Court Information
Ontario Court of Justice
Brampton, Ontario
Parties
In the Matter of:
- The Highway Traffic Act, R.S.O. 1990, c. H.8
- The Restricted Use Of Left Lanes By Commercial Motor Vehicles Regulation, R.R.O. 1990, Reg. 608
Between:
Her Majesty The Queen In Right Of Ontario As Represented By The Ministry of Transportation Prosecutor
and
Pietro Sisti Defendant
Judicial Officer
Before: Quon J.P.
Counsel
- P. Moore, counsel for the Ministry of Transportation
- J. Kaloty, legal representative for the defendant, Pietro Sisti
Trial Information
Trial held: October 24, 2017
Judgment released on: February 27, 2018
Charge: s. 1(1) R.R.O. 1990, Reg. 608 – "prohibited use of left lane on King's Highway"
Reasons for Judgment
1. INTRODUCTION
1Signs, signs, everywhere there are signs! For motorists, there are regulatory signs, warning signs, information and direction signs -- and even temporary condition signs. They tell us to do this or don't do that. They crowd our view of the scenery. They even invade the recesses of our minds. And for this particular Highway Traffic Act case, the sign had essentially said "commercial motor vehicles over 6.5 meters need not be driving in the left lane". Oh, but did the driver charged in this case even see that posted traffic sign which had prohibited the use of the left lane of that particular stretch of a provincial highway by commercial motor vehicles over 6.5 meters in length? But more importantly, do you always need evidence that the driver of a commercial vehicle over 6.5 meters in length had been in a position to see that particular traffic sign before the driver could be found guilty of contravening that Ontario traffic law, which prohibits the use of the left lane for that particular type of commercial motor vehicle at that particular location? In other words, is it an essential element of the offence, which the prosecution is required to prove beyond a reasonable doubt, that the driver would have objectively had the opportunity to observe that specific traffic sign or that the driver ought to have seen that traffic sign?
2Now, in the present case, the defendant, Pietro Sisti, on August 9, 2017, at 11:16 a.m., had been driving a commercial dump truck, which had measured 9.95 meters in length. He had been driving in the eastbound lanes of Highway 401, in the vicinity of the Trafalgar Road bridge and Highway 407, which is in the Town of Milton, Ontario. Highway 401 is a provincial highway that has been designated as part of the King's Highway of Ontario. At that location, commercial motor vehicles over 6.5 meters in length are prohibited by a Highway Traffic Act regulation from driving in the left lane of eastbound Highway 401. While the defendant was driving in the left lane of three eastbound lanes of Highway 401, unluckily for him, MTO Officer Whan, a transportation enforcement officer from the Ministry of Transportation, had also been travelling eastbound on Highway 401 several car lengths in front of the defendant's dump truck and had observed the dump truck being driven in that left lane, to which that left-lane prohibition had applied. As a result, the enforcement officer stopped the dump truck and then charged the defendant for committing the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of the Restricted Use Of Left Lanes By Commercial Motor Vehicles Regulation (Highway Traffic Act), R.R.O. 1990, Reg. 608 ("O. Reg. 608").
3However, if such type of commercial motor vehicle that is over 6.5 meters in length had been a bus, an ambulance or a fire apparatus, or if it had been actually engaged in maintenance or construction work at the time and location in question, or if there had been an emergency situation occurring which had required the use of that left lane by that particular class of commercial motor vehicle, as provided for under ss. 1(1) and 1(2) of O. Reg. 608, then the commercial motor vehicle would be exempted from that left-lane driving prohibition. As for the purpose of that left-lane driving prohibition, the Ontario Traffic Manual indicates that such prohibition is intended for stopping heavy or long commercial trucks from travelling in the left lanes of a highway with three or more lanes in each direction where they may impede the flow or visibility of other traffic.[1] This prohibition against commercial vehicles over 6.5 meters in length using the left lane for that particular stretch of eastbound Highway 401 is set out in s. 1.2 of Schedule 2 of O. Reg. 608 and applies to the left lane of eastbound Highway 401 between the western point situated at the intersection of Highway 8 and Highway 401 in the City of Cambridge, Ontario, and the eastern point that is 779 meters west of the intersection of Mavis Road and Highway 401 in the City of Mississauga (which is a distance of approximately 64 kilometers over which that left-lane driving prohibition would apply to commercial vehicles over 6.5 meters in length).
4Officer Whan had also testified that there is a "prohibited use of the left-lane" traffic sign, as proscribed under s. 2(1) of O. Reg. 608, for eastbound traffic of Highway 401 that is posted and displayed on the Trafalgar Road bridge that traverses over Highway 401 above the eastbound left lane, and which is a point west of where Officer Whan said he had actually pulled over the commercial dump truck.
5However, at trial MTO Officer Whan had first testified that he had believed that he had first observed the dump truck west of the Trafalgar Road bridge, but under cross-examination he said he been unable to recall for certain whether he had first observed the commercial dump truck actually before or after the bridge located at Trafalgar Road, which had been the location of where MTO Officer Whan had said he had observed on that day a traffic sign placed on the bridge that is directly over the eastbound left lane of Highway 401, which had indicated that commercial motor vehicles over 6.5 meters in length were not permitted to be driven in that particular left eastbound lane. Hence, as a result of MTO Officer Whan not being able to say for certain that he had actually observed the commercial dump truck being driven on eastbound Highway 401 at a point west of that Trafalgar Road bridge where the left-lane prohibition traffic sign had been posted and displayed, the defendant's legal representative contends that the prosecution has not proven that the defendant would have been aware of that prohibition against commercial motor vehicles over 6.5 meters in length driving in the left lane of eastbound Highway 401. As such, the defendant's legal representative submits that reasonable doubt has been created because the defendant's dump truck could have entered onto eastbound Highway 401 after, or east of, the Trafalgar Road bridge (although there is no evidence of that suggestion), so that the defendant would not have been able to have observed that left-lane prohibition traffic sign that had been posted and displayed on the Trafalgar Road bridge, which would mean that the defendant could or would not have known or been made aware of that left-lane driving prohibition that applied to the particular vehicle he was driving.
6In addition, the defendant's legal representative contends that MTO Officer Whan had failed to provide evidence that the left-lane prohibition traffic sign located on the Trafalgar Road bridge that traverses over Highway 401 had complied with the proscribed shape, colouring, markings, or dimensions for that type of sign, or that it had been properly placed according to the requirements for that particular left-lane prohibition traffic sign, which are prescribed in O. Reg. 608. As such, the defendant's legal representative also argues that there is no evidence that the left-lane prohibition traffic sign that Officer Whan had observed on the Trafalgar Road bridge had been a legal or bona fide traffic sign.
