COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Rosenberg and Goudge JJ.A.
BETWEEN
Her Majesty the Queen (as represented by the Ministry of Transportation)
Appellant
and
Quality Carriers Inc. and Randy Banning
Respondents
Patrick Moore, for the appellant
David Crocker and Liliane Gingras, for the respondents
Heard: February 23, 2009
On appeal from the order of Justice G. A. Pockele of the Ontario Court of Justice dated June 19, 2008.
Overview
1The respondents were charged with violating s. 84(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. That section prohibits driving or operating a vehicle in such a dangerous or unsafe condition as to endanger any person. Section 84(1.1) provides that if a commercial motor vehicle has a critical defect “as prescribed by regulation” it is deemed to be in such a dangerous or unsafe condition as to endanger any person.
2At trial the respondents’ commercial motor vehicle was shown to have defects which are designated by regulation as “a critical defect for the purposes of s. 82.1 of the Act.” There is no counterpart regulation designating the defects in the respondent’s vehicle as critical defects for the purposes of s. 82 of the Act. There was no other evidence that the respondent’s vehicle was in such a dangerous or unsafe condition as to endanger any person.
3The respondents were acquitted at trial because the trial judge concluded that the regulation defining critical defects for the purposes of s. 82.1 means what it says, and does not apply to s. 84 of the Act. That decision was upheld on appeal. With leave, the Crown appeals to this court. For the reasons that follow, I would dismiss the appeal.
Legislative Framework
4The section of the Act under which the respondents were charged has been in the legislation for a number of years and reads as follows:
- (1) No person shall drive or operate or permit the driving or operation upon a highway of a vehicle, a street car or vehicles that in combination are in such a dangerous or unsafe condition as to endanger any person. [Emphasis added.]
5Section 82 has also been in the Act for a number of years and deals with vehicles found to be “in a dangerous or unsafe condition”. Sections 82(2) and (5) permit a police officer or other officer to order a vehicle found to be in a dangerous or unsafe condition removed from the highway and not operated until placed in a safe condition.
6On February 2, 1998, a new regime for impounding critically defective commercial vehicles came into force through the addition to the Act of s. 82.1. Section 82.1(6) says this:
If the police officer or officer appointed for carrying out the provisions of this Act finds that the commercial motor vehicle or trailer has one or more critical defect, the vehicle shall be deemed to have been found to be in dangerous or unsafe condition under section 82, but instead of exercising the powers set out in subsections 82(2) and (5), he or she shall forthwith,
(a) notify the Registrar of the findings or cause the Registrar to be notified;
(b) seize the number plates of the vehicle that has the critical defect or defects and remove its vehicle inspection sticker or comparable device issued by another jurisdiction; and
(c) detain the vehicle that has the critical defect or defects until the Registrar issues an order under subsection (7). [Emphasis added.]
7Section 82.1(37) provides the following power to make regulations:
The Lieutenant Governor in Council may make regulations,
(a) prescribing what constitutes a critical defect;
8On the same date, February 2, 1998, O. Reg. 512/97 came into force. It is entitled “Suspension and Impoundment of Commercial Motor Vehicles for Critical Defects Under s. 82.1 of The Act”. Section 7(2) of that regulation defines the kinds of defects in a brake system that constitute a critical defect for the purposes of s. 82.1. In part, it says:
A commercial motor vehicle or trailer, if the trailer is required by subsection 64(5) of the Act to have brakes, equipped with an air brake system other than an air-over-hydraulic brake system has a critical defect for the purposes of section 82.1 of the Act if one or more of the following defects is present on more than 50 per cent of the wheel brakes of the vehicle.
- The push rod travel out of the service brake chamber is ¼ inch (6.3 mm) or more beyond the measurement listed in Column 2 of Schedule 1 for the type of chamber listed in Column 1 of Schedule 1 if the brake is cam or disc type. [Emphasis added.]
9Effective the same day, February 2, 1998, s. 84(1.1) was added to s. 84, the offence section set out above. It reads:
If a commercial motor vehicle or trailer has one or more critical defect, as prescribed by regulation, it shall be deemed to be in such a dangerous or unsafe condition as to endanger any person. [Emphasis added.]
Facts and Procedural History
10The facts on which the prosecution was based are not in dispute. On July 20, 2006, the respondent Randy Banning was operating a tractor and two-axle trailer owned by the respondent Quality Carriers Inc. on Highway 401 near London, Ontario. There is no doubt that this is a commercial motor vehicle for the purposes of the Act. Pursuant to instructions, Mr. Banning pulled the vehicle into a weigh station where it was inspected by a Ministry of Transportation officer. The officer found that, for all four brakes on the trailer, the push rod travel out of the service brake chamber exceeded that permitted by s. 7(2) of O. Reg. 512/97. As a result, the trailer was impounded for 15 days under s. 82.1 of the Act. Thereafter, both the driver and the owner were charged under s. 84 of the Act.
11At trial, there was evidence of the push rod travel defects in the brakes, but no evidence that this actually affected the braking capacity of the vehicle.
