Court Information
Ontario Court of Justice
Date: 2014-10-30
Court File No.: City of Kenora 120061/130106/140086
Parties
Between:
Her Majesty the Queen
— And —
Lakeside Rat Rapids Enterprise Ltd.
Before: Justice of the Peace D. J. MacKinnon
Heard: September 12, 2014
Reasons for Judgment Released: October 30, 2014
Counsel
Prosecutor: S. Down
Representative, Lakeside Rat Rapids Enterprise Ltd.: R. Noel
JUSTICE OF THE PEACE MACKINNON:
Introduction
[1] The Defendant, Lakeside Rat Rapids Enterprise Ltd., faces six counts under section 119(4) of the Highway Traffic Act of Ontario (HTA), for violations of s.119(1) of the Act. The corporation entered not guilty pleas through its president, Amos Bange, and the matter proceeded to trial. The trial was held on September 12, 2014 and I reserved my decision to today's date.
[2] The charges allege that the commercial vehicles owned by the Defendant company were over the allowable weight during the freeze-up period. One commercial vehicle, Licence #7576TW, is alleged to have been overweight on February 28, 2012, January 9, 2013, January 16, 2013 and March 12, 2013. The second vehicle, Licence #AC24532, is similarly alleged to have been over-weight on January 14, 2013 and March 3, 2014.
Nature of the Charges and Onus
[3] The parties agree that a charge under s.119 is a strict liability offence and the onus is on the prosecution to prove the elements of the offence beyond a reasonable doubt. The characterization of the offence as one of strict liability accords with the decision of the Ontario Court of Appeal in R. v. Nickel City Transport (Sudbury) Ltd., and this court adopts the reasoning in that decision. If the elements of the offence for each date are proven, the Defendant is entitled to raise, and does raise, the defence of due diligence.
Matters Not in Issue
[4] Following the conclusion of evidence in the trial, the defence rightfully conceded that there was no dispute in regard to a number of elements of the offences. Those elements are:
The vehicles with registered plates of 7576TW and AC24532 are commercial motor vehicles as defined by the Highway Traffic Act. Certified copies of the vehicle registrations were filed as Exhibits 2, 9, 10 and 14.
The Defendant, Lakeside Rat Rapids Enterprise Ltd., is the owner of the commercial motor vehicles 7576TW and AC24532, as set out in the certified Ministry of Transportation (MTO) documents.
The vehicles were operating on Highway 17 and Jones Road, which are highways under the Highway Traffic Act.
The vehicles were transporting raw forest products.
The transportation of the raw forest products by the Defendant occurred during freeze-up. This was confirmed by the designation of the freeze-up periods as set out in Exhibits 3, 4, 11, 12, 15, and 16.
[5] The court finds that these elements of the offences have been proven by the prosecution beyond a reasonable doubt.
Matters in Issue
[6] In regard to the elements of the offence to be proven by the prosecution, the defence takes the position that the weigh scale records for the subject vehicles, put in evidence by the prosecution from the weigh scales at the Weyerhaeuser mill, are inaccurate and should not be relied upon by the court. The defence bases this argument largely on the absence of proof of the calibration of the scales, and prior problems with these scales. The defence claims that without consideration of the weigh scale records, the elements of the offence are not made out beyond a reasonable doubt.
[7] If the court finds that the elements of the offence are proven, the Defendant relies upon the defence of due diligence. In other words, on a balance of probability, did the Defendant corporation take all reasonable steps to ensure that the loads were within the limits set out in s.119?
Evidence at Trial
Prosecution Witness - Officer Dennis Dobney
[8] Officer Dobney has been an enforcement officer for the Ministry of Transportation for 27 years, and in the Vermilion Bay, Dryden and Kenora areas since 1997.
[9] Pursuant to an agreement between the Northwestern Ontario Log Transportation Association (NOLTA) and the Ministry of Transportation, Officer Dobney testified that he receives weight records from the computer at the mill scales at the Weyerhaeuser mill in Kenora. He compares the load slips from Weyerhaeuser with the information on file with MTO to see if any loads are over 110% of the gross vehicle weight allowed by s.119 during freeze-up. These charges were laid after his review of the records provided to him by the mill, and his further investigation.
