Her Majesty the Queen v. Michaud, 2015 ONCA 585

minicounsel

Footnotes

I observe that even if the appeal had proceeded under Part III of the POA, the appeal judge would have been obliged to establish a process for the reception and testing of the fresh evidence. The method he used in this appeal would have been consistent with his authority under Part III of the POA and with the powers of an appeal court under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46, on which Part III is modelled.
In Bedford, the court referred to arbitrariness, overbreadth and gross disproportionality variously as "values" (paras. 96, 105), "principles" (paras. 106, 107) and "concepts" (para. 97), which implies that they are analytical synonyms.
The authors of Risk Management use speed limiters as an example of a "rules-based ex ante solution" (2:15:30).
I note in passing that the trial justice impugned the government's assertion that it relied on 18 months of research to back the need for introducing speed limiters, "yet Dr. Saccomanno's research was not published until after the introduction of the legislation in 2009 and refers to the introduced legislation" (p.16). Regulators have knowledge, information, experience and expertise on which they can act without waiting for published peer-reviewed articles in professional journals.
See Law Society of British Columbia v. Andrews, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, at para. 43, where McIntyre J. adopted a description of s. 15, which I would paraphrase and apply here: The broader the reach given to s. 7, the more likely it is that it will be deprived of any real content.

[Indexed as: R. v. Michaud]

Ontario Reports

Court of Appeal for Ontario,

Watt, Lauwers and Hourigan JJ.A.

August 31, 2015

127 O.R. (3d) 81 | 2015 ONCA 585

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Security of the person — Legislation which required defendant commercial truck driver to equip his truck with speed limiter set to maximum speed of 105 km/h violating defendant's right to security of the person under s. 7 of Charter as speed limiter requirement left defendant in physical danger in some situations — Legislation overbroad — Legislation saved under s. 1 of Charter — Canadian Charter of Rights and Freedoms, ss. 1, 7.

Criminal law — Provincial offences — Appeals — Prosecution commenced by certificate of offence under Part I of Provincial Offences Act — Defendant acquitted — Crown appealing — Appeal court properly conducting robust review under s. 136(2) of Provincial Offences Act governing Part I appeals — Defendant's argument that presence of counsel, complexity of evidence and Charter arguments rendering more limited scope of review applicable to Part III Provincial Offences Act appeals rejected — Provincial Offences Act, R.S.O. 1990, c. P.33, s. 136(2).

The late defendant, a commercial truck driver, was required by law to equip his truck with a speed limiter set to a maximum speed of 105 km/h. The speed limiter on his truck was set to 109.4 km/h. The defendant was charged with contravening s. 68.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and s. 14 of the equipment regulation, R.R.O. 1990, Reg. 587 (the "legislation"). At trial, the defendant argued that the legislation violated his right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms as there were circumstances in which a speed limiter set at 105 km/h would put him in physical danger. The trial justice found that the danger imposed on the defendant by the operation of the legislation was not in accordance with the principles of fundamental justice. In particular, he found that the 105 km/h setting for the speed limiter was arbitrary, and that the requirement of speed limiters set to 105 km/h failed to achieve the goal of increasing highway safety by preventing accidents, but instead created a potentially new set of dangers that might result in collisions caused by the inability to have full care and control of one's vehicle. The defendant was acquitted. The Ontario Court of Justice admitted expert fresh evidence, found no Charter violation and allowed the Crown's appeal. The defendant appealed.

Held, the appeal should be dismissed.

The prosecution was commenced by a certificate of offence under Part I of the Provincial Offences Act ("POA"). Section 135(1) of the POA provides that an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I may be appealed to the Ontario Court of Justice. Section 136(2) provides that such appeals are to be conducted by means of a review, and s. 136(3) sets out the appeal court's broad powers of review. The appeal court in this case properly conducted a robust review under s. 136 of the POA. The court was not required to exercise the more limited scope of review applicable to appeals under Part III of [page82 ]the POA because the trial involved experienced counsel, expert witnesses and Charter arguments. The appeal court was entitled to admit fresh evidence and, having done so, had to consider whether on the whole of the evidence the trial judge's view of the trial evidence was reasonable. The appeal judge was entitled to come to his own conclusion, based on all the evidence, whether the defendant established on a balance of probabilities that the speed limiter requirement deprived him of his right to security of the person.

The legislation violated the defendant's rights under s. 7 of the Charter. There was expert evidence which confirmed the defendant's anecdotal evidence of needing on occasion to accelerate out of a dangerous situation. The legislation deprived the defendant of his right to security of the person in a manner that violated one of the principles of fundamental justice, overbreadth. Truck speed limiters might be rational in some cases, but the legislation overreached in its effect in others. In the area of overreach, the legislation operated arbitrarily. The focus of s. 7 of the Charter is relentlessly on the individual claimant. If, as a result of legislation, a single individual is left in danger in even a single situation, then the legislation breaches the claimant's rights under s. 7.

The government's goals in enacting the speed limiter legislation were to improve highway safety by preventing accidents and reducing the severity of collisions, and to reduce greenhouse gas emissions. Those objectives are pressing and substantial. The limiter legislation is rationally connected to the objectives. It is not unsound to combine an element of prohibition (speed limiters in trucks) with enforcement of speed limits using traffic officers and radar guns and choosing this mix was uniquely within the purview of the regulators. The particular speed limit set by the speed limiters was also within the reasonable range of policy choices available to the government. The legislation minimally impairs the s. 7 right to security of the person of truck drivers. There is proportionality between the deleterious and salutary effects of the legislation, since the public benefits associated with improved highway safety exceed the detrimental effects on the s. 7 right of truck drivers. The breach of the defendant's s. 7 right was justified under s. 1 of the Charter.

Bedford v. Canada (Attorney General), [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, 312 O.A.C. 53, 2014EXP-30, J.E. 2014-21, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334, 110 W.C.B. (2d) 753, varg (2012), 109 O.R. (3d) 1, [2012] O.J. No. 1296, 2012 ONCA 186, 256 C.R.R. (2d) 143, 91 C.R. (6th) 257, 290 O.A.C. 236, 282 C.C.C. (3d) 1, 346 D.L.R. (4th) 385, 100 W.C.B. (2d) 704, varg (2010), 102 O.R. (3d) 321, [2010] O.J. No. 4057, 2010 ONSC 4264, 217 C.R.R. (2d) 1, 327 D.L.R. (4th) 52, 262 C.C.C. (3d) 129, 80 C.R. (6th) 256, 199 A.C.W.S. (3d) 1136, 91 W.C.B. (2d) 184 (S.C.J.); R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 16 W.C.B. 73, apld

