criteria.

The term “legal debate” is not used to express a new standard or one departing from thatpreviously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitationof enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding inthe operation of the law”. And: “Legal provisions by stating certain propositions outline permissible and impermissible areas, and theyalso provide some guidance to ascertain the boundaries of these areas.

They provide a framework, a guide as to how one may behave, butcertainty is only reached in instant cases, where the law is actualized by a competent authority. By setting out the boundaries ofpermissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion asto their actualization. They therefore limit enforcement discretion by introducing boundaries and they sufficiently delineate an area ofrisk to allow for substantive notice to citizens. No higher requirement as to certainty can be imposed on law in our modern State.

Themodern State intervenes today in fields where some generality in the enactment is inevitable. The substance of these enactments mustremain nonetheless intelligible. The standard of “absence of legal debate” applies to all enactments…. Once the minimal general standard

has been met, any further arguments to the precision of the enactments should be considered at the “minimal impairment” stage of s. 1analysis.” The Supreme Court engaged in detailed analysis of the issue of vagueness in paragraphs 42 to 71 including US and European decisionsrelated to First Amendment (US Constitution) and European Convention for the Protection of Human Rights and Fundamental Freedoms,213 U.N.T.S. The Supreme Court confirmed its analysis of vagueness of the law in the case Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code(Man.) It also stated : “It is important to note that the onus is the person bringing the challenge to demonstrate not only the restriction ofthe rights but also that the state has not abided by the principles of fundamental justice”. The Court also described Proportionality Test asRational Connection which means that the law is addressing the issue and that the limit should impair as little as possible.

The Courtstated: This Court has recognized , however, that courts should not substitute a judicial opinion for a legislative one in respect where todraw a precise line as to what is a reasonable limit.” (Paragraph 100) The Supreme Court also addressed issue of vagueness of the law in the case of Committee for the Commonwealth of Canada v. Canada.The Court stated that if the law in question is too vague it cannot be saved under s. 1 of the Charter. The vagueness of the law was also subject of the Supreme Court ruling in case of R. v. Zundel.

The court provided analysis of a need ofproportionality of the sanctions provided by a particular law and its goal. It also mentioned a recommendation of the Law ReformCommission of Canada to repeal a law ( s. 181 in this case ) as anachronistic. The Ontario Court of appeal I R. v. 1260448 Ontario Inc. ( c.o.b. William Cameron Trucking; R. v. Transport Robert

(1973) Lteeprovided guidelines as to link between allegation that a particular law is in contravention of s. 7 of the Charter and penalty contained insuch law. The same Court in R. v. Banks stated that even if challenged law carried possibility of imprisonment as penalty it would be constitutionalif it were passed in accordance with the principles of fundamental justice. The Court confirmed that a Hansard report was an admissibleevidence. The Court of Appeal also stated “…whether, and to what extent, the Act actually improves traffic safety is not a question forthe court” (paragraph 66 ).

The Ontario Court of Appeal of Ontario ruled in R. v. Horsefield that law interfering with a person’s right to drive was not infringing s.7 of the Charter, because s. 7 does not protect right to drive. The Supreme Court when analysing application of s. 7 of the Charter in their decision Blencoe v. British Columbia ( Human RightsCommission ) stated:”

Section 7 of the charter can extend beyond the sphere of criminal law, at least where there is state action whichdirectly engages the justice system and its administration. If a case arises in the human rights context which, on its facts, meets the usuals. 7 threshold requirements, there is no specific bar against such claim and s. 7 may engaged. In order for s. 7 to be triggered, one must first establish that the interest in respect of which the respondent asserted his claim falls withinthe ambit of s. 7.

The liberty interest protected by s. 7 is no longer restricted to mere freedom from physical restraint. “Liberty” isengaged where state compulsion or prohibition affect important and fundamental life choices. The s. 7 liberty interest protects anindividual autonomy. In our free and democratic society, individuals are entitled to make decision of fundamental importance free fromstate interference. Such personal autonomy, however, is not synonymous with unconstrained freedom. Here, the state has not preventedthe respondent from making any “fundamental personal choices”.