[10] The purpose of the agreement between MTO and the NOLTA is to provide operators of raw forest products (roundwood only) with an opportunity to become compliant with legislated gross vehicle weights and axle load limits. It states, "It is expected that with industry commitment to self-regulation of gross vehicle weights in addition to ministry vehicle weight enforcement measures, the frequency and severity of gross and axle overloads will diminish significantly." The Defendant was a member of NOLTA during the period covered by these charges.
[11] Officer Dobney described that the only entry to the weigh scales at Weyerhaeuser is off of Jones Road. The scale house is located between the inbound and outbound scales. The purpose of the system is to be self-serve. Each scale operates separately.
[12] Officer Dobney was trained in regard to the Weyerhaeuser scales by the scale master, he saw the process in action and weighed a vehicle there himself. He has watched as vehicles entered, were weighed and then left the scale.
[13] The officer described the process for the weighing of a load. The driver waits for the green light, drives the truck and trailer up onto the inbound scales and stops. The gross weight shows up on a screen. The driver enters the scale building and inputs his identification into the computer. He enters the bill of lading, the species of wood and the source. He selects his name from a pre-populated list. Information such as the maximum weight for the vehicle is populated by the computer. The driver is asked to confirm that the information is correct.
[14] After the weighing, the driver enters his truck and uses his pass key to have the gate open to drive off. He notifies the yard workers that he is coming to be unloaded. The trailer is un-loaded, he cleans up his deck and returns to drive onto the outbound scale. The outbound scale weight is shown and the driver enters the scale house, confirms the computer data which includes inbound and outbound weights, and receives two copies of the load slip. He puts one in the tray and keeps the other. The driver swipes to open the gate and leaves the mill yard.
[15] As to the accuracy of the scales, Officer Dobney has been present when the scales were tested and calibrated. He believes that the calibration date is posted on the wall of the scale house. As far as he knows the scales are 'legal for trade'.
[16] Officer Dobney stated that if a driver believed that the scales were inaccurate, he or she could contact the scale master, Dave Ouimette, on the two way radio. The load can be weighed on the outbound scale for accuracy if needed. The Ministry of Transportation is sent a notification if there is any problem with the scale. Any weights during that period are not processed. He does not know what the tolerances are for air on the scale, but believes that it would be lower than the amounts alleged here.
[17] The maximum registered gross weight allowed for any commercial vehicle is 63,500 kg, and during freeze-up the maximum weight permitted is 69,850 kg or 110% of the maximum.
[18] On cross examination, Officer Dobney admitted that, while he had received some training on the scales at Weyerhaeuser from the scale master, that he was not qualified for that exact scale. He agreed that cameras at the site would have been helpful. He admitted that when he had testified in another case dealing with Lakeside Rat Rapids Ltd., that documentation was presented that dealt with the calibration of the scales, and the scales were in excess of tolerances. He also confirmed that there was no document before the court certifying that the scales were accurate and "legal for trade". Accuracy was important he agreed.
[19] When questioned about the process by which a driver could complain about the scales, Officer Dobney testified that he observed a driver have a problem with resetting something on the computer. The scale master or operator/unloader was contacted and the tractor trailer unit was put on the outbound scales and the weights compared. He admitted that he did not know the skills of the operator who would be called if the scale master was not available.
[20] During cross-examination Officer Dobney was asked why the load slips in regard to AC24532 for January 14 and 16, 2013 and March 3, 2014 differed from the amounts set out in the charges. He replied that the MTO registration documents showed the allowable gross weight of the vehicle to be 63,500 kg, but the load slip calculations showed the allowable weight of 62,700 kg. This was an error in the Weyerhaeuser computer. He corrected the errors in the calculation for the charges.
