Her Majesty the Queen v. Hayes [Indexed as: R. v. Hayes]
65 O.R. (3d) 787
[2003] O.J. No. 2795
Docket No. C36130
Court of Appeal for Ontario
McMurtry C.J.O., Weiler and Laskin JJ.A.
July 10, 2003
*Application for an extension of time granted and application for leave to appeal to the Supreme Court of Canada dismissed without costs January 22, 2004 (Bastarache, LeBel and Deschamps JJ.).
Criminal law -- Obstructing peace officer -- Accused motorcyclist stopped at roadside check and asked to remove helmet for inspection -- Accused charged with obstructing peace officer after refusing to remove helmet -- Highway Traffic Act providing general authority to examine vehicles for compliance with safety standards applying at roadside examinations and imposing duty on motorcyclists to remove helmets for inspection -- Accused liable to fine if failing or refusing to do so after receiving written notice to submit equipment for inspection -- Accused might have been guilty of obstructing peace officer if interfering with efforts to remove helmet after receiving written notice but officer did not use this mechanism within Highway Traffic Act -- Police officer not entitled to charge accused with more serious offence of obstructing peace officer or to use Criminal Code arrest powers until attempting to use Highway Traffic Act enforcement provisions -- Appeal allowed and acquittal entered -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 82.
The accused motorcyclist was stopped by a police officer at a roadcheck and was asked to remove his helmet for inspection. He refused to do so, and the officer warned him that he would be charged with obstructing a peace officer if he did not comply. He persisted in his refusal, and was arrested and charged with obstructing a peace officer. Upon inspection, the helmet was found to comply with safety requirements. At trial, the accused was acquitted on the ground that a helmet was not "equipment" subject to inspection under the Highway Traffic Act. The acquittal was set aside on appeal and a conviction was entered. The summary conviction appeal court judge held that a helmet constitutes equipment that is subject to inspection as part of the police power to stop vehicles under s. 216 of the Highway Traffic Act. The accused appealed.
Held, the appeal should be allowed.
Section 216 of the Highway Traffic Act does not empower the police to inspect motorcycle helmets. However, s. 82 of the Highway Traffic Act provides police officers with the general authority to examine vehicles for compliance with safety requirements, and it applies to roadside examinations. Section 82(1) empowers the police officer to "require" the driver to "submit" the vehicle or its equipment for examination. The obligatory language of the provision imposes a duty on motorcyclists to remove their helmets and provide them to police officers for inspection, so long as the request is for the purpose of carrying out the provisions of the Act. It is true that an officer can only charge an individual for failing to submit a vehicle or equipment to inspection under s. 82(3) of the Act after that individual has been provided with written notice pursuant to s. 82(4) and then has failed to submit his or her vehicle and its equipment to inspection. However, the failure to give notice does not nullify a driver's plain duty under s. 82(1). A motorcycle helmet falls squarely within the meaning of "equipment" in s. 82. The accused had an obligation to remove his helmet and hand it over to the police officer for examination.
Section 82(3) of the Highway Traffic Act addresses precisely the same misconduct that formed the basis of the charge of obstructing a peace officer: the refusal to submit the helmet for inspection. Under s. 82(3), a person who fails or refuses to submit his or her vehicle and its equipment to an inspection is subject to a fine of not more than $1,000. The legislature defined the enforcement mechanism for failing to submit for inspection as a fine under the Act. The officer did not even attempt to use this enforcement mechanism, which would have required him to give the accused a written notice for inspection. Thus, the accused did not obstruct the officer in the performance of his duty. If the accused had interfered with the officer's attempt to issue a written notice, the offence of obstructing a peace officer could have been made out. However, since the officer did not attempt to enforce his power to inspect the helmet under s. 82(3) by issuing a written notice as required by s. 82(4), he was not entitled to invoke the far more serious offence of obstructing a peace officer or the Criminal Code, R.S.C. 1985, c. C-46, arrest powers.
APPEAL from a judgment of the summary conviction appeal court allowing the Crown appeal from an acquittal on a charge of obstructing a peace officer.