7In response to the defence arguments, the prosecution argues that because the defendant has not been charged with an offence under s. 182(2) of the H.T.A. of contravening or disobeying a particular traffic sign, but had been charged instead with not complying with a regulation which prohibited the driving of a commercial motor vehicle more than 6.5 meters in length in the left lane of eastbound Highway 401; as well that O. Reg. 608 does not expressly mandate that signs for that left-lane driving prohibition have to be posted in respect to a provincial highway; and also because ignorance of the law is not a defence, then a left-lane prohibition traffic sign informing drivers of commercial motor vehicles over 6.5 meters that driving in the left lane is prohibited at that location is not legally required to be posted, erected, or displayed by the Ontario government in respect to Highway 401. To further support this contention that a traffic sign is not legally required to be posted, erected, or displayed for this particular left-lane driving prohibition for a provincial highway, the prosecution also submits that according to ss. 185(1) and 186(3) of the H.T.A., which when read in conjunction with O. Reg. 608, has expressly stated that a left-lane prohibition traffic sign as prescribed under ss. 2 and 3 of O. Reg. 608 would only be legally required to be posted, erected, or displayed if the highway or roadway in question had been under the jurisdiction of a municipality. Furthermore, the prosecution submits that since Highway 401 is a highway under the jurisdiction of the Ontario Government (Ministry of Transportation), that when s. 185 of the H.T.A., which authorizes the Ontario government to pass regulations prohibiting the use of the left lane on a highway by a particular class of motor vehicles is read in conjunction with O. Reg. 608, it is not specifically expressed or declared, nor is there an implied requirement that signage is legally required to be posted or displayed for the particular left-lane driving prohibition that is set out under s. 1(1) of Reg. 608 when it applies to a provincial highway. Moreover, the prosecution submits that it is only s. 186(3) of the H.T.A., which specifically and expressly states that if the municipality prohibits the use of a left lane on a municipal highway by enacting a bylaw then it also is legally required to post, erect, or display a left-lane prohibition traffic sign.
8In addition, the prosecution submits that s. 2 of O. Reg. 608, which sets out the prescribed requirements for the form, dimensions, and the placement for that specific left-lane prohibition traffic sign, would only be applicable when such traffic signs are to be posted, erected, or displayed in respect to a municipal road, but since Highway 401 is a provincial highway, then there would be no such legal requirement for the posting, erection, or display of that prescribed sign. Nor, as the prosecution further submits, are they required in this case to prove beyond a reasonable doubt that the left-lane prohibition traffic sign posted or displayed on the Trafalgar Road bridge had complied with its prescribed form, dimensions, and placement set out in O. Reg. 608, when such signage is not legally required, in any event, for a provincial highway.
9Ergo, the legal issues that have to be resolved in this regulatory prosecution brought by the Ministry of Transportation, are: (1) whether the prosecution is required to prove beyond a reasonable doubt that the defendant ought to have known or been made aware of the left-lane driving prohibition by being able to objectively show that the defendant had been in a position to observe that left-lane prohibition traffic sign, which would have informed the defendant about the prohibition against a commercial motor vehicle over 6.5 meters in length being driven in the left lane of that particular highway; (2) whether a left-lane prohibition traffic sign as prescribed under ss. 2 and 3 of O. Reg. 608 is legally required to be posted, erected, or displayed on a provincial highway for the purposes of the "prohibited use of left lane on King's Highway" offence that is set out in s. 1(1) of O. Reg. 608; and (3) if the left-lane prohibition traffic sign is required to be posted or displayed, then whether the prosecution is required to prove beyond a reasonable doubt that the left-lane prohibition traffic sign displayed on the Trafalgar Road bridge had complied with the form, dimensions, and the placement of the sign as proscribed by either s. 2 or s. 3 of O. Reg. 608.
10In answer to the first question, the prosecution does not have the legal burden to prove that the defendant ought to have known or been aware of the left-lane driving prohibition by having to show that the defendant had been in a position objectively to observe the left-lane prohibition traffic sign. Firstly, the defendant has been charged with committing a strict liability regulatory offence in which the prosecution is not legally required to prove any mental element. In other words, the prosecution only has a legal burden to prove the actus reus of the offence beyond a reasonable doubt and is not legally required to prove that the defendant had the requisite mens rea or mental fault in committing the actus reus of the offence. Secondly, in order for the prosecution to prove that the defendant had committed the "prohibited use of left lane on King's Highway" offence beyond a reasonable doubt, there is nothing contained in s. 1(1) or any other provision of O. Reg. 608 that expressly or by implication requires the prosecution to prove, as an essential element of the offence, that the defendant ought to have known or been aware of the left-lane driving prohibition by objectively being a position to observe the left-lane prohibition traffic sign posted or displayed on the Trafalgar Road bridge. Thirdly, the defendant has not been charged with the offence of "disobeying a sign" under s. 182(2) of the H.T.A., which would have required the prosecution to prove as an element of that particular offence that the defendant ought to have known or been aware of that left-lane driving prohibition for commercial motor vehicles longer than 6.5 meters in length by objectively being in a position to observe the left-lane prohibition traffic sign that is posted and displayed on the Trafalgar Road bridge, which could be proven by Officer Whan observing the defendant driving eastbound on Highway 401 at a point west of the location of that left-lane prohibition traffic sign posted on the Traffic Road bridge. In short, proving the offence of disobeying a particular traffic sign would have required the prosecution to prove that an accused motorist would have been in a position objectively to have observed that impugned sign, otherwise there would be no traffic sign that the defendant could have or ought to have observed, so as to disobey it.
11And, for the answer to the second question, it is evident that in reading both ss. 185 and 186(3) of the H.T.A. in conjunction with O. Reg. 608, that the left-lane prohibition traffic signs prescribed respectively under ss. 2 and 3 of O. Reg. 608 are only legally required to be posted, erected, or displayed on a municipal highway and not in respect to a provincial highway. Specifically, s. 186(3) of the H.T.A., expressly states that municipalities who enact a bylaw prohibiting the use of the left lane of a municipal highway are legally required to erect traffic signs as prescribed by ss. 2 and 3 of O. Reg. 608 over or near the left lane of that highway, so that the signs can be seen by the drivers of commercial motor vehicles entering the highway from connecting or intersecting highways. On the other hand, both s. 185 of the H.T.A. and O. Reg. 608 are silent about any legal requirement of the Ontario government to post, erect, or display that particular left-lane prohibition traffic sign prescribed under ss. 2 and 3 of O. Reg. 608 in respect to a provincial highway.