Defence Witness - Amos Bange
[21] Mr. Bange is the president and a shareholder of Lakeside Rat Rapids Ltd. He has been in operation since 2003, transporting round wood cut loads, which are 8 foot lengths or 105 inches, from the bush to the mill. He has two trucks: one is a self-loader with a trailer which can only be used together and the other is a 3 axle tractor and a 5 axle trailer. The trucks deliver about two loads per day during the freeze-up period.
[22] On February 28, 2012 he was driving. His day always starts with a safety check on the truck and completion of a pre-trip. If there is any safety issue the truck does not move. On that day there was no safety issue. With this unit (7576TW), he gets on the picker and loads the truck and trailer. The wood may be deep in the bush and it is brought roadside to be cut. The terrain may be rough and crooked. There are no scales in the bush.
[23] Air gauges are attached to air bags on each axle. The gauges identify the weight. The truck has to be on a level area to get accurate readings from the gauges. The gauges cannot be relied on to determine how much to load onto the truck and trailer, as he is loading from the picker. In some areas you have to load half a metre higher depending on whether the logs are dry or wet. He gets an "eyeball" feel for the weight. He has had load slips from the same block that are 3000 kg heavier because of the wetness of the logs.
[24] On this day as a result of his gauges, he chained up to the limit and headed to the mill. On the way to the mill, the hills between Dryden and Kenora test the weight and an experienced driver can tell what it is. Air gauges should be accurate within 1000 to 2000 kg., but if the load is heavier in the back or the front they can be wrong. They do not measure the snow and ice in winter wheels, but only record the weight pushing down on the axle. An overweight of 1500 kg can represent as little as 2 to 3 logs, more if they are light. Between Vermilion Bay and Kenora, the gauges can show that he picked up 1500kg in snow and ice. Drivers clean off before going through the scales if possible.
[25] If the gauges say it is too heavy, some logs will be taken off. This is risky as, without a loader, the operator must climb on the stack and remove logs by hand. A driver is not supposed to remove wood and leave it on the side of the road, as it belongs to the Crown and is on the bill of lading until delivered to the mill yard. The company tries everything in order to avoid being overloaded. Many times when he thought he was too heavy and threw logs off, he wasn't over the weight limit.
[26] He can go through the scales at Vermilion Bay to check his load, but often the outside display does not work and you have to look in the window of the building to try to see the reading. In addition Mr. Bange testified that the Vermilion Bay scales can be out as much as 1000 kg – sometimes heavier and sometimes lighter – which is perplexing as the load should be heavier than it is when arriving at Kenora due to the burning of fuel. The company's goal weight is 105% of the registered gross weight in freeze up, due to the ice and snow carried on the load.
[27] Mr. Bange has never made a complaint about the scales at Weyerhaeuser and he was not aware of any process for complaints. Occasionally there have been malfunctions where the computer screen freezes up and has to be rebooted. There are two scales at the mill and he has had to go on both scales on a few occasions where the weight was off on the inbound scale and accurate on the outbound scale. The inbound scale was closed after that.
[28] Portable scales are not used. The scales at Domtar in Dryden can be used but with no gate card it is more difficult.
[29] If his employees have loads over 105%, he talks to them.
[30] On cross examination, Mr. Bange agreed that he was in Wabigoon Township north of Vermilion Bay on February 28, 2012 and, even though he entered Highway 17 west of the scales, he could have driven to the scales there if he thought he was heavy or even close. If he was passing a scale he would stop there to check his weight, but in Vermilion Bay the display does not work often in the winter. He agreed it would be prudent to check and does not recall if he did.
[31] On January 9, 2013, Mr. Bange indicated that he was at Lakeside/Snider as set out in the load slip, which is north on Richan Road in Dryden. He would come out to the highway west of the scales at Domtar and did not have a card. He agreed it would be prudent to check the weight if close to the scales. He could not recall if he used the scales at Vermilion Bay.
[32] On March 12, 2013 he was east of the village of Wabigoon and had to come through Dryden. He could not recall if he stopped at Domtar, but usually he would go through the scale at Vermilion Bay if he thought he was at risk.