R. v. Sharma, 1993 165 (SCC), [1993] 1 S.C.R. 650, 100 D.L.R. (4th) 167, 149 N.R. 169, 79 C.C.C. (3d) 142, 19 C.R. (4th) 329, 14 M.P.L.R. (2d) 35, apld Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223, 167 D.L.R. (4th) 672, 59 C.R.R. (2d) 5, 131 C.C.C. (3d) 1, 39 M.V.R. (3d) 133, 21 C.R. (5th) 1 (C.A.), affg (1996), 1996 8112 (ON SC), 134 D.L.R. (4th) 177, 36 C.R.R. (2d) D-6, 106 C.C.C. (3d) 302, 19 M.V.R. (3d) 207 (Ont. Gen. Div.), supp. reasons (1996), 134 D.L.R. (4th) 177 at 221, 106 C.C.C. (3d) 302 at 346 (Ont. Gen. Div.), [Leave to appeal to S.C.C. allowed (1999), 252 N.R.198n], consd Other cases referred to Dedman v. R., 1985 41 (SCC), [1985] 2 S.C.R. 2, 51 O.R. (2d) 703n, 11 O.A.C. 241, 20 D.L.R. (4th) 321, 60 N.R. 34, 20 C.C.C. (3d) 97, 46 C.R. (3d) 193, 34 M.V.R. 1; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, 73 O.R. (2d) 736n, 40 O.A.C. 1, 108 N.R. 171, 48 C.R.R. 112, 56 C.C.C. (3d) 22, 77 C.R. (3d) 110, 21 M.V.R. (2d) 165; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, 5 Alta. L.R. (3d) 232, 144 N.R. 50, [1993] 1 W.W.R. 193, 12 C.R.R. (2d) 65, 76 C.C.C. (3d) 481, 16 C.R. (4th) 273, 40 M.V.R. (2d) 204; R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164, [1963] 3 W.L.R. 946, 128 J.P. 48, 107 Sol. Jo. 833, 48 Cr. App. Rep. 42 (C.C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 129 Highway Traffic Act, R.S.O. 1980, c. 198, s. 19 Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 33, 82, 82.1, 104, 216 Provincial Offences Act, R.S.O. 1990, c. P.33 Rules and regulations referred to Safety Helmets, R.R.O. 1990, Reg. 610
Alan D. Gold, for appellant. Scott C. Hutchison, for respondent.
The judgment of the court was delivered by
MCMURTRY C.J.O.:--
Overview
[1] This is an appeal from the summary conviction appeal allowed by Ferguson J. in which he set aside the appellant's acquittal and found him guilty of wilfully obstructing a peace officer.
[2] The appellant was riding his motorcycle when he was stopped at a police roadcheck and asked to remove his helmet and submit it for inspection. He refused to take off his helmet, and the officer warned him that he would be charged with obstructing a peace officer if he did not comply. He persisted in his refusal to remove his helmet, and was arrested and charged with obstruct peace officer. His helmet was removed without incident. Upon inspection, the helmet was found to comply with all applicable safety requirements.
[3] At trial, he was acquitted of the charge on the ground that the trial judge was not convinced that a helmet was "equipment" subject to inspection under the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
[4] The Crown appealed, and the summary conviction appeal court judge set aside the acquittal and entered a verdict of guilty. He found that a helmet constitutes equipment that is subject to inspection as part of the police power to stop vehicles under s. 216 [of the] HTA. He concluded that the appellant obstructed the officer when he refused to remove his helmet for inspection.
The Facts
[5] On July 9, 1999, the appellant was riding his motorcycle on Regional Road 57 in the Township of Caesarea, when he was stopped at a police roadcheck. The police were operating the roadcheck to target members of a motorcycle gang, the Para-Dice Riders, who were holding their annual summer gathering in the area.
[6] One purpose of the stop, among others, was to ensure highway safety by checking for compliance with highway traffic legislation. One of the reasons the appellant was stopped was because his motorcycle was loud and could be heard from half a kilometre away.
[7] The appellant stopped as directed. The police examined his motorcycle, and in particular inspected his mufflers to determine whether they contained noise baffles. The officers also asked him to remove his helmet so that they could inspect it. The appellant repeatedly refused this request.
[8] Police Constable Lessard, a detective constable coordinating the officers at the roadcheck, was called over to deal with the appellant. According to P.C. Lessard, the appellant's helmet did not appear very safe. There was scaling or chips on the back and the chinstrap appeared weathered. Police Constable Lessard requested that the appellant remove his helmet so that he could inspect it and determine whether there was a safety sticker on the inside. Safety stickers, which signify compliance with the standards of certain designated safety organizations, can be found on either the inside or the outside of motorcycle helmets. The appellant's helmet did not have a sticker on the outside.