Other cases referred to

114957 Canada Ltée v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, 2001 SCC 40, 200 D.L.R. (4th) 419, 271 N.R. 201, J.E. 2001-1306, 40 C.E.L.R. (N.S.) 1, 19 M.P.L.R. (3d) 1, REJB 2001-24833, 106 A.C.W.S. (3d) 270; Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, [2009] S.C.J. No. 37, 2009 SCC 37, 310 D.L.R. (4th) 193, [2009] 9 W.W.R. 189, J.E. 2009-1407, EYB 2009-161892, 390 N.R. 202, 9 Alta. L.R. (5th) 1, 81 M.V.R. (5th) 1, 460 A.R. 1, 179 A.C.W.S. (3d) 327; Canada v. Craig, [2012] 2 S.C.R. 489, [2012] S.C.J. No. 43, 2012 SCC 43, 347 D.L.R. (4th) 385, 433 N.R. 111, 2012EXP-2757, J.E. 2012-1453, 2012 D.T.C. 5115, 2012 D.T.C. 5116; [page83 ]Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, 2011 SCC 53, 2011EXP-3257, 2011EXPT-1939, J.E. 2011-1815, D.T.E. 2011T-708, EYB 2011-197380, 93 C.C.E.L. (3d) 1, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, 93 C.C.E.L. (3d) 1, 422 N.R. 248, [2011] CLLC Â230-043, 73 C.H.R.R. D/30; Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12, 2009 SCC 12, 304 D.L.R. (4th) 1, 385 N.R. 206, 77 Imm. L.R. (3d) 1, 82 Admin. L.R. (4th) 1, EYB 2009-155418, J.E. 2009-481, 175 A.C.W.S. (3d) 7; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, 17 C.R. (7th) 1, 327 C.R.R. (2d) 334, 66 B.C.L.R. (5th) 215, [2015] 3 W.W.R. 425, 320 C.C.C. (3d) 1, 366 B.C.A.C. 1, 468 N.R. 1, 384 D.L.R. (4th) 14, 2015EXP-471, J.E. 2015-245, EYB 2015-247729, 120 W.C.B. (2d) 561, 252 A.C.W.S. (3d) 74; Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321, [2008] O.J. No. 4165, 2008 ONCA 718, 179 C.R.R. (2d) 310, 242 O.A.C. 192, 61 C.R. (6th) 374, 301 D.L.R. (4th) 414, 170 A.C.W.S. (3d) 508; Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 2012 SCC 12, 428 N.R. 146, 2012EXP-1231, J.E. 2012-672, EYB 2012-203967, 255 C.R.R. (2d) 289, 34 Admin. L.R. (5th) 1, 343 D.L.R. (4th) 193, 211 A.C.W.S. (3d) 852; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, J.E. 2003-2076, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Law Society of British Columbia v. Andrews, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, J.E. 89-259, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, 10 C.H.R.R. D/5719, 13 A.C.W.S. (3d) 347; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, [1993] S.C.J. No. 2, 100 D.L.R. (4th) 212, 146 N.R. 161, J.E. 93-231, 118 N.S.R. (2d) 181, 13 C.R.R. (2d) 1, 37 A.C.W.S. (3d) 1194; Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 125 D.L.R. (4th) 385, 183 N.R. 325, J.E. 95-1497, 82 O.A.C. 243, 99 C.C.C. (3d) 97, 17 C.E.L.R. (N.S.) 129, 41 C.R. (4th) 147, 30 C.R.R. (2d) 252, 27 W.C.B. (2d) 485; Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 16893 (ON CA), 58 O.R. (3d) 37, [2002] O.J. No. 283, 155 O.A.C. 225, 52 W.C.B. (2d) 484 (C.A.); Paradis Honey Ltd. v. Canada (Attorney General), [2015] F.C.J. No. 399, 2015 FCA 89, 472 N.R. 75, 382 D.L.R. (4th) 720, 18 C.C.L.T. (4th) 274, 251 A.C.W.S. (3d) 254; R. v. Duma, [2012] O.J. No. 840, 2012 ONCJ 94, 100 W.C.B. (2d) 183; R. v. Gill, [2003] O.J. No. 4761, 46 M.V.R. (4th) 230, 61 W.C.B. (2d) 534 (C.J.); R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 120 D.L.R. (4th) 348, 174 N.R. 81, J.E. 94-1938, 50 B.C.A.C. 161, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133, 24 C.R.R. (2d) 189, 25 W.C.B. (2d) 438; R. v. Sault Ste. Marie (City), 1978 11 (SCC), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 85 D.L.R. (3d) 161, 21 N.R. 295, 40 C.C.C. (2d) 353, 7 C.E.L.R. 53, 3 C.R. (3d) 30, EYB 1978-147041, 2 W.C.B. 321; R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6 W.W.R. 1, J.E. 2001-294, 146 B.C.A.C. 161, 88 B.C.L.R. (3d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 86 C.R.R. (2d) 1, REJB 2001-22168, 48 W.C.B. (2d) 287; R. v. Smith, [2015] S.C.J. No. 34, 2015 SCC 34, 472 N.R. 1, 20 C.R. (7th) 246, 386 D.L.R. (4th) 583, 323 C.C.C. (3d) 461, EYB 2015-253104, 2015EXP-1813, J.E. 2015-1001, 122 W.C.B. (2d) 231; R. v. Timminco Ltd. (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443, 144 O.A.C. 231, 153 C.C.C. (3d) 521, 11 C.C.E.L. (3d) 46, 42 C.R. (5th) 279, 49 W.C.B. (2d) 475 (C.A.); R. v. Transport Robert (1973) Lteé (2003), 2003 7741 (ON CA), 68 O.R. (3d) 51, [2003] O.J. No. 4306, 234 D.L.R. (4th) 546, 178 O.A.C. 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 (C.A.); [page84 ]RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, 127 D.L.R. (4th) 1, 187 N.R. 1, J.E. 95-1766, 100 C.C.C. (3d) 449, 62 C.P.R. (3d) 417, 31 C.R.R. (2d) 189, 57 A.C.W.S. (3d) 578, 28 W.C.B. (2d) 216; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29, 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451, J.E. 98-847, 67 Alta. L.R. (3d) 1, 212 A.R. 237, 98 CLLC Â230-021, 50 C.R.R. (2d) 1, 31 C.H.R.R. D/1, 78 A.C.W.S. (3d) 48

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7, 15

Criminal Code, R.S.C. 1985, c. C-46, s. 683

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 68.1(1)

Provincial Offences Act, R.S.O. 1990, c. P.33, Parts I [as am.], III [as am.], ss. 116-134 [as am], 135 [as am.], (1), 136, (2), (3), 138(1), 139 [as am.]

Rules and regulations referred to

R.R.O. 1990, Reg. 587 (Highway Traffic Act), s. 14(1)

Authorities referred to

Archibald, Todd L., Kent W. Roach and Kenneth E. Jull, Regulatory and Corporate Liability: From Due Diligence to Risk Management, looseleaf (Toronto: Canada Law Book, 2015)

Hogg, Peter, "The Brilliant Career of Section 7 of the Charter" (2012), 58 S.C.L.R. (2d) 195

Service Ontario, Ontario Regulatory Policy (Toronto: Queen's Printer for Ontario, 2014), online: <http:// www.ontariocanada.com/registry/downloads/Ontario%20 Regulatory%20Policy.pdf>

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012)

Sunstein, Cass R., Simpler: The Future of Government (New York: Simon and Schuster, 2013)

Sunstein, Cass R., "The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers)" (2014), 114 Colum. L. Rev. 167

Treasury Board of Canada Secretariat, Canadian Cost-Benefit Analysis Guide: Regulatory Proposals (Ottawa: Her Majesty the Queen in Right of Canada, 2007), online: http:// www.tbs-sct.gc.ca/rtrap-parfa/analys/analys-eng.pdf

United States Federal Motor Carrier Safety Administration, Research on the Safety Impacts of Speed Limiter Device Installations on Commercial Motor Vehicles: Phase II

APPEAL by the defendant from the judgment of D.A. Harris J., [2014] O.J. No. 2443, 2014 ONCJ 243 setting aside the decision of Justice of the Peace B. Kelly dated June 6, 2012.

David Crocker and Laura K. Bisset, for appellant.

Joshua Hunter and Padraic Ryan, for respondent.

The judgment of the court was delivered by

1LAUWERS J.A.: — Gene Michaud, the late appellant, was a commercial truck driver. He was required by law to equip his truck with a functional speed limiter set to a maximum speed of 105 km/h. The speed limiter on Mr. Michaud's truck was [page85 ]functional, but was set to 109.4 km/h. He was charged with contravening s. 68.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") and s. 14(1) of the equipment regulation, R.R.O. 1990, Reg. 587 (the "legislation"), which together impose the speed limiter requirement. Mr. Michaud admitted the facts.

2The justice of the peace at first instance acquitted Mr. Michaud on the basis that the legislation infringed his right to security of the person and thereby violated s. 7 of the Canadian Charter of Rights and Freedoms. When Mr. Michaud passed away before the first appeal, his wife, Barbara Michaud, was substituted as the party and the appeal proceeded. On appeal, the Ontario Court of Justice admitted fresh evidence, found no Charter violation and set aside the trial decision.

3This is a test case for the trucking industry. Justice Blair granted leave to appeal to this court under s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA") on two questions of law:

(1) What is the scope of an appeal to the Ontario Court of Justice on a Part I POA offence, pursuant to s. 135 of the POA?

(2) Is s. 68.1(1) of the HTA unconstitutional because it violates the right to security of the person, which is protected by s. 7 of the Charter?

4For the reasons set out below, I would dismiss the appeal. Following a brief overview of the proceedings below, I address each question of law in turn.

A. The Decision of the Justice of the Peace

5On consent, the evidence at trial consisted of affidavits and out-of-court cross-examinations. The trial justice had evidence from three witnesses called by the defence: the appellant Mr. Michaud, a licensed professional driver; Julie Cirillo, an expert on highway safety; and Michael Lepage, an expert on greenhouse gases. The Crown called Dr. Frank Saccomanno, an expert on truck speed limiters.

6The trial justice followed the analytical approach taken by the trial court in Bedford v. Canada (Attorney General) (2010), 102 O.R. (3d) 321, [2010] O.J .No. 4057, 2010 ONSC 4264 (S.C.J.). He considered, first, whether the legislation constituted a deprivation of Mr. Michaud's security of the person; and second, whether the deprivation was in accordance with the principles of fundamental justice. [page86 ]

(1) Security of the person

7The trial justice identified three purposes for truck speed limiters: to reduce greenhouse gas emissions, to reduce the severity of collisions and to prevent accidents.

8The trial justice acknowledged, at pp.15-16, that the speed limiters may achieve, albeit in only a minor way, the goal of reducing greenhouse gas emissions by trucks, based on the evidence of Mike Lepage, an expert in meteorology, air quality analysis and atmospheric chemistry modelling.

9On the goal of reducing of the severity of collisions, the trial justice noted, at p. 9, that "All agreed that speed is a factor in severity and affects response times and may contribute to frequency of accidents." He qualified his acceptance of this evidence, at p. 15: "However, I was provided no evidence as to what the threshold speed might be because once you are past a certain speed it does not matter." He added, by way of explanation: "so after a certain rate of speed, it is not going to matter. It is going to be severe and there are going to be fatalities but I have nothing to refer to on this".

10On the goal of preventing accidents, the trial justice accepted the evidence of Mr. Michaud and Ms. Cirillo, and rejected the evidence of Dr. Saccomanno.

11Mr. Michaud's evidence was anecdotal. The trial justice accepted it as the "observational" evidence of an "experienced professional", but not an expert (p. 6). Mr. Michaud asserted that a speed limiter set at 105 km/h would have put him in personal danger by preventing him from keeping pace with traffic in certain circumstances. He recounted several instances from personal experience in which he felt unsafe due to the speed limiter's restriction on his ability to manoeuvre his vehicle. In particular, he pointed to his inability to accelerate at exits and on ramps where there is considerable friction between vehicles traveling at different speeds; his inability to pass slower vehicles in a timely manner; and his inability to manoeuvre out of a "jack-knife" situation by way of acceleration.