[33] He agreed that sometimes the loads he thinks are light are over. In winter they like to load as close to 105% as possible. Snow and ice can accumulate up to 1500 kg and 5% is 3000 kg. When asked if the government estimate of an additional 10% for ice and snow during freeze-up should mean that he load for 100% to be sure he is under, Mr. Bange stated that he would be too much underweight on every load.
[34] On redirect, Mr. Bange agreed that nothing on the days in question alerted him that he should have the load checked.
Defence Witness - Greg Obie
[35] Mr. Obie has been a truck driver for thirty years and employed by the Defendant corporation for two years.
[36] Before he heads to the bush, he checks the oils, fills out the log book and does a circle check of the truck. There are some things that have to be repaired before heading to the bush and others that he tells Amos about. Otherwise, he heads to the bush and picks up his load.
[37] To determine if he has the best weight in the truck, he assesses it by eye. He also has gauges in the truck but the ground is usually so rough that it is hard to rely on the gauges. If he is hauling from the same area for a while, he can get pretty close to the weight by eye. He can move ahead or back to look for level spots in order to use the air gauges.
[38] If he thought he was overweight, Mr. Obie would not leave the bush but would have the operator take off some of the wood. He has stopped along the highway a few times to check the load using his gauges, and also has gone once in a while through the scales at Vermilion Bay. If it is overweight, he throws wood off and wears a fall restraint when he does so. This is done at a load check area.
[39] Mr. Obie was the driver on January 14, 2013 and on March 3, 2014 but he could not recall specifically the duties he performed that day. However, he knows that he would not have gone to the mill if he thought he was overloaded.
[40] In regard to the Vermilion Bay scales, he testified that he has thrown wood off as a result of believing he was overweight from the scale reading there, only to find out that he was lighter at the Weyerhaeuser mill scales. When there are errors with the display, he has tried to look in the window but could not see because of a piece of paper covering up the inside display on the computer. He agreed on cross examination that this happened on one occasion.
[41] In winter Mr. Obie testified that there is less wood put on to allow for snow buildup. On days when there is snow it can affect the accuracy of the gauges, but on a day without precipitation, for the most part, they are pretty close.
[42] The policy of the company is not to go overweight on your loads. It is hard on the trucks if you do. He has had loads of 98% or 99% of the allowable weight. When 10% above is allowed they are told to go for 5% over the allowable weight and definitely not over the 10%.
[43] In regard to the Weyerhaeuser mill scales, he testified that he had not had any issues with the scales, but the scale master had told him to use the outbound scale when the inbound has been off. If the scale was off, he would ask Dave Ouimette about it and talk to other drivers about the problem. He can usually weigh in at the Dryden mill scales if he thinks the gauges are out. He did not know about a formal complaint process regarding the Weyerhaeuser mill scales as he has not run into problems.
[44] On cross examination, Mr. Obie indicated that he transported about two loads a day during the freeze-up period. In regard to stopping at the scales on the way to Kenora, he testified that some months he does not stop because, for the most part, the air gauges are not bad. Occasionally the gauges can throw your weight up by 1000 lbs over and you can never be guaranteed of your weight. He agreed with the prosecutor that it would be more prudent to stop at another scale to weigh the load. Also, because the extra 10% during freeze-up is for snow and ice, he agreed that the target weight of the load should be 100% rather than 105%.
Elements of the Offence
[45] The defence position is that the weight of the vehicles on the dates in the information, have not been proven because the Weyerhaeuser weigh scale results cannot be relied upon. Has the prosecution proven the elements of the offence beyond a reasonable doubt?
The Law Regarding the Offence of Over Weight Vehicle
[46] The first issue for the court to determine is whether the exact weight of the vehicle is required for a conviction of overweight vehicle under these provisions of the HTA.