[9] As stated above, despite repeated requests, the appellant refused to remove his helmet. Police Constable Lessard cautioned him that he would be charged with obstruct police if he did not comply, but he persisted in his refusal. Police Constable Lessard finally arrested the appellant and charged him with wilfully obstructing a peace officer. Upon arrest, the appellant's helmet was removed without incident. There was a safety sticker affixed on the inside, and no charges were laid with respect to the safety of the helmet.
[10] The appellant testified that he refused to remove his helmet because he believed he had no obligation to do so. His belief was not based on any legal advice or advice from the police, but on information he had received from the vice-president of the Ontario Federation of Bikers and on his own review of the HTA.
Issues
[11] The appellant raises three main issues on appeal:
Was the appellant obligated to turn over his helmet for inspection under s. 216 [of the] HTA?
Was the appellant obligated to turn over his helmet for inspection under s. 82(1) [of the] HTA?
Can the appellant's refusal to turn over his helmet for inspection form the grounds for the Criminal Code, R.S.C. 1985, c. C-46, offence of Obstruct Peace Officer?
Analysis
[12] It will be helpful at the outset to set out the relevant provisions of the Criminal Code and the Highway Traffic Act.
[13] The appellant was charged with wilfully obstructing P.C. Lessard in the execution of his duty by "refusing to provide his motorcycle helmet for inspection upon request contrary to the Criminal Code". The offence of obstruct police is set out in s. 129(a) of the Code:
- Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty . . . ,
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
[14] Section 216 of the HTA provides police officers with the authority to stop motor vehicles in the lawful execution of their duties. At the time of the incident, s. 216 provided [Note 1]:
216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $5000 or to imprisonment for a term of not more than six months, or to both.
[15] Section 104 of the HTA requires motorcyclists to wear a helmet that complies with the regulations:
104(1) No person shall ride on or operate a motorcycle or motor assisted bicycle on a highway unless the person is wearing a helmet that complies with the regulations and the chin strap of the helmet is securely fastened under the chin.
[16] The applicable regulation is Safety Helmets, R.R.O. 1990, Reg. 610, which states, inter alia:
- A helmet worn by a person,
(a) riding on or operating a motorcycle;
on a highway shall,
(c) have a hard, smooth outer shell lined with protective padding material or fitted with other energy absorbing material and shall be strongly attached to a strap designed to be fastened under the chin of the wearer; and
(d) be undamaged from use or misuse.
- The helmet referred to in section 1 must conform to the requirements of . . . ,
[one of four enumerated safety organizations, and bear the monogram, certificate or symbol of that organization].
[17] There is no penalty provision specifically associated with s. 104 of the HTA. The failure to wear a helmet that complies with the Safety Helmets regulation is therefore subject to the general penalty provision under s. 214 of the HTA:
214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.
[18] Section 82 [of the] HTA provides the police with the authority to examine vehicles and equipment for the purposes of the Act, to remove vehicles from the road and to charge an individual for failing to submit their vehicle or equipment for inspection:
82(1) Every police officer and every officer appointed for the purposes of carrying out the provisions of the Act may require the driver or owner of any motor vehicle or motor assisted bicycle to submit the motor vehicle or motor assisted bicycle, together with its equipment and any trailer attached thereto, to the examinations and tests that the police officer or officer may consider expedient.
(2) Where any such vehicle, equipment or trailer is found to be in a dangerous or unsafe condition, the police officer or officer making the examination or tests may require the driver or owner of the vehicle to proceed to have the vehicle, equipment or trailer placed in a safe condition and may order the vehicle or trailer to be removed from the highway and may prohibit the operation of the vehicle or trailer on the highway until the vehicle, equipment or trailer has been placed in a safe condition.
(3) Every person who refuses or fails to comply with a requirement made under subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $1,000.
(4) Subsection (3) does not apply unless the police officer or officer has given to the person a written notice in the prescribed form requiring the person to submit the motor vehicle or motor assisted bicycle, together with its equipment and any trailer attached thereto, to examination and tests.
Issue 1: [s. 216](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec216_smooth) of the [HTA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)
[19] On its face, s. 216 of the HTA empowers police to stop vehicles. However, the Crown argues that this provision has been interpreted to include the power to "examine equipment for compliance with safety standards", including motorcycle helmets. The Crown relies on the decision of this court in Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223, 131 C.C.C. (3d) 1 (C.A.). The summary conviction appeal court judge considered Brown and reached the same conclusion. With respect, for the reasons that follow, I do not agree that Brown stands for this proposition, or that a police officer's authority to inspect motorcycle helmets can be found under s. 216 alone.