12And, for the answer to the third question, even though there had been a left-lane prohibition traffic sign posted and displayed on the Trafalgar Road bridge and despite there being no legal requirement of the Ontario government to post, erect, or display that left-lane prohibition traffic sign on or for a provincial highway, there is still a rebuttable presumption of regularity which applies to that particular traffic sign in respect to the dimensions, colouring, wording, placement, and height measurements as prescribed under s. 2 of O. Reg. 608: R. v. Garbarino, [2010] O.J. No. 3168 (O.C.J.) and R. v. Lavelle, 1958 CanLII 455 (ON SC), [1958] O.J. No. 346 (O.H.C.J.). As such, the prosecution is not required to prove that the left-lane prohibition traffic sign posted on the Trafalgar Road bridge complies with the prescribed requirements for that sign. But more importantly, this presumption of regularity in which government bodies are assumed not to post, erect, or display traffic signs unless they have complied with the shape, colouring, markings, dimensions or placement prescribed for that particular sign, has not been displaced or rebutted by any of the evidence adduced at trial. Accordingly, there is no evidence which has been adduced that would prove the left-lane prohibition traffic sign posted and displayed on the Trafalgar Road bridge is an invalid traffic sign.
13Moreover, MTO Officer Whan's testimony has not been undermined during cross-examination, nor contradicted by any evidence that he had indeed observed the commercial dump truck measuring over 6.5 meters in length driving in the left lane of eastbound Highway 401, when it had been prohibited from doing so, for that part of eastbound Highway 401. Therefore, based on MTO Officer Whan's credible testimony the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence for the charge of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of O. Reg. 608. In addition, there is no evidence that, at the time and location in question, the defendant's dump truck had been engaged in maintenance or construction or that there had been an emergency that had required the use of the left lane by the defendant's dump truck, as an exception provided under ss. 1(1) and 1(2) of O. Reg. 608, which would exempt the dump truck from the prohibition against using the left lane of eastbound Highway 401.
14And, in respect to any due diligence defence, the defendant did not testify nor appear at trial. And, since there is no evidence that the defendant had taken all reasonable care in the circumstances to avoid the event or that he had been under a mistaken belief of fact, if true, would make the act or omission innocent, then the defence of due diligence has not been established by the defendant on a balance of probabilities. As such, the prosecution has proven beyond a reasonable doubt that the defendant is guilty of committing the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of O. Reg. 608.
15The trial of this H.T.A. charge had been held on October 24, 2017. After final submissions were made by the prosecution and the defendant's legal representative, judgment was reserved and adjourned for the judgment to be rendered on February 27, 2018. These, therefore, are the written reasons for judgment:
2. BACKGROUND
16In the trial, only one witness testified. That witness was MTO Officer Whan, who was the transportation enforcement officer from the Ministry of Transportation that had charged the defendant with committing the H.T.A. offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of O. Reg. 608.
17In his testimony, MTO Officer Whan had said that on August 9, 2017, at 11:16 a.m., he had been travelling in his Ministry motor vehicle, in the eastbound lanes of Highway 401 and heading towards James Snow Parkway, in the Town of Milton, which is in the Regional Municipality of Halton, and near where Highway 407 would intersect with Highway 401. He also said that he had been travelling in the right lane and had believed at that time that he had been heading to the weigh scale located at Trafalgar Road. In addition, he said the traffic at that time had been light and the traffic was moving at 100 k.p.h. MTO Officer Whan also said he had observed a 4-axle dump truck in motion. He further said that the dump truck was a Kenworth model dump truck with an Ontario commercial licence plate attached that had been numbered AE12176. He also said the dump truck was registered to Clipper Construction Ltd. and had a registered weight of 37,000 kilograms.
18When he had first observed the dump truck, MTO Officer Whan said that he himself had been driving in the right-hand eastbound lane of Highway 401 and believes that he had actually observed the dump truck before reaching Trafalgar Road, since Trafalgar Road had been in the area where he had been closest to. He then said that he had moved his cruiser into the middle lane and had observed that a transport truck and trailer had been travelling directly behind him. He then said he had observed that dump truck travelling in the left lane behind both his cruiser and the transport truck and trailer. Then MTO Officer Whan said the dump truck had continued driving in the left eastbound lane of Highway 401 and then he saw it drive pass both the transport truck and trailer and his own cruiser, which were both still travelling in the middle eastbound lane. MTO Officer Whan also said that the dump truck had passed his cruiser and the transport truck and trailer on their left. In addition, he said he had observed the dump truck for about only 10 seconds. Then MTO Officer Whan said that he had activated his lights behind the dump truck, which was now driving in the center lane, to pull over the dump truck because commercial motor vehicles which are more than 6.5 meters in length are prohibited from driving in the left lane. The dump truck was later measured by MTO Officer Whan with a tape measure. He said that he had measured the dump truck to be 32 feet and 8 inches, which would be about 9.95 meters in length. In addition, he said the dump truck had stopped for him on Highway 401, near where Highway 407 intersects with Highway 401.
19After the driver of the dump truck had stopped for him, Officer Whan said the driver had identified himself as Pietro Sisti. Officer Whan also provided the driver's birthdate and said that the driver was 49 years old. In addition, Officer Whan said he had taken a photograph of Pietro Sisti's driver's licence, which Officer Whan subsequently submitted at trial a copy of that photograph of the licence as evidence of the identity of the driver of the dump truck (see Ex. 2).
20When asked in cross-examination at what point did he actually observe the commercial dump truck in the left eastbound lane of Highway 401, MTO Officer Whan stated that he could not recall exactly, except that it had been near Trafalgar Road. However, he pointed out that the entire section of eastbound Highway 401 in that locale prohibits the use of the left lane by all commercial motor vehicles longer than 6.5 meters in length.
21In addition, MTO Officer Whan had described in his testimony a traffic sign which he said he had observed on that day on the Trafalgar Road bridge, that had been posted over the left eastbound lane of Highway 401. That sign, he said, had wording and symbols that had informed drivers of commercial motor vehicles measuring more than 6.5 meters in length, that driving such commercial motor vehicles in the left eastbound lane of Highway 401 was prohibited. He also said that when shown the left-lane prohibition traffic sign prescribed in s. 2 of O. Reg. 608, that the particular sign on the Trafalgar bridge he had observed had looked similar to the one depicted in s. 2 of O. Reg. 608. He also said the sign in question was either mounted on the pillar or on the bridge above the left eastbound lane. He then described the sign as a white sign with graphic depiction of a truck with a circle around it and a diagonal line across the truck, as well as the words "OVER 6.5 METERS" underneath the graphic depiction of the truck. He also said there was an arrow symbol pointing down that was located beneath the graphic depiction of a truck and the wording. However, Officer Whan said that he did not take a photograph of that particular left-lane prohibition traffic sign, although he said that he normally does. However, he then said that he did mention that particular sign in his notes in which he said the sign had been near Trafalgar Road. Furthermore, Officer Whan said that he does not know how high the sign had been posted above the roadway. In addition, Officer Whan said the offence had occurred after the dump truck would have driven pass the left-lane driving prohibition sign.