Therefore, the interests sought to be protected in this case do not fallwithin the “liberty” interest protected by s. 7. ( p.2 and 3). The Ontario Court of Justice in decision R. v. Bydeley provided persuasive analysis as to relation between the Canadian Bill of Rightsand the charter of Rights and Freedom. My Brother, Justice of the Peace Stinson wrote: “Mr.

Bydyley references the Canadian Bill ofRights, R.S.C. 1985 Appendix III, which was adopted by Parliament in 1960, making specific reference to sections 1 and 2 in which itrecognizes and declares the right of the individual to life and liberty and that every law of Canada shal be so construed and applied as notto abrogate, abridge or infringe any of these rights. However, the Canadian Bill of Rights was enacted simply as federal statute, not asconstitutional amendment to the British North America Act, 1867 ( now the Constitution Act, 1867 (U.K.), 30 &31 Vict.

C.3) and it wasmade applicable only to federal laws, not to provincial ones. Therefore, provincial violations of civil liberties were not covered by it. Thesupreme Court of Canada, in Provincial Secretary of P.E.I. v. Egan (SCC), [1941] S.C.R. 396, [1941] 3 D.L.R. 305,confirmed that the regulation and control of traffic on a highway, as well as the regulation and control of motor vehicles operating in aprovince, come under the heading in the section 92(13) of the British North America Act, 1867 of Property and Civil Rights in respect ofwhich the province has exclusive jurisdiction.

As well, the Canadian Bill of Rights lost much of its importance in 1982 with adoption ofthe Charter of Rights and Freedoms,

Part I of the Constitution Act 1982, being

Schedule B of the Canada Act, 1982 (U.K.) 1982 c.11.” The British Columbia Court of Appeal in R. v. Kennedy dealt with the legality of the seatbelt law. IN this case there was an attempt tohave declaration that the s.27(4) of the British Columbia Motor Vehicle Act violates s. 7 of the charter. The court after quoting fromnumber of other rulings dismissed that application and found that lawmaking use of seatbelt mandatory did not violate s. 7 of the charter. The same Court took same position in R. v. Thompson case where it ruled that obligation to wear seatbelt did not violate s. 2 (

a) of thecharter of Rights. Nova Scotia Court of Appeal decided the issue of validity of s. 157A (2) of the Motor Vehicle Act ( Nova Scotia) in context of s. 7 of theCharter . The Court stated: “ In my opinion, a person who alleges that his rights under the Charter have been breached has the burden ofestablishing that matter before the court.” ( page 4) The High Court of Justice Divisional Court Ontario ruled on s. 7 of the charter issue in the decision Manicom v.

County of Oxford et al.The Court said” While one has considerable sympathy with property owners whose use and enjoyment of their property have beendiminished by events occurring around them, the claims of the plaintiffs in this case do not, in my opinion, fall within the ambit of s.7.They are essentially claims with respect to property rights which, in my opinion, are not covered by the section. ( page 7).

The Supreme Court in case of Danson v. Ontario ( Attorney General) stated” A proper factual foundation must exist before measuring legislation against the provisions of the Charter , particularly where the effects of impugned legislation are the subject of the attack. A distinction must be drawn between two categories of facts in constitutional litigation: “adjudicative facts” and legislative facts . Adjudicative facts are those that concern the immediate parties. They are specific and must be proved by admissible evidence.

Legislative facts are those that establish the purpose and background of the legislation, including its social, economic and cultural context. Such facts are of more general nature, and are subject to less stringent admissibility requirements.( page 2). The Court of Appeal of Ontario in R. v. Marin ruled that paragraph 26: I conclude on the authorities that a strict liability offence even with the potential of imprisonment does not per se violate s. 7 of the charter, where the legislature has made it clear that proof of mens rea is not required. The Supreme Court in R. v.

DeSousa ruled that the trial judge has discretion as to the time within the trial or before to decide a constitutional motion. Ontario Court of Justice ruled in R. v. Nunziata that a different rules as how to dispose remaining election funds depending whether the candidate was independent or affiliated with a political prty was unconstitutional in respect to

section 3 but did not violate s. 15. The Court in this case, after considering evidence, supporting material , relevant law and case law provided by the parties found as follows. Issue number 1 , namely different methods of measuring the height of the handlebars: There appear to be more than one method used by law enforcement officers to measure the height of the handlebars. The

section dictated that that distance should be measured from the seat depressed by the motorcycle operator to the top of the handlebars. Section 10 (1) requires the Prosecution only to prove that the handlebars were above the maximum allowed 380 millimetre height. This ay pose some problems for the police officers then to the defence in these matters. AS much as the officers are using different methods and different points for that measurements, i.e. top of the handlebars, horn of seat , it will be verified by the Court in each case whether the Prosecution can prove their cases beyond reasonable doubt.