12Ms. Cirillo is the retired assistant administrator and chief safety officer of the United States Federal Motor Carrier Safety Administration. She testified that a speed limiter set at 105 km/h would place trucks at variance with the higher mean speed of highway traffic. She asserted that "turbulence" resulting from speed variance among vehicles, rather than absolute rates of speed, causes collisions; the use of speed limiters produces variations in speeds among vehicles, and therefore causes more accidents. As the trial justice put it (p. 5): [page87 ]"increased variance from the mean rate of speed will result in a higher number of collisions". Ms. Cirillo admitted she was not an expert on speed limiters.

13Dr. Saccomanno is a tenured professor of civil engineering at the University of Waterloo and an expert in speed limiters. He authored a study for Transport Canada that led to the creation of the legislation. At trial, Dr. Saccomanno asserted, based on mathematical models, that equipping trucks with speed limiters would result in increased safety by reducing truck speed and by decreasing the severity of collisions and possibly reducing fatalities.

14In his affidavit, Dr. Saccomanno gave the opinion: "truck speed limiters do not pose any significant safety hazard that would argue against their adoption for freeway operations". He added that they decrease high-risk interactions between cars and trucks, improve lane discipline, and reduce crash frequency and severity.

15The trial justice did not accept Dr. Saccomanno's evidence. Instead, he cited it as partially supportive of Ms. Cirillo's evidence. He quoted Dr. Saccomanno's study: "at certain volumes and specific areas of the highway, namely on and off ramps, greater turbulence occurs, resulting in decreased safety". He cited Dr. Saccomanno for the proposition that in certain instances, "speed limiters can actually reduce the level of safety" (at p. 10).

16The trial justice noted that many factors contribute to highway traffic accidents, including excess speed and variance from the mean speed. However, he found that the evidence did not establish that the use of speed limiters actually results in increased safety and decreased accident rates. He stated, at p. 11:

There is no research that says the use of speed limiters has resulted in increased safety and a decrease in the accident rates in those jurisdictions that have implemented them. There are no studies providing any empirical scientifically supported evidence demonstrating before and after effects of speed limiters.

17The trial justice reasoned that the HTA is meant to promote drivers "having due care and attention or having reasonable consideration for other persons while driving"; there is an expectation that a driver will be able to manoeuvre as necessary to avoid collisions, but the speed limiter interferes with this ability in some instances, putting the driver and those nearby in danger.

(2) The principles of fundamental justice

18As noted, for the purposes of the s. 7 analysis using the approach taken in the trial decision in Bedford, the trial justice [page88 ]considered three purposes for speed limiters: reducing greenhouse gas emissions, reducing the severity of collisions and preventing accidents.

19The trial justice acknowledged that the speed limiters may achieve the goal of reducing greenhouse gas emissions by trucks, albeit in only a minor way. But that acknowledgment was of no moment in his consideration of the principles of fundamental justice. Nor did the trial justice advert to the goal of reducing the severity of collisions in this section of his analysis.

20Instead, the trial justice focused on the goal of accident prevention. He determined that the danger imposed on Mr. Michaud by the operation of the legislation was not in accordance with the principles of fundamental justice. In particular, he held that the 105 km/h setting for the speed limiter was arbitrary. Since the government could not explain how it arrived at precisely that number, he surmised that it was chosen "without the benefit of science as to the safety or effectiveness of the limit" (p. 17). He found that the requirement of speed limiters set to 105 km/h failed to achieve its goal of increasing highway safety by preventing accidents. Instead, "it has created a potentially new set of dangers that may result in collisions caused by the inability to have full care and control of one's vehicle" (p. 15).

21The trial justice concluded that the legislation therefore negatively affected Mr. Michaud's s. 7 right to security of the person, based on the trial court's logic in Bedford. Accordingly, the trial justice did not convict Mr. Michaud of the offence, but provided the following remedy: "section s. 68.1 of the Highway Traffic Act is struck for this instance, as it is contrary to section 7 of the Charter of Rights and Freedoms as it pertains to the security of person" (at p. 19).

B. The Decision of the Appeal Judge

22In conducting his review, the appeal judge noted that he had two advantages over the justice of the peace. First, he had the benefit of the recent decisions of the Ontario Court of Appeal and the Supreme Court of Canada in Bedford v. Canada (Attorney General) (2012), 109 O.R. (3d) 1, [2012] O.J. No. 1296, 2012 ONCA 186 and Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72 (paras. 33-34). Second, he had the benefit of fresh expert evidence that was not available at the time of trial (para. 95).

23The appeal judge reviewed the evidence presented at trial, noting that Dr. Saccomanno and Ms. Cirillo agreed that [page89 ]both excess speed and speed variance were factors in the occurrence of motor vehicle accidents, but disagreed as to the relative importance of each factor (para. 55).

24He observed that the "[s]tudies reviewed by Dr. Saccomanno were either positive or neutral regarding the safety implications of speed limiters on trucks" (para. 64), and that Ms. Cirillo "was not aware of any studies on speed limiters at all let alone a study that showed that speed limiters make speed variance more likely or that accident rates increase" (para. 70).

25The appeal judge then reviewed the Crown's fresh evidence. Dr. Saccomanno testified by way of a new affidavit and out-of-court cross-examination about a study released in March 2012, after the trial, by the United States Federal Motor Carrier Safety Administration. This new study, entitled Research on the Safety Impacts of Speed Limiter Device Installations on Commercial Motor Vehicles: Phase II, identified the impacts of commercial vehicle speed limiters on the frequency and severity of collisions.

26The appeal judge quoted Dr. Saccomanno's opinion that "the study has established a major empirical link between observed carrier crash rates and speed limiter use"; it provided "sound statistical evidence that truck speed limiters yield positive safety benefits in reducing crashes where speeding is a problem"; and it provided "a strong empirical counter-argument to the view that limiters increase speed variance . . . lead[ing] to higher car-truck frequency" (para. 87).

27The defence relied on the responding evidence of Dr. Steven Johnson, a tenured professor of industrial engineering at the University of Arkansas, Fayetteville. Dr. Johnson had some involvement in the new study. He had been hired to assemble a panel of peer reviewers for the new study but had not reviewed it himself.

28The appeal judge noted Dr. Johnson's opinion that the new study's conclusions were "misleading and misrepresent the data from the study". The appeal judge clearly doubted Dr. Johnson's evidence, observing that he had not shared his concerns with the study's authors prior to its publication, and cited his repeated statements in cross-examination that he was not "criticizing the study" (paras. 90-92). Dr. Saccomanno acknowledged that the study had some methodological and data infirmities but explained why they were not serious enough to undermine the reliability of its conclusions (paras. 93-94). The appeal judge accepted Dr. Saccomanno's evidence.

29The appeal judge concluded that the defence evidence had not established that the speed limiter deprived Mr. Michaud [page90 ]of his security of the person. In particular, he found that Mr. Michaud did not support his opinion that speed limiters endanger his life with any established facts beyond his anecdotes (para. 112). The appeal judge noted that Mr. Michaud described one occasion in which he accelerated to avoid a dangerous situation. This kind of situation was addressed by Dr. Saccomanno: according to a 2008 study by the U.S Transportation Research Board entitled "Safety Impacts of Speed Limiter Device Installations on Commercial Truck and Buses", at p. 11, acceleration was used in fewer than 2 per cent of traffic conflicts to avoid potential crashes (para. 123). I infer that the appeal judge found this incidence of risk to be de minimis.

30Further, the appeal judge found that Ms. Cirillo did not offer any evidence that speed limiters led to the speed differentials she identified as a greater cause of accidents than speeding (para. 102). And even if she had established a link between speed limiters and increased danger, the appeal judge found, in light of Dr. Saccomanno's evidence, that Ms. Cirillo had not established that speed differentials caused more accidents than speeding (para. 104).

31The appeal judge accepted Dr. Saccomanno's evidence that speed limiters contribute to increased highway safety (paras. 135, 140). He found Dr. Saccomanno's evidence to be clear, unbiased, directly relevant to the issues before the court and in line with common sense, noting that the same could not be said about the evidence presented on behalf of Mr. Michaud (paras. 141-43).

32The appeal judge concluded, therefore, that Mr. Michaud's evidence failed to establish that the speed limiter requirement deprived him of his s. 7 right to security of the person.

33Although the appeal judge's conclusion on this issue determined the appeal, he went on to consider whether Mr. Michaud had established that the speed limiter requirement was arbitrary and, as a result, was not in accordance with the principles of fundamental justice.

34The appeal judge concluded that the legislation was not arbitrary because it was directly connected to its objectives of reducing truck emissions and improving highway safety (paras. 164-75). With respect to the latter objective, the appeal judge noted that the legislature's view that reducing truck speed would improve highway safety was supported by a number of safety organizations, similar legislation in other countries and common sense (paras. 170-73). Further, the appeal judge concluded that the regulated maximum speed limiter setting of [page91 ]105 km/h was not arbitrary because it represents the maximum legal speed plus a 5 per cent margin of error (paras. 156-57).

35The appeal was allowed, but instead of entering a conviction against the deceased Mr. Michaud, the proceedings against him were stayed.