22Furthermore, MTO Officer Whan said that there are other such signs prohibiting commercial motor vehicles and trucks over 6.5 meters in length from driving in the left lane that are located throughout Highway 401, which prohibition applies from Cambridge, Ontario to Mavis Road. However, he said that there is an exception to that left-lane driving prohibition which is the area on Highway 401 that is from Mavis Road to Highway 410 because the lanes merge there. He then said that there are also left-lane prohibition traffic signs located at the Steeles Avenue overpass for eastbound Highway 401, one at Guelph Line, and one sign that he also believes is located at the Highway 25 bridge that goes over Highway 401.
23Moreover, MTO Officer Whan had testified that there is no High-Occupancy Vehicle lane (or H.O.V. lane) at that stretch of Highway 401 where he had observed the dump truck travelling in the left lane.
3. THE CHARGE
24The defendant has been charged under a Part I Certificate of Offence numbered 2109301Z that was issued on August 9, 2017, for committing the following offence:
Pietro Sisti, of [residential address removed for privacy], Caledon, Ontario,
On the day of 2017 – 08 – 09 11:16 A.M.
At HIGHWAY 401 E/B Near HIGHWAY 407, Town of Milton HALTON REGION
Did commit the offence of: prohibited use of left lane on King's Highway
Contrary to Highway Traffic Act, Regulation 608, Sect. 1(1)
4. ISSUES
25In order to determine if the defendant has committed the H.T.A. offence of "prohibited use of left lane on King's Highway" beyond a reasonable doubt, the following issues need to be resolved:
Has the prosecution proven that the defendant had committed the actus reus of the "prohibited use of left lane on King's Highway" offence beyond a reasonable doubt?
Does the prosecution need to prove as an element of the offence that the defendant had been aware of or ought to have been aware of the left-lane driving prohibition at that particular part of eastbound Highway 401, by having to establish that the commercial dump truck had been actually driving at some point west of the Trafalgar Road bridge where the left-lane prohibition traffic sign had been posted and displayed for eastbound motorists who would have then reasonably had the opportunity to observe that particular traffic sign?
Is the Ontario government (Ministry of Transportation) legally required to post, erect, or display the left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 in respect to a provincial highway?
Is the prosecution required to prove beyond a reasonable doubt that the left-lane prohibition traffic sign that had been posted and displayed on the Trafalgar Road bridge had complied with the prescribed size, colouring, markings, dimensions, and placement set out in s. 2 of O. Reg. 608?
If the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of "prohibited use of left lane on King's Highway", then has the defendant made out one of the two branches of the due diligence defence on a balance of probabilities, so that the defendant would not be convicted of committing that offence?
5. ANALYSIS AND DECISION
26The defence contend on several grounds that the prosecution has not proven the "prohibited use of left lane on King's Highway" charge against the defendant beyond a reasonable doubt. As such, the defence submits that the defendant should be acquitted of the charge.
27First of all, the defence contends there is no evidence that the left-lane prohibition traffic sign that is posted on the Trafalgar Road bridge had complied with the requirements prescribed under ss. 2 and 3 of O. Reg. 608 for that particular sign in regards to the colouring, symbols, wording, dimensions, and its placement. As a result, the defence contends that there is no evidence of a valid traffic sign for which the defendant could or would have had to comply with.
28Secondly, the defence submits that since MTO Officer Whan had not been able to credibly give for certain the location of where he had first observed the defendant's commercial dump truck that was being driven in the eastbound left lane of Highway 401, especially on whether MTO Officer Whan had actually observed the dump truck being driven at some point west of the Trafalgar Road bridge where the left-lane prohibition traffic sign had been posted, then the defence contends that MTO Officer Whan had only assumed in his testimony that the defendant would have seen the posted left-lane prohibition traffic sign. And, as a consequence, the defence contends that the prosecution has not proven beyond a reasonable doubt that the defendant would have been aware of or ought to have been aware of that left-lane driving prohibition for eastbound Highway 401, for the location in question.
29In reply to the defence's argument for an acquittal, the prosecution argues that in order to prove the particular offence in question, it is unlike the situation where the left-lane driving prohibition is for a municipal road, since there is no legal requirement that a traffic sign, which would inform drivers of commercial motor vehicles longer than 6.5 meters that the use of the left lane of that particular highway is prohibited, has to be actually posted, erected, or displayed on or for a provincial highway, as it would be required for a municipal highway.
30The grounds to support the prosecution's position are the following: (1) that the alleged offence had occurred on a provincial highway as opposed to a municipal road; (2) that s. 185 of the H.T.A., which authorizes the Ministry of Transportation to pass regulations restricting the use of specific lanes of a provincial highway by particular vehicles, does not legally require traffic signs to be posted by the Ministry in respect to that particular lane restriction by commercial motor vehicles over 6.5. meters in length for a provincial highway; while in contrast, s. 186 of the H.T.A. does require traffic signs to be legally posted or displayed by a municipality when the lane use prohibition is for a municipal road; (3) that the defendant has not been charged with contravening or disobeying an actual traffic sign or for a "disobey sign" offence, but had been charged instead with committing the offence of "prohibited use of left lane on King's Highway", which unlike the "disobey sign" offence under s. 182(2) of the H.T.A. would not have required evidence of a posted traffic sign that had been visible and unobstructed, or proof that the motorist who is charged with the offence of actually disobeying a particular posted traffic sign would have been in a position objectively to have observed that particular sign in order to disobey it; (4) that the offence for which the defendant had been charged with committing has been laid under an Ontario Regulation rather than one laid under a municipal bylaw or in relation to a traffic sign authorized by municipal bylaw and in which ignorance of the law would not be an available defence for breaching a provincially enacted regulation; and (5) that for the specific regulation provided for in O. Reg. 608, under which the defendant is charged, it does not expressly require that a left-lane prohibition traffic sign has to be actually or legally posted or displayed for a provincial highway, as opposed to the situation proscribed in s. 186(3) of the H.T.A., which does expressly require that a left-lane prohibition traffic sign has to be actually or legally posted or displayed where the left-lane prohibition is for a municipal road, and in which a left-lane prohibition traffic sign has to be authorized under a municipal bylaw for that specific left-lane driving prohibition.