The actual distance, if close to 380 millimetres may be more difficult to be proven. This will be more of the additional burden of proof to the prosecution then raised difficulties to the defendants to challenge such allegations. Issue number 2, namely vagueness of the section 10 (1). There are numerous authorities stating that any criminal or, in this case, quasi criminal law should provide clear indication to the citizens what is permitted and what is not. This “notice” should allow each member of society to decide how to behave to follow the law and not to attract penalties.

This concept is included in fundamental law. If the challenged law is too vague it would not pass the scrutiny of the courts. If here is an issue with vagueness, then the Court will examine that law in context of

section 1 of the Charter . The party who challenges the constitutional validity of the law carries the burden to prove such vagueness. The

section provides clear distance which has to be complied with: 380 millimetres. There may be some different methods of measuring that distance, points from which the measurements are taken in these matters, but there cannot be any vagueness about what is permitted and what is not. The defence went to extend of verifying the heights of handlebars on number of motorcycles and did not seem to have much of problems in ascertaining that some of them were not in compliance with that section. Since I am finding that s. 10(1) is not vague there is no need to analyse that

section in context of section1 of the Charter . Issue number 4 is the question if section 10(1) is anachronistic. The evidence provided shows that the law has been in effect since October 1,1967, effectively unchanged except adding motor assisted bicycles in 1975 for changing inches ( 15 ) to millimetres ( 380 ) in 1978. There was the evidence provided by the way of transcripts of the debate in the Legislature , dated March 28, 1996 where number of Honourable Members questioned, quite eloguently the need to keep this law in effect.

There reference made to “chopper style motorcycles, to Honda Gold Wing ones and to some Motorcycle Associations contacting them to repeal this law. The Legislature, however, did repeal this

section and it is still in effect. The reasons for implementing this

section were described by Mr. Turner, the only one expert witness as matter of public safety policy. Mr. Turner provided explanation that there is ongoing concern with the obstruction of the field of vision of the operator of a motorcycle equipped with handlebars raised above 380 millimetres. Mr. Turner added that in emergency situation the operation riding his or her motorcycle with raised handlebars has much limited power to absorb any impact if his or her hands are too much raised. Mr.

Weber testified, based on his experience police motorcycle operator and recreational motorcyclist, the raised handlebars are preventing the motorcycle operator to have full control of the vehicle in executing sharp turns. The problems as described by the above evidence are not time related. They are, possibly, existing today as they were believed to exist some 40 years ago. The passage of time did not change the perception of how the motorcycle might behave in emergency situation or how the height of the motorcycle handlebars can have an effect on ability of the rider to control the machine.

The defence presented the court with number of exhibits showing that where is a number of motorcycles of various makes and models, which are offered for sale with handlebars height exceeding 380 millimetres; I do not question that evidence. I, however, do not find it helpful in deciding in this case. The argument based on that observation would be similar to one claiming in speeding charge case: just following traffic”. Noncompliance with the law by others does not render the law anachronistic This causes me to rule that the argument that s. 10(1) is anachronistic must fail.

Issue number 4 is that the societal interest in this law is so minimal that a violation of the defendant rights under

section 7 , 9 and 26 of the Charter cannot be saved under s. 1 provisions.

I have found that there was no violation of the defendant right under the Charter of Right cited above, therefore I do not need to address that issue. The argument that number of other jurisdictions in North America, do not have any restrictions on handlebars heights or have them set I differently must fail. Since 1941 The Supreme Court confirmed exclusive jurisdiction of the Provinces over matters pertaining to traffic of Motor Vehicles and Regulating Motor Vehicles. This ruling, Provincial Secretary of P.E.I. v. Egan as quoted in R.