36I now turn to the appeal questions.

C. The First Question: What is the Scope of an Appeal to the Ontario Court of Justice on a Part I POA Offence?

37The prosecution was commenced by a certificate of offence, commonly known as a "ticket", under Part I of the POA. The appellant submits that it was an error in principle for the appeal judge to use his review powers under Part I of the POA effectively "to conduct a re-trial". Instead, he should have applied the more limited scope of appeal and the more deferential approach to the trial justice's findings that would be required if this were an appeal under Part III of the POA.

38The appellant makes two arguments in support of this submission. First, this was not a simple parking or by-law infraction defended against by a self-represented litigant or paralegal. Instead, the trial involved experienced counsel, expert evidence and a two-day trial consisting primarily of legal argument under the Charter. The fact that the prosecution was started, in the discretion of a Ministry of Transportation officer, by a ticket and not by the laying of an information, is no more than irrelevant "happenstance". The exhaustive trial process in this case was not typical of a Part I prosecution, the appellant argues, and should in principle have given rise to the more limited scope of review applicable to appeals under Part III.

39Second, the appellant submits that the POA does not contemplate a retrial of the sort conducted by the appeal judge, who did not defer to the trial justice's credibility findings, but extensively reweighed the evidence.

40As I will explain after describing the context, there is no merit to these arguments. The appeal judge's decision to admit fresh evidence required him to take a more expansive approach to all of the evidence.

(1) The context

41Mr. Michaud's truck was inspected at a Ministry of Transportation inspection station on the Queen Elizabeth Highway. The officer discovered that his speed limiter was set at 109.4 km/h, not to 105 km/h as required by the legislation. He issued a ticket to Mr. Michaud. This led to the prosecution under Part I of the POA, and eventually to this appeal. [page92 ]

42The POA provides for provincial offences to be prosecuted in one of two ways. If the charging officer issues a ticket, then the prosecution follows the process in Part I of the POA (or for parking infractions, under Part II). If the charging officer chooses to lay an information, then the prosecution follows the process in Part III of the POA.

43It is no surprise that the charging officer issued a ticket under Part I of the POA. Administratively, it is expedient for officers in a busy highway inspection station to hand out tickets at the point of the infraction for traffic or other minor offences like the one at issue in this case. The laying of an information is a more protracted procedure requiring the involvement of a justice of the peace and is generally used for more serious charges. The choice is left to the charging officer. There was nothing atypical about the ticket in this instance and there is no suggestion that the officer abused his authority in issuing it.

44I reject the appellant's submission that the manner of proceeding was mere "happenstance".

(2) The appeal court's procedural powers in a Part I appeal

45 Section 135(1) of the POA provides that "an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I" may be appealed to the Ontario Court of Justice. Section 136(2) of the POA stipulates that such appeals are to be "conducted by means of a review". The appeal court's broad powers in conducting the review are set out in s. 136(3):

136(3) In determining a review, the court may,

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

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

(d) receive and act upon statements of agreed facts or admissions.

The appeal court has power to affirm, reverse or vary the decision under appeal, or to direct a new trial, under s. 138(1).

46The appellant submits that the scope of appeal under Part I is broader than an appeal of a conviction under an information laid under Part III, which is instead governed by ss. 116 to 134 of the POA. I agree that this is generally true. See, for example, R. v. Duma, [2012] O.J. No. 840, 2012 ONCJ 94, at para. 24. [page93 ]

47The centrality of legislative intent to the determination of the appropriate standard of review was recognized by Binnie J. in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12, 2009 SCC 12, at para. 30, and by Rothstein J. in his concurring reasons, at para. 85.

48As explained by Duncan J. in R. v. Gill, [2003] O.J. No. 4761, 46 M.V.R. (4th) 230 (C.J.), at para. 11, the legislature clearly intended Part I appeals to be conducted as robust reviews, so that deference to the trial justice is limited to credibility findings:

. . . I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.

49There is no basis in the legislation, case law or principle to depart from this robust review simply because the present case is not a "typical" Part I matter, as submitted by the appellant.

(3) The effect of the fresh evidence

50The appellant submits that the appeal court's Part I review powers do not permit an appeal judge to engage in extensive reweighing of the evidence or to interfere with credibility findings. The appellant argues that, in doing so, the appeal judge impermissibly conducted a retrial.

51The appellant's argument ignores the important role played by the fresh evidence. In particular, Dr. Saccomanno, for the Crown, and Dr. Johnson, for Mr. Michaud, provided expert opinions on a new American study identifying the impact of speed limiters on the frequency and severity of crashes.

52Once the fresh evidence was admitted, the appeal judge was obliged to consider it along with all of the other evidence, and to consider whether the trial justice's views of the trial evidence were reasonable.

53The appeal judge accepted the evidence of Dr. Saccomanno that speed limiters yield positive safety benefits, over what he found to be the somewhat contradictory evidence of Dr. Johnson. That evidence filled a hole in the Crown's case, which was identified by the trial justice's finding that there was no empirical evidence establishing that the use of speed limiters had actually resulted in increased safety and a decrease in accident rates. The new study remedied that deficiency. [page94 ]

54In my view, in light of the fresh evidence, the appeal judge was entitled if not obliged to re-assess all of the evidence under s. 136 of the POA. The issue of the sufficiency of the fresh evidence is well within the purview of an appeal judge reviewing a decision under Part I of the POA: Gill, at para. 11. So too is the power of the appeal judge to come to his own conclusion on all of the evidence, and to find, as he did, that the appellant's evidence was not sufficient to establish on a balance of probabilities that the speed limiter requirement deprived Mr. Michaud of his right to security of the person.

55Contrary to the appellant's assertions, the appeal judge did not so much overturn the credibility findings of the trial justice, as qualify them in light of the fresh evidence. He did not find that Mr. Michaud and his expert witness, Ms. Cirillo, were not credible, but he found that the trial justice gave too much weight to their evidence in light of the opposing evidence of the Crown's expert witness, Dr. Saccomanno (para. 53).

56The appeal judge relied on the fresh evidence in coming to this conclusion. He noted that Dr. Saccomanno's testimony was clear, unbiased, directly relevant to the issues before the court and in line with common sense; he did not find this to be true of Mr. Michaud and Ms. Cirillo (paras. 141-43). The assessment of the evidence is at the core of the appeal judge's function under Part I of the POA.¹

(4) Conclusion on the scope of appellate review by the Ontario Court of Justice on a Part I POA offence

57The appellant has not established that the appeal judge committed a palpable and overriding error, or an error in principle, in the way he approached his role or the evidence.

58I would reject the appellant's first ground of appeal, and answer the first question on this appeal as follows: The scope of an appellate review by the Ontario Court of Justice on a Part I POA offence pursuant to s. 135 of the POA is broad. There is no need, in the circumstances of this case, to add judicial gloss to a well-understood review standard and appeal methodology. [page95 ]

D. The Second Question: Is s. 68.1(1) of the HTA Unconstitutional Because it Violates the Right to Security of the Person Under S. 7 of the Charter?

59The appellant asserts that the legislation violates his right to security of the person under s. 7 of the Charter, which provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

60The onus is on the rights claimant under s. 7 of the Charter to establish that the impugned legislation deprives him or her of security of the person, and that the deprivation is not in accordance with the principles of fundamental justice. If the claimant succeeds in doing so, then the burden shifts to the respondent Crown, under s. 1 of the Charter, to justify the deprivation as a "reasonable" limit that is "demonstrably justified in a free and democratic society".

61The appellant relies on the analytical framework established by the Supreme Court of Canada decision in Bedford (more recently summarized by the Court in R. v. Smith, [2015] S.C.J. No. 34, 2015 SCC 34). He argues that the legislation fails the s. 7 test because it is "arbitrary" in the Bedford sense. The appellant also argued in this court, but not below, that the impact of the legislation on him offends s. 7 because it is "grossly disproportionate".

(1) The governing principles: The Bedford framework

62In Bedford, the Supreme Court clarified the respective roles of s. 7 and s. 1 of the Charter in rights adjudication. Section 7 of the Charter is meant to assess "the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law" (para. 121). Section 7 of the Charter therefore "does not consider the beneficial effects of the law for society" (para. 121) (emphasis in the quoted excerpts by the Supreme Court). Section 7 focuses on the relationship between the individual claimant and the law, while s. 1 of the Charter focuses on the relationship between the private impact and the public benefit of the law (paras. 124-29). The balancing function -- "whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest" -- is addressed only in the s. 1 Charter analysis (para. 125), after the claimant has established the s. 7 breach. [page96 ]

63The corollary of s. 7's singular focus on the individual rights claimant is that an unacceptable "impact on one person suffices to establish a breach of s. 7" (para. 127), or "to violate the norm" (para. 122). This singular focus has significant implications for the application of s. 7 of the Charter to safety regulation, as discussed below.

64The first question in the s. 7 analysis is whether the law "limits", or "negatively impacts", life, liberty or security of the person (Smith, para. 16; Bedford, para. 58). Security of the person has been defined over time to include the physical and psychological integrity of the person, including personal autonomy. Possible negative effects on the preservation of a person's physical safety and well-being are clearly contemplated by security of the person. There must be, and there is in this case, a "sufficient causal connection between the state-caused effect and the prejudice suffered by the claimant" (Bedford, para. 75).