[20] The facts in Brown are similar in many respects to the facts in this appeal. Brown also involved a police roadcheck targeting individuals attending the Para-Dice Riders summer gathering. Several members of the gang sued the police force for damages for breach of their right to be free from arbitrary detention under the Canadian Charter of Rights and Freedoms. The police in Brown had several reasons for making the stops including highway safety concerns, maintenance of the public peace, investigation of other criminal activities and intelligence gathering. The court found that while the plaintiffs were detained, the stops were authorized under s. 216 of the HTA for the purposes of highway regulation and safety. The court also found that the police were entitled to use the opportunity presented by the stop to pursue other lawful inquiries. In the instant appeal, the appellants do not challenge the propriety of the initial stop under s. 216.
[21] In Brown, the central issue was the constitutionality of the detentions. While the police in Brown did inspect vehicles and helmets, the authority to perform those inspections and any corresponding duty on the part of the drivers to comply with those inspections were not specifically in issue. Nonetheless, the Crown argues that Brown establishes that the inspections are authorized under s. 216, relying on the following passage, at p. 234 O.R., p. 13 C.C.C. of Doherty J.A.'s reasons:
The detention authorized by s. 216(1) of the HTA is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention. The police may require production of the documents which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention: R. v. Ladouceur, supra, at pp. 1286-87; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615 at pp. 623-24, 76 C.C.C. (3d) 481; R. v. E. (G.A.) (1992), 1992 12820 (ON CA), 77 C.C.C. (3d) 60 (Ont. C.A.). More intrusive examinations or inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1) of the HTA: R. v. Mellenthin, supra.
[22] The Crown also relies on a passage from Doherty J.A.'s recitation of the facts of the case, at p. 8, in which he refers to the officers checking "equipment such as helmets for mechanical fitness and compliance with applicable safety standards."
[23] In my view, Doherty J.A.'s comments regarding specific police powers upon stopping a motorist under s. 216 must be read in their proper context. In this passage, Doherty J.A. was describing the limited scope of the authorization to detain a motorist under s. 216. In providing examples of legitimate police activities in the course of a detention under s. 216, his reasons should not be taken as suggesting that s. 216 also specifically authorizes these various particular activities. For example, the authority to demand that a driver produce his licence for inspection is found under s. 33 of the HTA and the constitutionality of a random stop for the purpose of checking a licence under s. 33, then s. 19 of the HTA [R.S.O. 1980, c. 198], was established in R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, 48 C.R.R. 112.
[24] That said, the police do not require specific statutory authority for all of their conduct during the course of a s. 216 detention. The police may exercise ancillary powers incidental to the stop and the execution of their duty throughout the detention. In R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, 76 C.C.C. (3d) 481, at p. 623 S.C.R., p. 487 C.C.C. for example, the court held that a visual inspection of a vehicle during a stop is essential for the protection of officers on duty at the roadcheck, and that when the stop occurs at night, the scope of the permissible search includes looking inside the vehicle with a flashlight.
[25] The Crown argues that police also have the power to require motorcyclists to remove their helmets at common law, ancillary to their statutory duty to enforce the helmet safety provisions of the HTA. The test for determining whether police have common law authority for a particular course of action under the ancillary powers doctrine was set out by the English Court of Appeal in R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164 (C.C.A.). Under the Waterfield test, the court must first determine whether the conduct falls within the general scope of any duty imposed by statute or recognized at common law and, then, once it is determined the conduct is within the scope of the duty, whether it involved an unjustifiable use of powers associated with that duty.
[26] In Dedman v. R., 1985 41 (SCC), [1985] 2 S.C.R. 2, 20 C.C.C. (3d) 97, a case concerning random vehicle stops as part of a R.I.D.E. program, the Supreme Court of Canada applied the Waterfield test. In his reasons, Le Dain J. clarified the meaning of "unjustifiable use of powers" under the second part of the Waterfield test, at p. 35 S.C.R., p. 122 C.C.C., stating:
The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.
[27] The Crown argues that the police must have the ancillary power to demand that motorcyclists remove their helmets for inspection, as this is the only manner in which the helmet provisions of the HTA can be enforced. I agree that without the ability to look inside helmets, the police will not be able to enforce the safety helmet provisions effectively. They would not be able to check some helmets for safety stickers, or examine their protective padding. However, I do not agree that this authority should be found under the ancillary powers doctrine. As I will set out below, it is my view that s. 82 of the HTA provides the police with the statutory authority to examine helmets, and imposes a duty on motorcyclists to remove their helmets and submit them for examination. In light of the specific statutory authority in the HTA to inspect equipment, including helmets, it is neither necessary nor appropriate to look to ancillary powers.