Bydyley case directly assumes that each province will have right to regulate these issues as it sees the best. Some States in the USA do not require motorcycle helmets, some do. It depends on what was believed in making safety policy the best approach in particular jurisdiction. Similarly, with respect to heights of the handlebars, the Province of Ontario has chosen to put the limit at 380 millimetres.

The Supreme Court said in Reference re ss. 193 and 195.1(1)c of the Criminal Code (Man.) “courts should not substitute a judicial opinion for a legislative one in respect to here to draw a precise line as to what is a reasonable limit”. To add to above, the Courts established other limitations on application of .7. The rights confirmed by that

section must apply to fundamental choices. The Court in Horsefefield stated that law interfering with a person’s right to drive was not infringing s.7 of the Charter , because that

section does not protect right to drive. I am not convinced that the decision to ride a motorcycle with higher handlebars is a fundamental choice. It is definitely choice and preference of some riders but such choice does not enjoy protection of

section 7. The Defence raised issue based on

section 9 of the charter. The

section reads: Everyone has the right not to be arbitrarily detained or imprisoned. The choice of riding a motor vehicle is a privilege not a right. In order to obtain Driver’s Licence a person has to go through examination process. Such person has to inform themselves about the law and regulations related to and controlling the traffic of motor vehicles and the requirements of the motor vehicles to be permitted to operate a motor vehicle.

The Highway Traffic Act provides powers of a police office to conduct a traffic stop ( s. 216 of the Highway Traffic Act) Anyone who applies for the driver’s licence should know that and agreed to that scheme. Anyone who does not want to be subject to that obligation can simply refrain from becoming a licensed driver. Traffic stop by itself is, in most cases an inconvenience, but to equal a traffic stop to infringement of s. 9 right would be simply not right. The defence also mentions s. 26 of the Charter . This

section reads as follows: The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any rights of freedoms that exist in Canada. This brings me to analysis if the Canadian Bill of Rights is applicable to the case at bar. I will follow line of reasoning as presented by my Brother, Justice of the Stinson in Bydyley . The answer is no. The Canadian Bill of Rights as one of the Federal Statues would not be applicable to provincial laws.

The Charter, which is incorporated in Canadian Constitution ( British North America Act 1867 ) is the governing law for the whole Canadian system of laws, regardless of which level of jurisdiction the law comes from. It is worth to note that Court in this case was not presented with any statistical data which would solve the question if the higher than allowed handlebars in fact constitute additional risk to riding a motorcycle.

One could expect, that as with, let’s say, use of cell phone during driving, there will be now a sufficient data to prove or disprove theory that high handlebars are indeed adding to that risk. I my opinion everyone has the right to question validity of a law. One of the forum to do so, are courts. There is nothing inappropriate with a member of our society to seek judicial verification whether their constitutional rights are violated by any law, regulation, or bylaw. In my opinion it is one of indication that we are living in a free and democratic society and, I might add, a precious one.

The Defence asked the Court to rule as follows: To find that the section 10(1) of the Regulation 596 violates sections 7 , 9 , and 26 of the Charter rights; That such violation cannot be saved under s. 1 of the Charter ; The remedy sought is to stay proceedings and declare that s. 10(1) is of no force and effect under remedies in s. 24 of the Charter . The decision of this Court is as follows: I am not finding s. 10(1) violates any of the quoted

section of the Charter of Rights and Freedoms; Not finding any violation of the charter there is no need to address section 10(1) in context of

section 12 of the Charter ; Not finding any violation of the Charter any remedies under

section 24 are not available to the Defence. Motion to find section 10(1) of the Regulation 596 is therefore denied. The evidence presented by the Prosecution, as described above presented this Court with the prima facie case. The measured heights of the handlebars of the Defendant’s motorcycle was according to Cst. Weber measurements 870 millimetres, way exceeding allowed 380 millimetres. Even , if different point of measuring on the handlebars were used, these handlebars were above that limit. The lower point of measuring the distance in question as described by Cst.

Weber was actually beneficial to the defence in that that the horn of the motorcycle seat would be higher than pressed portion of the seat. The case was conceded by the defence. There was no evidence to

contradict Officer Weber’s evidence. I am satisfied with the Prosecutor’s case beyond reasonable doubt. There is finding of guilt. Conviction registered. Can I ask for submission with respect to the penalty? Thank you both for the interesting materials and your very valuable help in this case.