65The second question in the s. 7 analysis is whether the "limitation" or "deprivation" imposed by the law on security of the person is contrary to the principles of fundamental justice (Smith, para. 21; Bedford, para. 93).

66In Bedford, the court referred to three negative "principles of fundamental justice": arbitrariness, overbreadth and gross disproportionality. The court noted that "the jurisprudence has given shape to the content of these basic values" (para. 96), and went on to outline them in a way that aims to maintain their distinctiveness while recognizing their overlap (para. 107).²

67The three principles of arbitrariness, overbreadth and gross disproportionality recognize what Hamish Stewart calls the impugned legislation's "failures of instrumental rationality" (Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at p. 151). The Supreme Court approved, at para. 107 of Bedford, Peter Hogg's gloss: "the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective". Professor Hogg added: "If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective" ("The Brilliant Career of Section 7 of the Charter" (2012), 58 S.C.L.R. (2d) 195, at p. 209). [page97 ]

68As the Supreme Court put it in Bedford, the "first evil" at which s. 7 is directed is an "absence of connection between the law's purpose and the s. 7 deprivation" (para. 108).

69The principle of "arbitrariness" exists where there is no "direct" or "rational" connection between the purpose of the law and the impugned effect on the individual, or if it can be shown that the impugned effect undermines the objective of the law (para. 111).

70The principle of "overbreadth" is engaged by a "law that is so broad in scope that it includes some conduct that bears no relation to its purpose". Overbreadth exists "where there is no rational connection between the purposes of the law and some, but not all of its impacts" (para. 112) (emphasis by the Supreme Court). This principle recognizes that the law may be "rational in some cases, but that it overreaches in its effect in others" (para. 113). In the area of overreach, the law is to be understood as arbitrary. That is why the principles of arbitrariness and overbreadth are related (para. 117).

71The principle of "gross disproportionality" under s. 7 "targets the second fundamental evil: the law's effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported". This rule "only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure" (para. 120).

(2) The application of the governing principles from Bedford

72The appellant argues the legislation is arbitrary and grossly disproportionate in its impact on him, because it prevents him and similarly situated truck drivers from risk-avoidant speeding that in some instances would actually be consistent with the legislation's objective of improving highway safety. This is better understood as overbreadth in the Bedford analysis. The Supreme Court found in Bedford that a negative impact affecting a single person was a sufficient basis for finding a breach of s. 7 of the Charter (para. 127).

[73] On a strict and literal reading of Bedford, I am compelled to find that the appellant has established the legislation deprived him of his right to security of the person in a manner that violated one of the negative principles of fundamental justice, thereby breached his s. 7 Charter rights. Dr. Saccomanno's expert evidence confirmed Mr. Michaud's anecdotal evidence of needing on occasion to accelerate out of a dangerous situation. As the appeal judge noted, at para. 123, statistical studies have shown that acceleration to avoid collisions is needed in [page98 ]about 2 per cent of traffic conflicts, as opposed to other evasive manoeuvres such as braking or steering. That evidence is sufficient to establish the first branch of the Bedford test; by preventing the appellant from accelerating beyond 105 km/h in all situations where it is needed to avoid collisions, the legislation imposes a danger that negatively affects his security of the person.

74The second branch of Bedford addresses consistency with the principles of fundamental justice. Here, in the 2 per cent of traffic conflicts where the truck driver needs to accelerate in order to avoid a collision, the legislation appears to be overbroad by the court's definition in Bedford. (As I explain below, the actual proportion of traffic conflicts that would engage a truck's need to accelerate is smaller than 2 per cent.) For trucks already moving at the maximum speed when a traffic conflict occurs, the driver and others in the immediate vicinity on the road are put into an unsafe situation because the driver cannot accelerate; this is contrary to one of the purposes of the legislation, which is highway safety. For those in such a situation, the law contradicts its own purpose of improving highway safety; for them, the legislation is overly broad and operates in an arbitrary manner, as the appellant claims. The singular focus of s. 7 under Bedford means that it is not possible to dismiss this prospect as a de minimis consequence of a beneficial safety regulation. And for an individual truck driver in the traffic conflict, the moment of danger is real.

75Taking the Bedford analysis to its logical conclusion, even though the legislation would accomplish one of its goals by reducing the severity of collisions and another of its goals by modestly reducing greenhouse gases, it breaches s. 7 in its overbreadth. To paraphrase Bedford, truck speed limiters may be "rational in some cases", but the legislation "overreaches in its effect in others" (para. 113). In the area of overreach, the law operates arbitrarily.

(3) Conclusion on the application of s. 7 of the Charter to the legislation

76In my view, the logic of Bedford means that the appeal judge erred in his approach to the burden of proof on the appellant. It is implicit in his decision that he considered the burden to be on the appellant to prove that the regulatory trade-off in the design of the legislation results in a net negative safety outcome for Mr. Michaud.

77However, the operative trade-off, as acknowledged by the experts in their evidence, was between the general benefit of [page99 ]a reduction in the speed of trucks brought about by the use of speed limiters, and the general detriment brought about by the increase in traffic turbulence created by speed variance that is a logical outcome of the use of speed limiters. These are statistical concepts.

78The problem is that any statistical analysis of safety measures moves invariably into the balancing of risks and benefits across a population. That, as the Supreme Court clearly stated in Bedford, is the province of s. 1 of the Charter, not s. 7.

[79] According to Bedford, the focus of s. 7 is relentlessly on the individual claimant. If, as the result of legislation, a single individual is left in danger in even a single situation, then the legislation breaches the claimant's s. 7 Charter rights. Mr. Michaud meets that test in this case with respect to the speed limiter requirement for his truck. I reach this conclusion most reluctantly for the reasons set out below in the section entitled "Reflections on Bedford".

80On the strict application of Bedford, the legislation is constitutional only if it complies with s. 1 of the Charter. This gives rise to the third question for this appeal.

E. The Third Question: Does S. 1 of the Charter Save the Legislation?

81 Section 1 of the Charter requires the court to determine whether the legislation's s. 7 infringement is "reasonably and demonstrably justified in a free and democratic society". The onus is on the Crown seeking to uphold the legislation.

82The court must determine, first, whether the purpose of the law is pressing and substantial; and second, whether the means by which that purpose is advanced are proportionate. The proportionality analysis asks three questions: (1) Is the limit rationally connected to the purpose? (2) Does the limit minimally impair the right? (3) Is there proportionality between the deleterious and salutary effects of the law (Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7)?

83The Supreme Court noted in Carter, at paras. 82 and 94-95, that it would be difficult to justify an infringement of s. 7 under s. 1, but added, at para. 95: "in some situations the state may be able to show that the public good -- a matter not considered under s. 7, which looks only at the impact on the rights claimants -- justifies depriving an individual of life, liberty or security of the person under s. 1 of the Charter". This, in my view, is one such situation. More are predictable in light of [page100] Bedford's instruction that the public good sought to be achieved by the challenged law can be considered only in the s. 1 analysis.

[84] In this section of the reasons, I begin with a discussion of the relevant contextual factors relating to safety regulations, including risk assessment and regulation design, then consider why safety regulations attract a lower level of constitutional scrutiny than criminal law, and conclude by applying the s. 1 Charter analysis to the s. 7 breach in this appeal.

(1) Contextual considerations relating to safety regulation

[85] It is perhaps trite to say that s. 1 Charter analysis is contextual, fact-specific and detailed. There are two salient contextual factors relevant to this appeal. First, the area of legislative activity engaged is road safety, which shares features with safety regulation on a more general basis. Second, risk assessment is critical to safety regulation, but it is difficult and uncertain, and implicates the physical health and safety of individuals, even mortality.

(a) Safety regulation

86Safety concerns permeate the complex system of laws relating to the operation of motor vehicles, which must surely be one of the most common yet potentially dangerous activities carried out routinely by large numbers of individuals in modern society. Safety concerns underlie simple ordering rules like driving on the right hand side of the road, rules requiring obedience to traffic signals and signs, and the wide array of criminal offences relating to driving.

87Further, safety regulation covers virtually all areas of human activity in our society, from the operation of motor vehicles, as in this case, to building codes, electrical codes, fire codes, protocols and standards for drug testing and dosages, pollution, food inspection, transportation by rail or air, liquor licensing, occupational health and safety, and so on.

88Safety regulation often sets bright line rules, rather than standards. For example, the law prescribes speed limits on highways, in addition to the standard of requiring individuals to drive safely having regard to all of the relevant circumstances.

89Rules have the advantage of being certain and knowable, but rules can be both over and underinclusive given their purpose. While the purpose of speed limits is public safety, a bright line rule will not achieve that result perfectly. It might be, for example, that one driver can drive safely at the speed limit, and would be able to do so at a higher, but illegal speed. The speed limit is overinclusive for this driver. Conversely, another driver [page101] might not be able to drive safely at the speed limit, and would only be able to do so at a lower speed. The speed limit is underinclusive for this driver.

90The legislation in this case implements a safety regulation by means of a bright line rule: the speed of trucks is mechanically limited, and the enforced speed is higher than the speed limit on Ontario roads.

(b) Risk assessment

91In setting safety standards, trade-offs are often required. Two or more competing policy tensions must be reconciled in some way. In this case, the competing tensions are the need for mobility at a high speed for individuals and goods, on the one hand, and the prevention of collisions, on the other hand, which supports controlled and lower speeds.