12The Justice of the Peace concluded that, as a matter of statutory interpretation, a defect deemed by regulation to be a critical defect for the purposes of s. 82.1 of the Act is not thereby deemed to be a critical defect for the purposes of s. 84(1.1). There being no other evidence that the vehicle was dangerous or unsafe, she acquitted both respondents. Her decision was upheld by the Ontario Court of Justice.
The Crown's Submissions
13In this court, the Crown submits that O. Reg. 512/97 must be taken to apply to s. 84(1.1) as well as to s. 82.1 and that since the vehicle in this case had a critical defect as prescribed by that regulation, the respondent should have been convicted.
14The Crown argues that this is the plain meaning of s. 84(1.1), which encompasses any defect defined by regulation as a critical defect. That includes the push rod travel defects found on this vehicle.
15It also says that this is consistent with the legislative intent that such defects would carry two sanctions, namely vehicle impoundment under s. 82.1 and conviction under s. 84(1) and (1.1). It says that this is evident from the fact that s. 82.1 and s. 84(1.1) came into force simultaneously and from the record of the proceedings of the Legislature at the time.
16It also argues that without such an interpretation the same phrase, namely “critical defect”, would carry different meanings in s. 82.1 and s. 84.(1.1) contrary to the rule of construction favouring consistent expression.
17In addition it says there would be a gap in the legislative scheme because with no other prescription by regulation of what constitutes a critical defect, s. 84(1.1) would be rendered meaningless.
18Finally, and in the alternative, the Crown says that the regulation making authority given by s. 82.1(37)(a) requires the Lieutenant Governor in Council to prescribe for all purposes what constitutes a critical defect and that the attempt to confine the prescription to s. 82.1 should be excised from the regulation as a limit the LGIC could not impose.
Analysis
19In my view these arguments cannot succeed. Most obviously, the plain meaning of O. Reg. 512/97 does not permit it. Section 7(2) of that regulation explicitly provides that it prescribes what is to be a critical defect “for the purposes of s. 82.1 of the Act”. The title of the regulation itself (“Suspension and Impoundment of Commercial Motor Vehicles for Critical Defects Under s. 82.1 of The Act”) confirms this. This language can only mean that the prescription of what is a critical defect applies just to s. 82.1 of the Act. That was the clear intention of the Lieutenant Governor in Council.
20Moreover, there is nothing in the language of s. 84(1.1) to suggest that the intention of the Legislature was to have what was prescribed by regulation as a critical defect for s. 82.1 also be a critical defect for s. 84(1.1). Quite the reverse. Under s. 82.1(6) a critical defect causes a vehicle to be deemed in a dangerous or unsafe condition. Under s. 84(1.1), on the other hand, a critical defect causes a vehicle to be deemed in such a dangerous or unsafe condition as to endanger any person. This suggests a legislative intent that a critical defect under s. 84(1.1) is something more than a critical defect under s. 82.1. In other words, they are not to be equated. Nor does a reading of Hansard, where the focus was entirely on the new scheme for impoundment and not the offence provisions, suggest a legislative intent that the same conduct should attract both the sanctions of impoundment and conviction.
21In providing that O. Reg. 512/97 applies only to s. 82.1, the Lieutenant Governor in Council acted consistently with the legislative intention reflected in s. 82.1 and s. 84(1.1). That intention is that, unlike s. 82.1(6), s. 84(1.1) encompasses serious critical defects sufficient to render a vehicle in such a dangerous or unsafe condition as to endanger any person. The differing purposes of s. 82.1 and s. 84(1.1) explain why the prescribed list of critical defects for one cannot be taken as the prescribed list for the other. It also explains why the regulation does not contravene the rule favouring consistent expression.
22It is true that this creates a gap in the legislative scheme. There is no regulation prescribing what is a critical defect for the purposes of s. 84(1.1). However, that does not render the offence section unworkable. Section 84(1) has operated for many years without s. 84(1.1). Moreover, if the absence of a regulation applicable to s. 84(1.1) is considered a gap, it is not the role of the courts to determine how it should be filled. See Beattie v. National Frontier Insurance Co. (2003), 2003 CanLII 2715 (ON CA), 68 O.R. (3d) 60 (C.A.), at para. 18.
23Finally, I do not think that the regulation making authority given by s. 82.1(37)(a) limits the Lieutenant Governor in Council to writing a single prescription of what constitutes a critical defect that must apply to all sections of the Act. The subsection does not say so. It simply says that the Lieutenant Governor in Council may make regulations prescribing what constitutes a critical defect. This constitutes a delegation by the Legislature of a sphere of legislative authority in permissive terms, which the Lieutenant Governor in Council can exercise in whole, in part or not at all. Here it has done so but only for the purposes of s. 82.1, something it was perfectly entitled to do.
Conclusion
24In summary, I conclude that the regulation relied on by the Crown does not apply to s. 84(1.1). Given the absence of other evidence, the charges were properly dismissed. The appeal is dismissed.
RELEASED: June 26, 2009 “DOC”
“S.T. Goudge J.A.”
“I agree D. O’Connor A.C.J.O.”
“I agree M. Rosenberg J.A.”