Issue 2: [s. 82](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec82_smooth) of the [HTA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)
[28] In my view, s. 82 of the HTA provides police officers with the general authority to examine vehicles for compliance with safety requirements, and it applies to roadside examinations.
[29] For ease of reference, I set out s. 82 again:
82(1) Every police officer and every officer appointed for the purpose of carrying out the provisions of this Act may require the driver or owner of any motor vehicle or motor assisted bicycle to submit the motor vehicle or motor assisted bicycle, together with its equipment and any trailer attached thereto, to the examinations and tests that the police officer or officer may consider expedient.
(2) Where any such vehicle, equipment or trailer is found to be in a dangerous or unsafe condition, the police officer or officer making the examination or tests may require the driver or owner of the vehicle to proceed to have the vehicle, equipment or trailer placed in a safe condition and may order the vehicle or trailer to be removed from the highway and may prohibit the operation of the vehicle or trailer on the highway until the vehicle, equipment or trailer has been placed in a safe condition.
(3) Every person who refuses or fails to comply with a requirement made under subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $1,000.
(4) Subsection (3) does not apply unless the police officer or officer has given to the person a written notice in the prescribed form requiring the person to submit the motor vehicle or motor assisted bicycle, together with its equipment and any trailer attached thereto, to examination and tests.
[30] The summary conviction appeal court judge found that s. 82 is only applicable when the police officer wishes to conduct examinations or tests which would not be possible within the "brief" stop and assessment permitted under s. 216. I agree that s. 82 clearly addresses the circumstance where an officer is not able to conduct an adequate examination at the roadside, either because of the impracticality of such an examination or because of the officer's limited expertise. In such circumstances, the officer will provide the driver with written notice in the prescribed form pursuant to s. 82(4), which will set out an alternate time and place for the inspection.
[31] However, I do not agree that s. 82 is limited to this circumstance. First, the plain language of s. 82(1) clearly contemplates that the officer requiring the driver to submit his vehicle or equipment to examinations, is also empowered to conduct the examination. There is no requirement that the examination be performed at some other time or place, although that option is available.
[32] Further, s. 82(1) must be read together with s. 82(2). Section 82(2) authorizes police officers to require drivers to remedy safety deficiencies in their vehicles or equipment, and to remove unsafe vehicles from the road. Together, s. 82(1) and (2) authorize an officer to inspect a vehicle and its equipment, and if either is found to be unsafe, the officer can have the problem fixed or remove the vehicle from the road. In many cases, an officer will be able to inspect a vehicle and/or its equipment at the roadside. For example, where a trailer is not properly attached, the officer may require it to be properly fastened before permitting the driver to proceed. If the trailer cannot be properly attached because of some defect, the officer can remove it from the road.
[33] The appellant argues that he was not required to submit his helmet for inspection under s. 82 of the HTA for two different reasons. First, he argues that there is no duty to comply with a police demand under s. 82(1) until notice had been given pursuant to s. 82(4); and, second, that a helmet is not "equipment" within the meaning of s. 82. For the reasons that follow, I do not agree with either of these assertions.
[34] Section 82(1) empowers the police officer to "require" the driver to "submit" the vehicle or its equipment for examination. The provision does not merely authorize the officer to act, it imposes an obligation on drivers to submit the vehicle and its equipment to examination. In my view, the obligatory language of the provision, which requires drivers to participate in the examination to the extent of "submitting" their equipment to inspection [Note 2], imposes a duty on motorcyclists to remove their helmets and provide them to police officers for examination, so long as the request is for the purpose of carrying out the provisions of the Act.
[35] It is true that an officer can only charge an individual for failing to submit a vehicle or equipment to inspection under s. 82(3), after that individual has been provided with written notice pursuant to s. 82(4) and then failed to submit his vehicle and its equipment to inspection. However, the failure to give notice does not nullify a driver's plain duty under s. 82(1). That being said, the existence of a penalty provision for failure to submit to inspection is relevant to the question of whether the police were entitled to arrest and charge the accused with obstruct police. This will be addressed below.
[36] With respect to the appellant's second argument, it is my view that a motorcycle helmet falls squarely within the meaning of "equipment" under s. 82. Section 104 of the HTA, which requires motorcyclists to wear helmets, is found under Part VI of the Act, which is entitled "Equipment". The New Shorter Oxford English Dictionary, (Oxford: Clarendon Press, 1993) defines "equipment" as "things used in equipping; articles used or required for a particular purpose; apparatus". Under the HTA, an approved helmet is "required" for the "particular purpose" of operating a motorcycle on a highway. In this respect, a helmet is no different than a horn or muffler.