92As Todd L. Archibald, Kent W. Roach and Kenneth E. Jull observe in Regulatory and Corporate Liability: From Due Diligence to Risk Management, looseleaf (Toronto: Canada Law Book, 2015) ("Risk Management"), at s. 1:60:

The democratic will supports the concept of speeding laws. The experts must determine what the appropriate maximum speed limits should be. A limit of 20 km/h on all highways would ensure that almost no one would die in a motor vehicle accident. The problem would be, of course, that the economy would grind to a halt at this speed . . . The ultimate calculation must assess risk to human life and health from one activity in contrast with the risk from another activity or side effect.

93At the root of a typical safety trade-off is risk assessment, which incorporates the technique of cost-benefit analysis. One consideration is the possible harm to individuals, including mortality, of the activity in question. In Simpler: The Future of Government (New York: Simon and Schuster, 2013), Cass R. Sunstein notes, at p. 156: "The best defense of cost-benefit analysis is that government should try to promote social welfare, broadly understood, and that cost-benefit analysis is a nudge toward achieving that goal -- imperfect to be sure, but valuable nonetheless." There is no way to soft-soap the mortality element, although Professor Sunstein tries to do that, at p. 158:

The key point is that in engaging in cost-benefit analysis, regulators do not really try to identify the monetary value of a human life. Instead they ask about the value of eliminating a statistical risk of death. That question, while hardly easy, is far more tractable.

(Emphasis in original)

94Not surprisingly, Ontario has a regulatory policy, one of the principles of which is that "regulations are based on [page102] assessed risks, costs and benefits". See Service Ontario, Ontario Regulatory Policy (Toronto: Queen's Printer for Ontario, 2014), online: <http:// www.ontariocanada.com/registry/downloads/ Ontario%20Regulatory%20Policy.pdf>. This is also true for federal regulations: Treasury Board of Canada Secretariat, Canadian Cost-Benefit Analysis Guide: Regulatory Proposals (Ottawa: Her Majesty the Queen in Right of Canada, 2007), online: <http:// www.tbs-sct.gc.ca/rtrap-parfa/analys/analys-eng.pdf>.

95The balancing of costs and benefits is in the very nature of regulatory design and its main challenge, as explained by Professor Sunstein in "The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers)" (2014), 114 Colum. L. Rev. 167, at pp. 168-69:

[T]here is an elaborate literature on the problems of risk and uncertainty, and also on how regulators should deal with them. Situations of risk exist when we can identify outcomes and assign probabilities to each of them. Situations of uncertainty exist when it is possible to identify outcomes but not to assign probabilities. Both situations create serious challenges for regulators. We can imagine, for example, a regulation for which estimates of both benefits and costs span a wide range. Perhaps regulators cannot identify the probabilities that ought to be assigned to various points along the continuum. Even if they can do so, it may not be self-evident what ought to be done when benefits exceed costs at some points within the respective ranges, but fail to do so at others.

(Footnotes omitted)

96The evidence in this appeal shows that there is a real debate between those who assert, like Dr. Saccomanno, that speed limiters enhance highway safety on balance, and those, like Ms. Cirillo, who assert that speed differences brought about by speed limiters cause traffic turbulence which increases the danger of collisions. That debate is found in the studies, including Dr. Saccomanno's studies, and was a live issue at the trial and the first appeal.

97The presence of real danger triggers the advisability of a safety regulation. But the absence of experience, the science, means that probabilities cannot be accurately assigned to identified outcomes. This uncertainty can be overcome with experience, as probabilities become known, and regulations can then be better tailored. Still, there is no way to eliminate the risk that is inherent in the activity, which is tolerated because of the beneficial aspects of the regulated activity.

98Further, risk analysis often implicates human mortality. At the limit of any rule or standard that is implemented by a safety regulation, the regulator countenances the possibility that someone participating in the regulated activity will be put at risk of injury or even death. [page103]

99In my view, the consequence of these realities is that much safety regulation, if it falls to be assessed under the singular approach required by Bedford, would be seen to be inconsistent with security of the person under s. 7 of the Charter.

100Regulations having an ex ante or prospective orientation can take two forms: they can impose general behavioural standards to be met, such as requiring prospective licence-holders to demonstrate the capacity for the prudent operation of a motor vehicle, or they can provide specific rules, such as the requirement to have a speed limiter set at a particular speed.³

101The legislation at issue here is a form of hybrid safety regulation. It has an "ex ante" or "precautionary" aspect, because it imposes the speed limiter requirement that would prevent a certain kind of operation of a truck. It also has an "ex post" or deterrent aspect, because compliance with the speed limiter requirement is enforced by penalties. Purely ex post regulations address safety issues by deterring unsafe behaviour with the threat of consequences.

102There is good reason to favour ex ante rules where human life or safety is at stake and where there is scientific uncertainty as to the precise nature or magnitude of the possible harms. In such cases, regulators utilize a "precautionary principle", which, the authors of Risk Management note, "tackles the problem of an absence of scientific certainty in certain areas of risk, and directs that this absence of certainty should not bar the taking of precautionary measures in the face of possible irreversible harm" (1:40). The Supreme Court has recognized the precautionary principle in the context of environmental protection regulations: 114957 Canada Ltée v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42.

103Although the problem of overinclusiveness would not arise if the legislature had chosen to penalize speeding truck drivers instead of preventing them from speeding in the first place, the regulator has determined that the objective of highway safety is best met by a hybrid regulation that couples an ex ante precaution with an ex post consequence. [page104]

(2) The constitutional scrutiny of safety regulations

104The Supreme Court has always emphasized that Charter analysis is contextual, fact-specific and detailed, and the court's proper role "will vary according to the right at issue and the context of each case" and "cannot be reduced to a simple test or formula": Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, at para. 36.

105Courts are guided by a number of cautionary principles, several of which come into play in this appeal. The first considers whether deference is due to the legislator or regulator. Justice McLachlin (as she then was) observed that deference varies "with the social context" and with the "difficulty of devising legislative solutions to social problems which may be only incompletely understood" by the court: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, at para. 135. She also observed, echoing Aristotle at para. 89 of R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3:

The lack of unanimity in scientific opinion is not fatal. Complex human behaviour may not lend itself to precise scientific demonstration, and the courts cannot hold Parliament to a higher standard of proof than the subject matter admits of.

106This court has noted that judicial deference to legislative choice is particularly appropriate where the legislation is concerned with public welfare or safety: R. v. Timminco Ltd. (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (C.A.) and Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 16893 (ON CA), 58 O.R. (3d) 37, [2002] O.J. No. 283 (C.A.).

107Courts are to "be sensitive to the separation of function among the legislative, judicial and executive branches": Doucet-Boudreau, at para. 33. The Supreme Court added, at para. 35 of Doucet-Boudreau, quoting from Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29, at para. 136: "In carrying out their duties, courts are not to second-guess legislatures . . . they are not to make value judgments on what they regard as the proper policy choice . . .". See, also, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, [1993] S.C.J. No. 2, at p. 389 S.C.R.; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at para. 51.

108The principle of separation of powers reflects the Supreme Court's understanding of the institutional competence of courts, as it noted in Doucet-Boudreau, at para. 34: "[I]n the context of constitutional remedies, courts must be sensitive to their role as judicial arbiter and not fashion remedies which [page105] usurp the role of the other branches of governance by taking on tasks to which other persons or bodes are better suited." The court explained, at para. 57, that the principle requires the judiciary to be deferential not only to policy objectives, but to the specific means chosen to achieve those objectives: "It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited."

109The Supreme Court has recognized the need for technical expertise, something that ministries, government agencies and specialized tribunals possess, but courts do not. The wisdom of this approach is illustrated by analogy to the administrative law context. The court has long required that courts defer to specialized expert decision makers in judicial review: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 54; Khosa, at para. 25; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, 2011 SCC 53, at para. 16.

110The principle of due deference has given rise to the concept of "margin of appreciation". As stated by Stratas J.A. in Paradis Honey Ltd. v. Canada (Attorney General), [2015] F.C.J. No. 399, 2015 FCA 89, at para. 135, in the administrative law context this "margin of appreciation" can be narrow or wide "depending on the nature of the question and the circumstances". He added, at para. 136, that "where the decision is suffused with subjective judgment calls, policy considerations and regulatory experience or a matter uniquely within the ken of the executive, the margin of appreciation will be broader" and "the court is less likely to reach the remedial stage".

111The Supreme Court has recognized the "conceptual harmony" between judicial review in the administrative law framework and reasonableness review in the Oakes framework, since "both contemplate giving a aemargin of appreciation', or deference, to administrative and legislative bodies in balancing Charter values against broader objectives": Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 2012 SCC 12, at para. 57.

112Another cautionary principle is based on the important distinction between regulatory and criminal offences. Regulatory offences do not attract the same level of moral blameworthiness: R. v. Sault Ste. Marie (City), 1978 11 (SCC), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59. The regulatory nature of an offence colours the judicial interpretation of its constitutionality, "with the result that regulatory offences are subject to a lower [page106] standard of Charter scrutiny": Gonthier J., for the majority in Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, at para. 57. He added, at para. 59, that "Legislators must have considerable room to manoeuvre in the field of environmental regulation, and s. 7 must not be employed to hinder flexible and ambitious legislative approaches to environmental protection." This observation has general application: the expressions "margin of manoeuvre" and "room to manoeuvre" reflect the same concerns as "margin of appreciation".