[47] In Her Majesty the Queen v. Hovila and Tasanko Trucking Ltd., Laskin J.A., in refusing leave to appeal, stated the following:
...I also think there is good reason to doubt that the Crown must prove the exact excess weight alleged in the information to sustain a conviction. Since freeze-up was in effect in February 1993 Hovila was entitled to the benefit of the 110 percent provision in s.119(1) of the Act. The weight authorized by s.119(1) was 66,000 kg. Therefore it is arguable that the Crown could prove an excess weight of only 14,820 kg rather than 20,820 kg. Even if the Crown can only prove the lesser amount I doubt whether that is fatal to a conviction because of the curative provisions of the Provincial Offences Act or because the amount of the excess is not an essential element of the offence, though it would be relevant on penalty.
[48] The charging section related to an offence under s.119(1) of the HTA is s.119(4). It states:
(4) Prohibition – No vehicle or combination of vehicles having a weight in excess of that authorized in subsection (1) shall be operated on a highway.
[49] While there is a prescribed weight under s.119(1) of the HTA, the charging section refers only to weight in excess of that amount. This wording concurs with the reasoning of Judge Laskin in that a conviction can be founded upon the vehicle being overweight, even if the exact amount is not identified.
[50] Speeding offences are similar to this charge because they also utilize an instrument for measurement (radar) and have an offence section (under s.128(1)) for driving in excess of a regulatory speed, and a penalty section (under s.128(14)) which relates to the measurable unit.
[51] The elements of a speeding offence under s.128 of the HTA were considered in the case of York (Regional Municipality) v. Winlow, 2009 ONCA 643, a case ten years after Hovila. In Winlow, Laskin J.A. addressed the issue of whether the exact speed was necessary to a conviction for speeding. He stated:
There appears to be a small debate among the justices of the peace and the Ontario Court of Justice judges over whether the particular rate of speed at which a defendant is charged with driving is an essential element of the offence of speeding or a particular relevant only to penalty. In the vast majority of cases, justices of the peace and Ontario Court of Justice judges have concluded that the offence is speeding contrary to s.128(1) of the HTA, and that the actual rate of speed matters only on penalty...I agree with the majority.
[52] Similarly in this case, s.119(4) is an offence provision that does not require that the exact weight over the allowable weight be proven as an element of the offence. In practical terms this simply means that the exact kilograms of overweight for a vehicle which is alleged on the information, is not necessary to be proven for a conviction. The exact amount of weight is necessary for imposition of a fine.
[53] The next issue is whether proof of the calibration of the weigh scales is necessary to accept the recorded weights for the purposes of a conviction or for sentence.
[54] In the case of R. v. Dagmar Construction Inc., [1995] O.J. No. 4576 (OCJ), the Crown appealed the dismissal by the justice of the peace of a charge of overweight vehicle. Zimmerman Prov.J. reviewed the relevant caselaw and found:
It is my opinion that the effect of those cases is that, where there is evidence with respect to the accuracy of such instruments as weigh scales and speed devices, with respect to the efficiency and accuracy of those devices that is provided to a court, there is prima facie evidence as to that accuracy which would lead the court to presume that it is accurate...it is a "rebuttable presumption"...
[55] In the facts of the Dagmar case, the provincial offences officer took the accused's vehicle to the nearest weigh scales and weighed it. Although the officer was not able to say when the scales had last been calibrated or adjusted, he testified that he knew in fact that they were calibrated and adjusted from time to time and that he had been present when those calibrations and adjustments were done. If there seemed to be a discrepancy between the waybill and the scale reading, the scales would be adjusted. In regard to this evidence, the appeal judge stated:
... Although he (the provincial offences officer) could not, as I have indicated, in his evidence say that he had any knowledge as to when the scales were last calibrated, he had no reason to believe that there was any maladjustment of the scales, based on the evidence as to the manner in which they determined whether the scales were accurate or not on any given day...the justice of the peace...erred in failing to consider the prima facie evidence before him and, in the absence of any other evidence which would suggest that the scales were not reliable and accurate on that day, to assess whether or not that prima facie evidence was sufficient for him to come to a conclusion beyond a reasonable doubt...