31Ergo, the key questions in determining whether the defendant has committed the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of O. Reg. 608, beyond a reasonable doubt are: (1) whether the prosecution is required to prove beyond a reasonable doubt that the defendant ought to have known or been made aware about the left-lane driving prohibition for the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge in the Town of Milton by being able to objectively show that the defendant had been in a position to observe that left-lane prohibition traffic sign posted on the Trafalgar Road bridge, which would have informed the defendant about the prohibition against a commercial motor vehicle over 6.5 meters in length being driven in the left lane of that particular highway; (2) whether a left-lane prohibition traffic sign as prescribed under ss. 2 and 3 of O. Reg. 608 is legally required to be posted, erected, or displayed on a provincial highway for the purposes of the "prohibited use of left lane on King's Highway" offence that is set out in s. 1(1) of O. Reg. 608; and (3) if that left-lane prohibition traffic sign prescribed under ss. 2 and 3 of O. Reg. 608 is legally required to be posted or displayed in respect to Highway 401, then whether the prosecution has proven beyond a reasonable doubt that the left-lane prohibition traffic sign displayed on the Trafalgar Road bridge had complied with the form, dimensions, and the placement of that particular sign, as proscribed by s. 2 of O. Reg. 608.
(A) THE "PROHIBITED USE OF LEFT LANE ON KING'S HIGHWAY" IS A STRICT LIABILITY OFFENCE
32In reviewing the wording of the "prohibited use of left lane on King's Highway" offence set out in s. 1(1) of O. Reg. 608, especially the statutory exceptions that are available under ss. 1(1) and 1(2), along with considering the out-of-court set fine of $85 and the maximum fine of $500 that could be imposed under s. 214(1) of the H.T.A. upon conviction after trial, there is no expressed wording or indication that the offence is anything but a strict liability offence. In other words the offence is not a mens rea offence, since the offence provision set out in s. 1(1) of O. Reg. 608 does not contain such terms or words as "knowingly", "intended", "reckless" or wilful blindness", nor is it expressly stated that the offence would be one of absolute liability: R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353:
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
33Furthermore, the general penalty section for contravening a provision of the H.T.A. where a specific penalty for the contravention is not otherwise provided for, is set out under s. 214(1) of the H.T.A. As such, the range of fines for a conviction after a trial of the "prohibited use of left lane on King's Highway" charge, would be from a minimum fine of $60 to a maximum fine of $500:
General penalty
214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.
34Accordingly, the "prohibited use of left lane on King's Highway" offence is a strict liability offence. And, because the offence in question is a strict liability offence, then it will be first decided whether the prosecution has proven the actus reus of the offence beyond a reasonable doubt. If they have, then the burden will shift to the defence to prove that the defendant has established the defence of due diligence on a balance of probabilities if the defendant wishes to be acquitted of the offence.
(B) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF COMMITTING THE OFFENCE?
35For the defendant to be found guilty of committing the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of O. Reg. 608, the prosecution has to prove beyond a reasonable doubt that the defendant had been operating a commercial motor vehicle or any combination of a commercial motor vehicle and a towed vehicle that exceeds 6.5 meters in length, which is not a bus, an ambulance or a fire apparatus, and that the defendant had been driving that particular commercial motor vehicle in the left lane of a highway for which the left-lane driving prohibition under s. 1(1) of O. Reg. 608 would apply to that particular stretch of the highway in question:
1(1) Subject to subsection (2), no person shall operate a commercial motor vehicle or any combination of a commercial motor vehicle and a towed vehicle that exceeds 6.5 metres in length, except a bus, an ambulance or a fire apparatus, in the left lane or, where the left lane has been designated as a high occupancy vehicle lane, in the lane adjacent to the high occupancy vehicle lane of those portions of a highway described in the Schedules.
(2) Subsection (1) does not apply to a commercial motor vehicle engaged in maintenance or construction or where an emergency requires the use of the lane by a commercial motor vehicle.
36Furthermore, s. 1.2 of Schedule 2 of O. Reg. 608, expressly prohibits commercial motor vehicles measuring over 6.5 meters in length from being driven in that part of the eastbound lanes of Highway 401 that lies between a point to the west that is situate at its intersection with the King's Highway known as No. 8 in the City of Cambridge and a point to the east that is situate 779 meters measured westerly from its intersection with the center line of the roadway known as Mavis Road in the City of Mississauga, which covers that stretch of eastbound Highway 401 that is located in the area of the Trafalgar Road bridge in the Town of Milton:
SCHEDULE 2
HIGHWAY NO. 401
1.2 That part of the eastbound lanes of the King's Highway known as No. 401 lying between a point situate at its intersection with the King's Highway known as No. 8 in the City of Cambridge and a point situate 779 metres measured westerly from its intersection with the centre line of the roadway known as Mavis Road in the City of Mississauga.
37Therefore, the eastbound left lane of Highway 401 in the area by the Trafalgar Road bridge and near Highway 407 in the Town of Milton is prohibited for use by commercial motor vehicles over 6.5 meters in length.
(1) What is a King's Highway in Ontario?
38The highways in Ontario designated as a King's Highway comprise a system of provincial highways threading throughout the province. In addition, the highways comprising the King's Highway in Ontario are paved primary trunk highways that are usually two or four-lane undivided roads, but there are some that have been upgraded to function as expressways and freeways. Furthermore, the primary function of the King's Highway is to accommodate through traffic, although many of these highways serve as collector roads with local access.
39However, Ontario's H.T.A. does not specifically define what class of road or highway is a "King's Highway". Instead s. 1(1) of the H.T.A. only expressly states that the definition of a "King's Highway" is a highway that includes the secondary highways and tertiary roads designated under the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50:
Definitions
1 (1) In this Act,
"King's Highway" includes the secondary highways and tertiary roads designated under the Public Transportation and Highway Improvement Act; ("route principale")
40In addition, the authority of the Minister of Transportation for Ontario to designate a highway as the King's Highway is contained in s. 7(1) of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50. Moreover, s. 7(2) of that particular Act requires that the Minister of Transportation, who wishes to designate a highway as the King's Highway, must do so by means of an order in council that has to be also registered in the proper land registry office:
Designation of the King's Highway
7 (1) The Lieutenant Governor in Council may designate a highway or proposed highway as the King's Highway.
Registration of order in council
(2) The order in council designating a highway or proposed highway as the King's Highway shall be registered in the proper land registry office and any such order in council heretofore registered shall be deemed to have been required to be so registered.
Designation not regulation
(3) A designation under this section is not a regulation within the meaning of Part III (Regulations) of the Legislation Act, 2006.
41Also, by virtue of s. 32(1) of the Public Transportation and Highway Improvement Act, the Minister of Transportation for Ontario is authorized to make regulations prohibiting or regulating the use of the King's Highway by any class of vehicles:
Use of highway by vehicles and animals
32(1) The Minister may make regulations prohibiting or regulating the use of the King's Highway by any class of vehicles or animals and may impose penalties for contravention thereof, but no such regulation has any force or effect until approved by the Lieutenant Governor in Council after notice to any municipality affected thereby.