[37] Thus, I conclude that the appellant had an obligation to remove his helmet and turn it over to P.C. Lessard so that he could examine it under s. 82(1) of the HTA.
Issue 3: Obstruct Peace Officer
[38] Having determined that the officer was authorized under s. 82(1) to inspect the appellant's helmet, and that the appellant was required to comply with this inspection by removing his helmet, the key question becomes whether the appellant can be convicted for obstruct police for refusing to comply with the officer's lawful demand.
[39] The intersection between police powers in enforcing provincial offences and the Criminal Code offence of obstruct police was addressed by the Supreme Court of Canada in R. v. Sharma (1993), 1993 165 (SCC), 79 C.C.C. (3d) 142, 100 D.L.R. (4th) 167.
[40] In Sharma, a street vendor was exposing goods on the sidewalk without a licence, in contravention of a municipal by-law. A police officer issued the vendor a provincial offences ticket, as authorized under the by-law and the Provincial Offences Act, R.S.O. 1990, c. P.33, and instructed the vendor to move on. The vendor refused to do so and was ultimately charged with obstruct peace officer. The court overturned the conviction on the grounds that the by-law was ultra vires. However, the court also found that even if the by-law were valid, the accused could not be convicted of obstruct police (at pp. 157-58 C.C.C.):
In my view, Arbour J.A. was correct in holding that, even if s. 11 of Metro By-law 211-74 were valid, the police cannot circumvent the lack of an arrest power for a violation of the by-law by ordering someone to desist from the violation and then charging them with obstruction. The power to arrest in order to enforce the by-law cannot be inferred in the face of clear language in the Municipal Act and the Provincial Offences Act setting out more moderate means of dealing with repeated infractions . . . . The police constable in this case indeed had an obligation to enforce the by-law. The legislature defined the enforcement power as ticketing the offender, and the appellant did not obstruct the constable in the performance of this duty. The power of arrest cannot be derived as a matter of common law from the officer's duty to enforce the by-law given the legislature's definition of what such enforcement entails.
(Emphasis added)
[41] The Crown argues that Sharma should be distinguished since, unlike the instant appeal, the officer in Sharma was not frustrated in the performance of his duty. The officer in Sharma was empowered to ticket the individual for displaying wares in contravention of the by-law, and was not prevented from exercising that power. He issued a ticket. In contrast, the appellant did frustrate P.C. Lessard in exercising his power to inspect the appellant's helmet.
[42] In my view, Sharma cannot be distinguished in this manner. The problem with the Crown's argument is that it overlooks the fact that s. 82(3) addresses precisely the same misconduct that forms the basis of the charge of obstruct police: the refusal to submit the helmet for inspection. Under s. 82(3), a person who fails or refuses to submit their vehicle and its equipment to an inspection is subject to a fine of not more than $1,000. In other words, the legislature defined the enforcement mechanism for failing to submit for inspection as a fine under the HTA. The officer did not even attempt to use this enforcement mechanism, as he was empowered to do, which would have required him to give the appellant a written notice for an inspection (s. 82(4)). Thus, the appellant did not obstruct the police in the performance of his duty. If the appellant had interfered with the officer's attempt to issue written notice for a vehicle inspection, the offence of obstruct police could have been made out. However, since the officer did not attempt to enforce his power to inspect the helmet under s. 82(3) by issuing the written notice as required by s. 82(4), as in Sharma, he was not entitled to invoke the far more serious offence of obstruct police or the Criminal Code arrest powers.
Conclusion
[43] I would allow the appeal, set aside the conviction, and enter an acquittal.
Appeal allowed.
Notes
Note 1: Section 216 was amended by S.O. 1999, c. 13, s.1, to provide for, inter alia, increased penalties under s. 216(2).
Note 2: Under s. 82.1 the driver or any person in charge of a commercial motor vehicle has a statutory duty to assist the officer in his or her inspection of the vehicle. Amendments to s. 82 [of the] HTA are set out in S.O. 1999, c. 12., Sched. R., s. 14, and proclaimed to come into force on July 1, 2003. Under the proposed s. 82(8), drivers of non-commercial vehicles will also be required to assist officers in carrying out examinations and tests of the vehicle and of its equipment.