[56] The calibration of weigh scales was again the subject of an appeal in R. v. B. Gottardo Const. Ltd., [2004] O.J. No. 2139 (OCJ). The Defendant had argued that there was no evidence that the scales were working properly, that they were capable of measuring a dual axle trailer or that there had been proper calibration before the weight was taken. Knazan J. relied on Bland where the court held that proof of calibration of a speedometer was not necessary to make out a prima facie case. He stated:
As I have already decided above that these scales fit into the class of mechanical devices discussed in Bland, there was no need for such evidence to make out a prima facie case. Lack of evidence of calibration may still be relevant when determining whether or not the case has been proven beyond a reasonable doubt... The evidence of excess weight was sufficient for a prima facie case, and in the absence of evidence to the contrary, conviction.
[57] Proof of calibration is not necessary for a prima facie case. It may be relevant to proof beyond a reasonable doubt, if there is some evidence which suggests some maladjustment or inaccuracy.
[58] The leading case in regard to the reliability of mechanical instruments is R. v. Bland, where it was held that, "...if evidence is given that a mechanical device such as a watch or speedometer ... recorded a particular time or a particular speed, which it is the purpose of that instrument to record, that can by itself be prima facie evidence, on which a Court can act, of that time or speed."
[59] In a case dealing with portable scales, Blair J.A. of the Ontario Court of Appeal in R. v. R.W. Tomlinson Limited, [2010] O.J. No. 6172 refused leave to appeal and confirmed Bland and Nicholas v. Penny in that the recordings of a particular instrument, "by itself can be prima facie evidence on which a court may act in the absence of some evidence elicited on cross-examination or by defence witnesses, that would suggest the measurements were inaccurate...".
[60] Blair J.A. also noted that issues related to the training of the operator, whether the truck's brakes were properly configured during testing, or whether the terrain where the weighing took place was uneven, were best left to be dealt with by way of defence.
[61] The recordings by the weigh scales are prima facie proof of the weight of the vehicles and, if there is no evidence suggesting the measurements are inaccurate, the recordings can provide proof of the offence beyond a reasonable doubt.
Applying the Law Regarding Over Weight Vehicles
[61] All of the recorded weights for the vehicles of the Defendant came from the privately owned Weyerhaeuser mill scales during the freeze-up period. The allowable weight for each vehicle owned by the Defendant, at 110% of the registered weight, is 69,850 kg per vehicle.
[62] The weigh scales at the Weyerhaeuser mill are instruments designed for the purpose of weighing commercial trucks and trailer units, and as such their readings are prima facie proof of the weights of the vehicles on the dates of the charges.
[63] The weights recorded by the Weyerhaeuser weigh scales for the vehicles of the Defendant were:
| Date | Registration | Weight |
|---|---|---|
| February 28, 2012 | 7576TW with trailer | 70490 kg |
| January 9, 2013 | 7576TW with trailer | 70930 kg |
| January 14, 2013 | AC24532 with trailer | 70730 kg |
| January 16, 2013 | 7576TW with trailer | 70540 kg |
| March 12, 2013 | 7576TW with trailer | 70350 kg |
| March 3, 2014 | AC24532 with trailer | 70240 kg |
[64] The defence has submitted that the weights on the load slips should not be trusted because there was no proof of calibration or that the scales were operating properly.
[65] Officer Dobney testified that he has been at the Weyerhaeuser mill scales when they were being tested and calibrated. He believed that the calibration certificates were posted on the wall of the scale house and that calibration was done regularly. Officer Dobney indicated that if there was a problem with the scales, his Ministry would be notified and any over-weights from that date would not be prosecuted. The MTO was not notified of any problem and Officer Dobney had no reason not to believe the accuracy of the scales.
[66] The case at bar is similar to the decision in Dagmar. Even though Officer Dobney did not calibrate the scales himself, nor did he see the calibration done on the days in question, the fact that the scales were regularly calibrated and adjusted and no inaccuracy was reported, supports the presumption of accuracy that applies to the scale results.
[67] Has the Defendant adduced evidence that the scales were maladjusted or inaccurate on the offence dates?