[113] With the contextual considerations about safety regulation and the cautionary principles about judicial intervention in mind, I now turn to the application of s. 1 Charter analysis to the s. 7 breach.

(3) The application of the s. 1 Charter analysis to the s. 7 breach in this appeal

114In considering the application of s. 1 of the Charter to a breach of s. 7, the court must first determine whether the purposes, goals or objectives of the limit established by the impugned legislation are pressing and substantial.

(a) Pressing and substantial objectives

115It is not disputed that the government's goals in enacting the speed limiter legislation were to improve highway safety by preventing accidents and reducing the severity of collisions, and to reduce greenhouse gas emissions. The daily carnage on our roads shows that the operation of motor vehicles is one of the most common yet potentially dangerous activities carried out routinely by large numbers of individuals in modern society. I accept that these objectives are pressing and substantial.

116The s. 1 Charter analysis next considers whether the means by which those purpose are advanced are proportionate: (1) Is the limit rationally connected to the purpose? (2) Does the limit minimally impair the right? (3) Is there proportionality between the deleterious and salutary effects of the law? I address these requirements in turn.

(b) Rational connection

117The government must establish a rational "connection between the infringement and the benefit sought on the basis of reason or logic" (RJR-MacDonald Inc., at para. 153; Carter, at para. 99). It must show that the limit is not arbitrary in the sense of being totally unconnected to the purpose for which it was enacted. In doing so, the government need only demonstrate [page107] a reasonable prospect that the limit will further the objective to some extent, not that it will certainly do so: Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, [2009] S.C.J. No. 37, 2009 SCC 37, at para. 48.

118The government argues that requiring trucks to be equipped with speed limiters set at 105 km/h is rationally connected to the objectives of the legislation. By controlling the maximum speed at which truck drivers can drive, speed limiters reduce both the frequency and severity of highway accidents. Highway accidents involving trucks can be very dangerous, and reducing the severity of accidents therefore would improve highway safety.

119The appeal judge relied on Dr. Saccomanno's evidence to conclude, at para. 63, that trucks are 20 to 30 times heavier than cars and require 20 to 40 per cent longer stopping distances. Dr. Saccomanno noted, at para. 19 of his affidavit, that "The severity of a crash is also expected to be lower when speed limiters are involved due to lower speed and reduced dissipation of kinetic energy." The trial justice's observation that, "once you are past a certain speed it does not matter" (p. 15), is not supported by the evidence and is counterintuitive. The appellant does not contest the link between speed and the severity of collisions.

120The expert evidence in this case, as accepted by the appeal judge, supports the Crown's argument. Beyond the argument about the permissible scope of the appeal addressed above in relation to the first issue, the appellant has not pointed to any palpable or overriding error in the appeal judge's finding of fact, at para. 135, that "the use of speed limiters does contribute to increased safety on the roads". Nor does the appellant point to any error in the appeal judge's finding of fact that speed limiters contribute to reducing greenhouse gas emissions.

121I therefore find that the speed limiter law is rationally connected to the goals of improving highway safety and reducing greenhouse gas emissions.

122In the minimal impairment analysis, the court asks "whether there are less harmful means of achieving the legislative goal" while at the same time deferring to the legislature in instances where it is better situated to choose among a range of alternatives: Hutterian Brethren, at para. 53; Carter, at para. 102. In order to satisfy this branch of the Oakes test, an alternative must achieve the purpose of the legislation to the same extent: Hutterian Brethren, at para. 54. [page108]

123The Crown argues that the legislation is minimally impairing in improving highway safety by reducing the speed of trucks; it regulates individual truck drivers only to the degree required to ensure they approach compliance with valid and unchallenged speed limits. It even allows them a 5 per cent margin over the highest speed limit in Ontario.

124Although the appellant did not make a fully developed s. 1 argument, the implication of his s. 7 argument is that the legislation is not minimally impairing, because in some traffic conflicts involving trucks it would be safer for a truck driver to be able to accelerate beyond the speed enforced by the speed limiter. The implicit submission is that the legislature should have found a way to achieve highway safety without totally removing truck drivers' ability to accelerate above 105 km/h when it is in the interests of safety for them to be able to so do. For instance, the appellant argues, the use of traffic police officers and radar guns would accomplish the speed reduction objective.

125There are two implied assertions to the appellant's position: first, the government's regulatory approach is unsound; and second, the 105 km/h speed limit set for the limiter is itself arbitrary. I reject both assertions.

(i) The government's regulatory approach is not unsound

126The government could choose from the three types of regulation: "ex ante" or "precautionary"; "ex post" or deterrent to be enforced solely by penalties; or hybrid, being a combination of both. The hybrid model adopted by the government combines the effectiveness of both approaches in controlling the speed of trucks. This is entirely appropriate where human life or safety is at stake, and where there is scientific uncertainty as to the precise nature or magnitude of the possible risks.

127The Highway Traffic Act and its regulations constitute a complex regulatory response to the social problem of motor vehicle and highway safety. The regulatory structure is suffused with technical expertise related to safety, as the evidence in this case shows. There was a real debate between those who assert, like Dr. Saccomanno, that speed limiters enhance highway safety on balance, and those, like Ms. Cirillo, who assert that speed differences brought about by speed limiters cause traffic turbulence which increases the danger of collisions. Where there is debate about countervailing risks in a situation of uncertainty, the regulator must make the call and did so. This is precisely where the judicial "margin of appreciation" comes to the fore and courts ought to defer. [page109]

128As the Supreme Court noted in Hutterian Brethren, at para. 37:

Where a complex regulatory response to a social problem is challenged, courts will generally take a more deferential posture throughout the s. 1 analysis than they will when the impugned measure is a penal statute directly threatening the liberty of the accused. . . . The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened. A degree of deference is therefore appropriate.

[Emphasis added; citations omitted]

129In Carter, the Supreme Court repeated, at para. 97, that "a aecomplex regulatory response' to a social ill will garner a high degree of deference", citing Hutterian Brethren. However, the court added, at para. 98, that an "absolute prohibition could not be described as a aecomplex regulatory response'".

130However, this is not a case in which the concept of prohibition can play a useful analytical role. Picking out one feature from a very complex regulatory structure is too granular an approach. Assuming that the limit could be seen as an absolute prohibition on excessive speeding by trucks, it does not automatically fail, as this court noted in Cochrane v. Ontario (Attorney General) (2008), 2008 ONCA 718, 92 O.R. (3d) 321, [2008] O.J. No. 4165 (C.A.), at para. 34 (pit bull ban).

131The legislature has determined that the objective of ensuring highway safety cannot be not achieved satisfactorily without a blanket prohibition on speeding by trucks, enforced by speed limiters. As stated in Hutterian Brethren, a minimal impairment analysis does not require the government to institute less impairing measures that do not achieve its objective.⁴

132The choice of the hybrid form of safety regulation, and the specific decision to require trucks to be equipped with speed limiters, are uniquely within the purview of the regulator.

(ii) The 105 km/h speed limit set for the limiter is not arbitrary

133In the absence of specific evidence, the trial justice noted, at p. 17, that "it can only be surmised that the 105 km/ h [page110] figure was arrived at by the government without the benefit of science". His inference might actually be true given the state of the science. If so, is it fatal to the government's position? In my view, it is not.

134Once the policy decision was made to require truck speed limiters, the obvious question was: to what speed should trucks be limited? Although, as the appeal judge noted, truck speed limiters are becoming more prevalent in North America, the absence of experience on which the science would be based meant that Ontario had to select some number. Presumably, with experience, the number could change if it turned out not to be well tailored. The setting of any number in a safety standard has a degree of arbitrariness about it, in that the number could easily be slightly higher or slightly lower, but this is not arbitrariness in a constitutional sense. There is nothing obviously outlandish or "totally out of sync" in the limit of 105 km/h.

135In oral argument, in response to a question from the bench, counsel for Mr. Michaud said that he would be content with a speed limiter set to 110 km/h, since Mr. Michaud had set his limiter at 109.4 km/h. The fact that the live dispute in this appeal could boil down to a 5 km/h difference of opinion as to the maximum speed shows how necessary the margin of appreciation for regulators really is, and illustrates the inadvisability of the courts undertaking too searching an analysis of the legislative response to public safety concerns. Those qualified to assess the evidence and determine the appropriate response are the regulators and policy makers who have developed expertise in precisely this type of regulation and the cost-benefit analysis it demands.

136I would find that the legislative choice to set truck speed limiters at 105 km/h falls within the reasonable range of policy choices open to the government. The number reflects a 5 per cent margin over the legal speeding limit and is well within the margin of appreciation or room to manoeuvre due to the regulator. I would find the speed limiter legislation to be minimally impairing.

(d) The proportionality of the legislation's effects

137The proportionality analysis under s. 1 of the Charter differs from the analysis undertaken at the second stage of s. 7 relating to the application of the principles of fundamental justice. The s. 1 analysis is prescribed by the Supreme Court in Hutterian Brethren: Is the limit on the right proportionate in effect to the public benefit conferred by the limit (para. 73)? This analysis "takes full account of the aeseverity of the deleterious [page111] effects of a measure on individuals or groups'" (para. 76). It entails a broad assessment of whether the "benefits of the impugned law are worth the costs of the rights limitation" (para. 77), or whether "the deleterious effects are out of proportion with the public good achieved by the infringing measure" (para. 78).