(2) Is Highway 401 a King's Highway?
42First of all, s. 1.2 of Schedule 2 of O. Reg. 608, the governing legislation in this prosecution, specifically refers to Highway 401 as the King's Highway:
SCHEDULE 2
HIGHWAY NO. 401
1.2 That part of the eastbound lanes of the King's Highway known as No. 401 lying between a point situate at its intersection with the King's Highway known as No. 8 in the City of Cambridge and a point situate 779 metres measured westerly from its intersection with the centre line of the roadway known as Mavis Road in the City of Mississauga.
43In addition, s. 4(2) of the General Regulation (Off-Road Vehicles Act, R.S.O. 1990, c. O.4), R.R.O. 1990, Reg. 863, provides for a Schedule or list of highways in that particular Regulation, which by number or name would comprise part of the King's Highway in Ontario:
4(1) The areas set out in Schedule 1 are designated as areas within which subsection 2(2) of the Act does not apply.
(2) Where a highway is referred to in Schedule 1 by a number or name, the reference is to that part of the King's Highway that is known thereby.
44Hence, under s. 1 of Schedule 1 of the General Regulation (Off-Road Vehicles Act), it is expressly and specifically stated that Highway 401 is known as part of the "King's Highway":
SCHEDULE 1
1. All of the King's Highway known as Nos. 69, 400, 401, 402, 403, 404, 405, 409, 410, 412, 416, 417, 418 and 427.
45Accordingly, Highway 401 has been designated by the Minister of Transportation for Ontario to be part of the King's Highway, as implied by the statutory references mentioned in s. 1.2 of Schedule 2 of O. Reg. 608 and as mentioned in s. 1 of Schedule 1 of the General Regulation (Off-Road Vehicles Act, R.S.O. 1990, c. O.4), R.R.O. 1990, Reg. 863.
(3) Highway 401 Is Not A Municipal Highway, But A Provincial Highway
46And more importantly, since the Minister of Transportation for Ontario has designated Highway 401 as part of the King's Highway then it is also a provincial highway and not a municipal highway, even though, as in the case at bar, Highway 401 runs through the boundaries of different towns, municipalities, and cities in the province of Ontario. Ergo, Highway 401 is not a municipal highway for the purposes of the H.T.A. or for any its regulations.
(4) Is The Prosecution Required To Prove Beyond A Reasonable Doubt That The Defendant Had Knowledge Of Or Had Been Aware Of The Left-Lane Prohibition For Commercial Motor Vehicles Over 6.5 Meters In Length On Eastbound Highway 401 By Having To Prove That The Defendant Would Have Objectively Been In A Position To Have Observed The Left-Lane Prohibition Traffic Sign That Is Posted On The Trafalgar Road Bridge?
47To reiterate, the defence contends that the prosecution has not proven that the defendant had known about or been aware of the left-lane driving prohibition for commercial motor vehicles over 6.5 meters in length for the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge in the Town of Milton, since the prosecution had failed to prove that the defendant's dump truck had been driving west of the Trafalgar Road bridge on eastbound Highway 401 to establish that the defendant would have been able to objectively observe the left-lane prohibition traffic sign that is posted on that particular bridge which traverses over Highway 401. However, the prosecution in response to that defence argument submits that they do not have to prove that the defendant would have or ought to have seen that specific left-lane prohibition traffic sign, since there is no legal requirement that the particular left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 has to even be posted, erected, or displayed on Highway 401 or in respect to or for any provincial highway.
(a) Is the left-lane prohibition traffic sign that is prescribed under sections 2 and 3 of O. Reg. 608 legally required to be posted, erected, or displayed on Highway 401?
48To support their argument that the left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 is not legally required to be posted, erected, or displayed on or for a provincial highway, the prosecution relies on the interplay between s. 185 and s. 186 of the H.T.A. and the specific and expressed wording contained in those two statutory provisions.
(i) s. 185 of the H.T.A.
49Subsection 185(1) of the HTA allows the Minister of Transportation for Ontario to pass a regulation prohibiting or regulating the use of any highway or part thereof by pedestrians or animals or any class or classes of vehicles. However, s. 185 does not expressly refer to any legal requirement for the Ministry of Transportation to post, erect, or display a traffic sign in respect to regulating the use of any highway or part thereof by any class of vehicle:
Regulating or prohibiting use of highway by pedestrians, etc.
185 (1) The Minister may make regulations prohibiting or regulating the use of any highway or part thereof by pedestrians or animals or any class or classes of vehicles.
Prohibiting motor assisted bicycles, etc., on municipal highways
(2) The council of a municipality may by by-law prohibit pedestrians or the use of motor assisted bicycles, bicycles, wheelchairs or animals on any highway or portion of a highway under its jurisdiction.
Removing pedestrians
(3) Where a pedestrian is on a highway in contravention of a regulation made or by-law passed under this section, a police officer may require the pedestrian to accompany him or her to the nearest intersecting highway on which pedestrians are not prohibited and the pedestrian shall comply with the request.
(ii) s. 186 of the H.T.A.
50In contrast to s. 185, s. 186 of the H.T.A. which authorizes municipalities to pass bylaws prohibiting the operation of a commercial motor vehicle that exceeds 6.5 meters in length, other than a bus or any combination of a commercial motor vehicle and a towed vehicle, in the left lane of any highway under its jurisdiction that has three or more lanes for traffic in each direction and on which the speed limit is 80 kilometers per hour or more. However, the municipal bylaw that would be enacted to prohibit left-lane driving on a particular municipal highway by commercial motor vehicles over 6.5 meters in length would also not apply to such vehicles, if they are being used for the maintenance or construction of that particular municipal highway at the place and time in question or that they are using the left lane of that particular municipal highway in respect to an emergency situation. But more importantly when compared to the wording contained in s. 185, s. 186(3) does expressly state that the municipality, who passes a by-law under s. 186(1) prohibiting commercial motor vehicles over 6.5 meters in length from using or driving in the left lane of a particular municipal highway, is legally required to erect a left-lane prohibition traffic sign over the left lane of that municipal highway so that the sign can be seen by the drivers of commercial motor vehicles over 6.5 meters in length which enter the municipal highway from connecting or intersecting highways:
Prohibiting commercial vehicles in left lane
186 (1) The council of a municipality may by by-law prohibit the operation of,
(a) a commercial motor vehicle other than a bus; or
(b) any combination of a commercial motor vehicle and a towed vehicle, that exceeds 6.5 metres in length, in the left lane of any highway under its jurisdiction that has three or more lanes for traffic in each direction and on which the speed limit is 80 kilometres per hour or more.