[68] There was no evidence that Mr. Bange, Mr. Obie or any other drivers complained about any inaccuracy of the scales on the days in question. The self-serve process not only posts weights on the screens for the inbound and outbound drivers to see, but the driver confirms the information on the computer and receives a copy of the load slip. There is no evidence of any dispute by the Defendant's drivers at the time or later with the weights recorded for the Defendant's vehicles on the load slips. No other weights, or the degree to which the weights were off, has been presented by the Defendant. There is no reason to doubt the weight records.
[69] There is a vested interest in the mill to ensure accuracy of their scales, so that there is not an over payment of loads, and there is a vested interest in the log transporters to ensure that the scales accurately show the weight of the loads so that there is no under payment for the loads. The more that the load weighs, the greater the payment to the NOLTA member.
[70] Given these economics, and the fact that the agreement between the MTO and NOLTA provides for the use of these scales, it is likely that any malfunction of the scales would have been identified.
[71] The defence suggested that the reason that no complaint was made was because of a lack of complaint process.
[72] There were a number of options available if a driver believed that the load slip, and thus the scales, did not accurately reflect the weight of his load. The driver could contact the scale master or call the yard for assistance. The corrective measure would be to weigh the incoming load on the outgoing scale – a scale calibrated and operated separately.
[73] Neither Mr. Bange nor Mr. Obie gave evidence of any occasion when they had to complain about the Weyerhaeuser scales. In a self-regulating regime, the NOLTA members have an interest in bringing concerns about the scales forward, as NOLTA members have agreed to make all information from the scales in the Weyerhaeuser yard available to the MTO for enforcement purposes.
[74] The presumption that the weigh scales at the Weyerhaeuser mill were operating and recording the weights of the Defendant's vehicles accurately on the dates in question has not been rebutted nor has there been evidence submitted suggesting that the scales were not operating accurately on the dates of these offences. Therefore the court finds that the weights for the vehicles of the Defendant on the dates of the offences, as evidenced by the load slips, and set out in paragraph 63 above, are accurate. The vehicles were all over the allowable weight under s.119 on the days in question and the essential elements of the offences are proven beyond a reasonable doubt.
The Due Diligence Defence
The Law Regarding Due Diligence
[75] If the court is satisfied that the prosecution has proven the elements of the offence beyond a reasonable doubt, the defence is entitled to put forward a defence of due diligence.
[76] The Supreme Court decision in R. v. Sault Ste. Marie (City), provided a categorization for regulatory offences that included strict liability offences. In a strict liability offence such as the one at bar, the prosecution is required to prove that the Defendant committed the impugned act beyond a reasonable doubt, and then the Defendant has the opportunity to avoid conviction by showing, on a balance of probabilities, that he took all reasonable steps to avoid the contravention. At page 1326, the court said:
The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.
[77] The court must acquit if, on a balance of probabilities, it is shown that:
a) the defendant believed in a mistaken set of facts which, if true, would render the act or omission innocent, or
b) the defendant took all reasonable steps to avoid the particular event.
[78] Doherty J.A. in R. v. Raham, 2010 ONCA 206 describes the first part of the test as a "reasonable mistake of fact claim", and in regard to the second part of the test, he states:
The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant's conduct in a larger sense. The defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense.
[79] In other words, the elements of the due diligence defence must be directly related to activities on the date of the offence, not to whether the Defendant is generally law-abiding.
Applying the Law Regarding Due Diligence
[80] Did the Defendant corporation take all reasonable steps to ensure that the loads were within the limits set out in s.119?
[81] The Defendant took a number of steps to ensure that the loads were compliant:
a) air gauges were installed on the axles to provide weight measurements;
b) drivers knew that they had to knock off ice and snow to reduce the weight;
c) drivers would remove logs if they thought that the truck was overloaded;
d) the drivers were experienced and could eyeball the weight of the loads or assess them as they drove the hills of the highway;
e) the company established 105% as the goal weight, 5% below the legal limit.
[82] There were problems with these measures.