138The task involves balancing the harm done to Mr. Michaud's s. 7 right to security of the person, along with other truck drivers affected by the legislation, against the benefit to the public resulting from truck speed limiters set to 105 km/h.

139At its highest, the evidence shows that in 2 per cent of the traffic conflicts involving trucks, it would be less dangerous if a truck driver could accelerate to avoid a collision. It follows that in 98 per cent of such traffic conflicts, the inability to accelerate does not expose the truck driver to harm. Braking, steering and other evasive manoeuvres are sufficient.

140Moreover, the fact that acceleration is used as an evasive technique in only 2 per cent of traffic conflicts does not support the appellant's assertion that, in those situations, he must be able to accelerate up to speeds faster than 105 km/h in any event. I note that it is not clear from the evidence what proportion of the 2 per cent is made up of trucks moving at maximum speed. Traffic conflicts also happen in situations where the truck is not at maximum speed, such as entering the highway (appeal decision, para. 113) or exiting (appeal decision, para. 114). The actual proportion of traffic conflicts that would engage a truck's need to accelerate would therefore be smaller than 2 per cent. The 2 per cent statistic might overstate the deleterious effects on Mr. Michaud and his colleagues having their speed limiters set to 105 km/h.

141With respect to Ms. Cirillo's contention that the speed limiters cause traffic turbulence, which is itself dangerous, the appeal judge found, at para. 70, that Ms. Cirillo "was not aware of any studies on speed limiters at all let alone a study that showed that speed limiters make speed variance more likely or that accident rates increase". The appeal judge found, in the context of making out Mr. Michaud's s. 7 claim where the onus was on the appellant, at para. 102, that Ms. Cirillo did not offer any evidence that speed limiters lead to the speed differential she identified as a greater cause of accidents than speeding. Finally, the appeal judge found, at para. 104, that, in light of Dr. Saccomanno's evidence, Ms. Cirillo did not establish that speed differential caused more accidents than speeding.

142The evidence shows that forced speed reduction for trucks saves lives. As noted, the appeal judge accepted Dr. Saccomanno's evidence that speed limiters contribute to increased [page112] highway safety (paras. 135, 140). There was undisputed evidence that speed limiters decrease the severity of accidents. There was also evidence that speed limiter reduce the frequency of accidents. The appeal judge accepted this evidence (para. 60).

143In light of these findings, the established salutary effects of the speed limiter legislation outweigh its less well-established deleterious effects. There is no evidence that the effects of the speed limiter legislation are "out of all proportion" to its objectives: Bedford, at para. 22.

(e) Conclusion on the s. 1 Charter analysis

144To summarize, I would find, on the evidence, that the purposes of the speed limiter legislation for trucks, being the improvement of highway safety and the reduction of greenhouse gases, are pressing and substantial. The means by which these purposes are advanced are proportionate in that the limiter legislation is rationally connected to the purposes; in terms of the margin of appreciation due to the regulator, the speed limiter legislation minimally impairs the s. 7 right to security of the person of truck drivers; and there is proportionality between the deleterious and salutary effects of the legislation, since the public benefits associated with improved highway safety exceed the detrimental effects on the s. 7 right of truck drivers.

145I would uphold the legislation under s. 1 of the Charter. The Crown has justified the breach of Mr. Michaud's s. 7 Charter right as a "reasonable" limit that is "demonstrably justified in a free and democratic society" under s. 1 of the Charter.

(4) Reflections on Bedford

146Earlier, I expressed my reluctance to find that the legislation breached s. 7 of the Charter, but said that I felt compelled to do so based on the Supreme Court's decision in Bedford. In Canada v. Craig, [2012] 2 S.C.R. 489, [2012] S.C.J. No. 43, 2012 SCC 43, at para. 21, intermediate courts of appeal were instructed to apply the law the Supreme Court laid down, but then explain why the court finds doing so to be "problematic". I offer these observations in that spirit.

147 Section 7 of the Charter uses strong language in saying: "Everyone has the right to . . . security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." It seems strangely incongruous to consider highway safety regulation, or any safety regulation, as "depriving" anyone of "security of the person" or of engaging the "principles of fundamental justice" in the sense [page113] demanded by s. 7, especially since it is regulatory and not criminal law.

148Mundane but critically important safety regulation seems to back into problems with s. 7 for two reasons, as explained above: first, as an artifact of the nature of risk assessment and risk management, which often implicates human mortality, because at the limit of any rule or standard that is implemented by a safety regulation, the regulator countenances the possibility that someone will die or be killed in the regulated activity; and second, as a result of regulatory design. When a regulator uses a precautionary or hybrid regulation, such as the one in issue in this appeal, the regulator chooses a pro-active bright-line rule in preference to a general behavioural standard, even though such a rule is usually overinclusive and errs on the side of safety. These are legitimate and reasonable uses of governmental authority.

149In my view, these typical features of safety regulation do not truly engage either deprivation of security of the person or the constitutional principles of fundamental justice; the idea that they do risks trivializing these concepts.⁵

150The incidental effect of the Bedford analysis is that many safety standards that are based on risk assessments will be subject to challenge and to judicial scrutiny under s. 7 of the Charter. The problem comes from two different aspects of the analysis. The first is its singular or individual focus coupled with the court's description of arbitrariness, overbreadth and gross disproportionality as principles of fundamental justice. The second relates to an apparent softening of the strong Charter language of deprivation by the looser language of "limits" or "negatively impacts" (Bedford, para. 58). A negative impact seems much easier to establish than a deprivation.

151Perhaps the way forward for the Charter evaluation of safety regulations is to recognize them as a distinct category of legislation, and to require the claimant to establish overbreadth or gross disproportionality under s. 7 not on an individual basis, but on a more general basis, balancing the effects on the individual claimant and similarly affected persons together against the effects of the regulation on the intended beneficiaries. (I recognize this would retrench on the Supreme Court's [page114] restatement of the respective roles of s. 7 and s. 1 of the Charter in Bedford.)

152Outlier situations, in which a legislature or regulator uses a safety regulation for an improper collateral purpose, or where the regulator makes a gross error, are imaginable. But these would be amenable to judicial sanction under the ordinary principles of administrative law. Cases have held that governments ought to be free to make public policy choices in regulating plainly hazardous activities. A Charter response seems exaggerated and unnecessary.

153In R. v. Transport Robert (1973) Ltée (2003), 2003 7741 (ON CA), 68 O.R. (3d) 51, [2003] O.J. No. 4306, 180 C.C.C. (3d) 254 (C.A.), this court cautioned against overly enthusiastic judicial review in the context of road safety. In that case, legislation creating absolute liability if a truck driver's wheel fell off during travel was challenged under s. 7 of the Charter. The claimants argued that the penalty created psychological stress and thereby infringed their security of the person. In response, Laskin J.A. wrote, at para. 29:

The right to the security of the person does not protect the individual operating in the highly regulated context of commercial trucking for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government regulation of that industry. As Lamer C.J.C. said in G. (J.) [New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46] at para. 59, "[i]f the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review and, in the process, trivializing what it means for a right to be constitutionally protected."

[Emphasis added]

154I agree.

F. Disposition

155To recapitulate, I would reject the appellant's first ground of appeal. The appellant has not established that the appeal judge committed a palpable and overriding error, or an error in principle, in the way that he approached the evidence or his role. The appeal judge did not exceed the scope of appellate review by the Ontario Court of Justice on a Part I POA offence under s. 135 of the POA.

156I would give effect to the appellant's second ground of appeal respecting the application of s. 7 of the Charter. As the result of legislation, Mr. Michaud meets the Bedford test, since the speed limiter requirement for his truck leaves him in physical danger in some situations. [page115]

157I would uphold the legislation under s. 1 of the Charter. The Crown has justified the breach of Mr. Michaud's s. 7 Charter right as a "reasonable" limit that is "demonstrably justified in a free and democratic society" under s. 1 of the Charter. Accordingly, I would dismiss the appeal.

Appeal dismissed.

End of Document

Footnotes

I observe that even if the appeal had proceeded under Part III of the POA, the appeal judge would have been obliged to establish a process for the reception and testing of the fresh evidence. The method he used in this appeal would have been consistent with his authority under Part III of the POA and with the powers of an appeal court under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46, on which Part III is modelled.
In Bedford, the court referred to arbitrariness, overbreadth and gross disproportionality variously as "values" (paras. 96, 105), "principles" (paras. 106, 107) and "concepts" (para. 97), which implies that they are analytical synonyms.
The authors of Risk Management use speed limiters as an example of a "rules-based ex ante solution" (2:15:30).
I note in passing that the trial justice impugned the government's assertion that it relied on 18 months of research to back the need for introducing speed limiters, "yet Dr. Saccomanno's research was not published until after the introduction of the legislation in 2009 and refers to the introduced legislation" (p.16). Regulators have knowledge, information, experience and expertise on which they can act without waiting for published peer-reviewed articles in professional journals.
See Law Society of British Columbia v. Andrews, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, at para. 43, where McIntyre J. adopted a description of s. 15, which I would paraphrase and apply here: The broader the reach given to s. 7, the more likely it is that it will be deprived of any real content.