When prohibition does not apply
(2) A by-law passed under subsection (1) does not apply to the use of the left lane of a highway by a commercial motor vehicle,
(a) that is being used for the maintenance or construction of the highway; or
(b) in an emergency.
Signs
(3) Where the council of a municipality passes a by-law under subsection (1), the municipality shall erect signs over the left lane of the highway governed by the by-law so located that they can be seen by the drivers of commercial motor vehicles entering the highway from connecting or intersecting highways.
(b) the statutory provisions of O. Reg. 608
51As well, none of the statutory provisions in O. Reg. 608 explicitly or implicitly require that the left-lane prohibition traffic sign that is prescribed in ss. 2 and 3 of O. Reg. 608 has to be legally posted, erected, or displayed either on or for a King's Highway or a provincial highway in order to inform drivers of commercial motor vehicles over 6.5 meters about the prohibited use of the left lane for that particular highway for such commercial motor vehicles. However, ss. 2 and 3 of O. Reg. do make explicit references to the legal requirements of the left-lane prohibition Traffic sign, but only in the sense that when that particular traffic sign is posted, erected, or displayed then the sign has to comply with the form, dimensions, and the placement of the sign as prescribed and illustrated in the Figures set out in ss. 2 or 3 of O. Reg. 608:
2 (1) A sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions prescribed and illustrated in the following Figure:
(1.1) Despite subsection (1), in an area designated under the French Language Services Act, a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions prescribed and illustrated in the following Figure:
(2) The sign referred to in subsection (1) or (1.1) shall be erected directly above the lane on those portions of a highway described in the Schedules.
3 (1) Where the conditions make it impracticable to place a sign in accordance with the requirements of section 2, a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions illustrated in the following Figure:
(1.1) Despite subsection (1), in an area designated under the French Language Services Act, where the conditions make it impracticable to place a sign in accordance with the requirements of section 2, a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions illustrated in the following Figure:
(2) The sign referred to in subsection (1) shall be erected not less than 1.5 metres or more than 2.5 metres above the level of a highway described in the Schedules.
(3) The sign referred to in subsection (1.1) shall be erected not less than 1.5 metres or more than 2.5 metres above the level of a highway described in the Schedules and shall be erected in combination with the sign required by subsection (1), below it, to the right of it or up to 100 metres beyond it.
(c) Not All Prohibitions In Respect To Operating A Motor Vehicle On A Highway Legally Require A Sign To Be Posted, Erected, Or Displayed
52It should also be noted that even for municipal traffic and parking offences that are enacted under municipal bylaws, not all of these municipal traffic and parking offences legally require traffic or parking signs to be posted, erected, or displayed for all locations within the municipality for that traffic or parking offence to be valid.
53For example, the prohibition against a motor vehicle being parked for a duration of more than 3 hours on any public street in the City of Toronto does not require the posting or display of such a sign on every street or road in Toronto to inform the public of such a prohibition. In other words, there is no legal requirement that a parking sign has to be erected on every street or road in the municipality in respect to notifying the public about such prohibition against a motor vehicle being parked for more than a three-hour duration on any public street. Rather, the public is presumed to know of that particular parking law based on the information signs that have been placed on major highways entering the City of Toronto, which informs the public about the maximum 3-hour parking rule that applies to every street or road in the City of Toronto.
54And, for another example where there no legal requirement for signage to be mandatorily posted, erected, or displayed on municipal highways to inform the driving public of a particular prohibition can be found in the maximum speed that a motor vehicle can legally travel on a municipal highway. In that case, s. 128(1)(a) of the H.T.A. provides that in the absence of any specific traffic sign setting out what the maximum speed is for a highway or for a particular stretch of a municipal highway then the maximum speed for that highway or part of the highway is presumed to be 50 k.p.h.:
Rate of speed
128 (1) No person shall drive a motor vehicle at a rate of speed greater than,
(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;
(b) despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by regulation;
(c) 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area;
(d) the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7);
(e) the maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or
(f) the maximum rate of speed posted on a highway or portion of a highway pursuant to section 128.0.1.
55In addition, there are other traffic offences which do not legally require traffic signs to be posted, erected, or displayed, but a motorist would still be presumed to know about the prohibition even without the existence of a traffic sign. This presumed knowledge of the traffic laws of a province by a motorist is founded on the licensing principle, which posits a notion that because the activity of driving a motor vehicle is a regulated activity in which participants are required to pass knowledge and proficiency exams before they can be licensed to drive on a public highway then the regulated participant is expected to know the conditions and legal requirements of such regulated activity. For example, a licensed motorist is presumed to know that they cannot pass another vehicle using the shoulder of a highway, yet signs informing motorists of such legal prohibition are not legally required to be placed at regular intervals on the highway. Nor can a motorist leave their motor vehicle parked in a live lane on a highway, yet signs informing motorists of such legal prohibition are also not required to be placed at regular intervals on the highway.
56Ergo, there is no legal requirement that a traffic sign must always be posted, erected, or displayed for every prohibition set out under the H.T.A. or under any other statute regulating the operation of motor vehicles on provincial highways in Ontario, unless it has been expressly stated by law.
(d) The Left-Lane Prohibition Traffic Sign Prescribed Under Sections 2 And 3 Of O. Reg. 608 Is Only Legally Required To Be Posted, Erected, Or Displayed In Respect To Municipal Roads
57Therefore, based on ss. 185 and 186 of the H.T.A. the left-lane prohibition traffic sign that is prescribed under ss. 2 and 3 of O. Reg. 608 is not legally required to be posted, erected, or displayed on Highway 401 or on any provincial highway and is only legally required to be posted, erected, or displayed on a municipal highway.
(5) Is The Prosecution Required To Prove Beyond A Reasonable Doubt That The Defendant Had Known About Or Been Aware Of The Left-Lane Prohibition By Proving That The Defendant Would Have Objectively Been In A Position To Have Observed The Left-Lane Prohibition Traffic Sign Posted on The Trafalgar Road Bridge?
58For the question of whether the prosecution is required to legally prove beyond a reasonable doubt that the defendant had known about or been aware of the left-lane driving prohibition by proving that the defendant would have objectively been in a position to have observed the left-lane prohibition traffic sign posted on the Trafalgar Road bridge, the prosecution argues that since the left-lane prohibition traffic sign is not legally required to be posted, erected, or displayed for provincial highway either under the H.T.A. or under O. Reg. 608, then the prosecution is also not required to prove beyond a reasonable doubt that the defendant would have known about or been aware of the prohibition against commercial motor vehicles over 6.5 meters using or driving in the eastbound left lane Highway 401 in the area around the Trafalgar Road bridge by showing that the defendant would have been objectively in a position to see the left-lane prohibition traffic sign posted on the Trafalgar Road bridge, since ignorance of the law is not a defence and because the defendant had not been charged specifically with committing the offence of disobeying a particular traffic sign, contrary to s. 182(2) of the H.T.A.