[83] The witnesses admitted that the air gauges gave weight readings only for the weight on the axles, and not weights on or in the wheels including ice and snow. The air gauges did not provide accurate readings if the truck was on uneven ground or if the load was heavier in the front or in the back. The gauges could be out as much as 1000 to 2000 kg. per load. Added to this potential for error, ice and snow can add 1500 kg to a load between Vermilion Bay and Kenora. A log or two extra can weigh 1500 kg. Wet logs can weigh more than dry logs – a difficulty for the "eyeball" method of loading.
[84] Mr. Bange maintained that a goal of 100% in winter would mean he would be underweight on every load, while Mr. Obie conceded that 100% should be the target weight rather than 105%. Mr. Bange estimated that 5% would represent about 3000 kg. and 10% would represent about 6000 kg.
[85] The court acknowledges that the forest industry operates on a very thin edge of profit, where time and weight mean money. Knowing all of the vagaries of these methods, however, it was incumbent on the prudent operator to utilize any other available methods to verify the load weights. This included using other scales in operation between the village of Wabigoon to the east on Highway 17, travelling west through Dryden and Vermilion Bay to Kenora.
[86] The scales in Dryden at the Domtar mill are identified in the NOLTA agreement. While it may be inconvenient to have to call the scale master to allow entry to the scales, it appears that the scales are available.
[87] The court is not convinced that the scales in Vermilion Bay were not operating properly on the days in question. It appears that no attempt was made to use them. While the court accepts that there may have been problems with the screen at these scales in the past and perhaps with the scales reading too high, there is no evidence that they were not operating properly at the time of these offences. Mr. Bange did not recall using them on February 28, 2012, and Mr. Obie's testimony was that some months he may not stop at all at any of the scales. Yet, both drivers agreed that it would have been prudent to stop and have the load weighed in advance of attending at the Weyerhaeuser mill.
[88] On this basis the court finds that the Defendant did not, on a balance of probabilities, take all reasonable steps that a reasonable and prudent operator would do to avoid an overweight situation. The defence of due diligence has not been made out by the Defendant.
Decision
[89] For these reasons, the court finds that the Defendant is guilty of operating its vehicles on a highway with a weight in excess of that authorized by s.119(1) and is guilty of each offence under s.119(4) of the HTA.
Sentence
[90] The sentence is mandated by s.125 of the HTA and based on the amount that the vehicles were overweight.
[91] The prosecution urged the court to deduct the registered gross weight of the vehicle at 100% (63,500 kg) from the scale weight in order to determine the excess weight. No authority has been provided for this proposition.
[92] The Highway Traffic Act in s.125(1)(a) provides the fine for violation of s.119(4) as, "$5 per 100 kilograms, or part thereof, for any weight in excess of that permitted under this Act or the regulations, where the overweight is less than 2,500 kilograms, but in no case shall the fine be less than $100". The amount permitted by s.119(1) is 110% of the registered weight.
[93] The NOLTA agreement provides that, "During winter freeze-up period, where gross weight charges are laid, the difference between the scaled weight and the permissible gross weight (as determined by Section 119, HTA) shall be deemed to be the "excess" weight for the purpose of enforcing Section 119, HTA". The weight determined by reference to s.119 is 110% of the registered gross weight, or 69,850 kg.
[94] In accordance with the legislation, concurred in by the agreement between the MTO and NOLTA, I find that the vehicle weight at 110% as set out in s.119(1) should be deducted from the scale weight for each vehicle to arrive at the amount that the vehicle is over weight for the purposes of sentence. As such, the excess weights and the fines to be imposed for the dates of the offences are as follows:
| Date | Excess | Fine |
|---|---|---|
| February 28, 2012 | 640 kg | minimum fine $100 |
| January 9, 2013 | 1080 kg | minimum fine $100 |
| January 14, 2013 | 880 kg | minimum fine $100 |
| January 16, 2013 | 690 kg | minimum fine $100 |
| March 12, 2013 | 500 kg | minimum fine $100 |
| March 3, 2014 | 390 kg | minimum fine $100 |
[95] The Defendant will be granted six months to pay the fines, but if further time is required, the court will hear from the Defendant at this time.
Released: October 30, 2014
Signed: "Justice of the Peace MacKinnon"
*Costs and surcharge to be added.