(a) the defendant has not been charged with "disobeying a sign" contrary to s. 182(2) of the H.T.A., which would have required the prosecution to prove that the defendant would have objectively been in a position to have observed the traffic sign
59Also in support of their argument that traffic signs for prohibiting the use of the left lane on or for Highway 401 are not legally required, the prosecution submits that the defendant has not been charged with committing the specific offence of disobeying a traffic sign, where the prosecution in that case would be required to prove the existence of a valid traffic sign for the motorist to objectively observe and to disobey.
60And similar to the "prohibited use of left lane on a King's Highway" offence being a strict liability offence, it was also determined by the Nova Scotia Court of Appeal in R. v. Higgins (1981), 1981 CanLII 3128 (NS CA), 46 N.S.R. (2d) 80, 60 C.C.C. (2d) 246 (N.S.C.A.), at paras. 20 to 21, that offences for disobeying a traffic sign are also strict liability offences:
Section 74(2) of the Act was first enacted by Stats. N.S. 1932, c. 6, s. 67(2). In 1932 only the two traditional categories of offences, according to the essential mental element required for conviction existed, i.e., mens rea offences and absolute liability offences. I am not convinced that in 1932 the legislature of this Province intended the offence of disobeying traffic signs and signals to be one of absolute liability; rather, it appears to me that it was intended that proof of the doing of the prohibited act would create a prima facie case, which, if not rebutted would carry conviction. To the best of my recollection this is the approach the courts have taken to this particular offence over the years.
I repeat my opinion that s. 74(2) of the Act creates a regulatory offence and therefore one, prima facie, of strict liability. I have considered the various indicators suggested in Sault Ste. Marie in an effort to ascertain whether the intention of the legislature was to make this offence one of absolute liability. I am not persuaded that it was. I therefore would leave it in the second offence category of strict responsibility.
61Moreover, this notion that a sign is required to be proven as part of the actus reus of the offence for the offence of disobeying a traffic sign has been recognized by Bourque J. in R. v. Niu, [2015] O.J. No. 3757 (O.C.J.). In R. v. Niu, Bourque J. had to consider the appeal of a traffic offence in regards to disobeying a traffic sign under s. 182(2) of the H.T.A. In that particular case, Bourque J. had held at para. 16 that whether or not the sign would reasonably be visible to a user of the road would go to the actus reus of the offence, which would be the disobedience of that sign. In addition, Bourque J. noted that it is not enough for an accused person to simply say that they did not see the sign, since mere inadvertence by the accused person does not afford them a defence. However, Bourque J. went on to explain that in order to make out the defence that the sign was not observed because of its indiscernibility, the accused person must go further and convince the trier of fact that no driver would have likely seen that sign:
I think in this case whether or not the sign would reasonably be visible to a user of the road actually goes to the actus reus of the offence, that is the disobedience of a sign. It is clear from the facts of this matter that the evidence proffered by the defendant on this appeal could lead any reasonable trier of fact to the conclusion that such signage was not visible to any person proceeding to make a left turn from the centre lane, with no sign facing the driver "at the intersection" where the left turn (at that time of day) was prohibited. It is not enough for a defendant to simply say that he did not see the sign. Mere inadvertence does not afford a defence. The defendant must go further and convince the trier of fact that no driver was likely to have seen the sign.
62Furthermore, in R. v. Strong, 1988 CanLII 9716 (NS SC), [1988] N.S.J. No. 456, 13 M.V.R. (2d) 106 (N.S. Co. Ct.), which was also a case about the visibility and placement of speeding signs at regular intervals along a highway, MacDonnell J. had held that it was never the intention of the Nova Scotia Legislature that traffic signs be erected so as to be always visible to a motorist traversing a section of highway covered by the speed approved for that area, considering that if it had been such a legislative intention then it would mean cluttering up villages and towns with speed zone signs erected at each street intersection, as well as erected on each street at intervals so that they would always be visible to operators of motor vehicles traversing all streets or highways. In addition, MacDonnell J. also reasoned that there is no provision in the governing section, either implied or otherwise, which would require traffic signs be erected so that they would always be visible to a motorist traversing a section of highway covered by the speed approved for that area:
With all due deference, the learned Trial Judge has misinterpreted the provisions of Section 94(1). The section clearly provides that the Minister or Traffic Authority may fix maximum rates of speed for motor vehicles traversing any part or portion of a highway. The said Authority may then erect and maintain signs notifying the travelling public of such rate of speed. Implied or otherwise, there is no provision in the said section that the signs be erected so as to be always visible to a motorist traversing a section of highway covered by the speed approved for that area.
Common sense would indicate that it was never the intention of the Legislature to place the interpretation found by the learned Trial Judge on the said section. If this was the intention of the Legislature, it would mean cluttering up our villages and towns with speed zone signs erected at each street intersection, as well as erected on each street at intervals so that they would always be visible to operators of motor vehicles traversing said streets, or highways.
63However, for the situation in the case at bar, the actus reus for the offence of "prohibited use of left lane on King's Highway" does not involve the defendant being charged for disobeying an actual traffic sign, since s. 1(1) of O. Reg. 608 does not expressly refer to the disobedience of a particular traffic sign. Therefore, since there is no legal or statutory requirement that the left-lane prohibition traffic sign, which is prescribed under ss. 2 and 3 of O. Reg. 608, has to be posted, erected, or displayed on a provincial highway or along any portion of the left lane of eastbound Highway 401, then there is equally no legal requirement on the prosecution to prove, as part of the actus reus of the offence, that the defendant would have objectively been in a position to have observed the left-lane prohibition traffic sign posted on the Trafalgar Road bridge, especially when that particular sign does not even have to be legally posted or displayed in respect to Highway 401.
(b) driving commercial motor vehicles is a regulated activity which requires licensing in order for someone to participate in that regulated activity
64In addition, the defendant, as a driver of a commercial motor vehicle, is participating in the regulated activity of driving a motor vehicle in general, as well as the specific activity of driving a commercial motor vehicle, which is a specifically regulated activity and which requires a specialized driver's licence.
65In R. v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 S.C.R. 154, [1995] S.C.J. No. 94 (QL), 102 C.C.C. (3d) 144 (S.C.C.), at paras. 39 to 40, La Forest J. had explained the "licensing principle" that was described by Cory J. in R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] S.C.J. No. 79, which postulates that regulated actors entering a licensed field should be presumed to know of, and to have accepted, the terms and conditions relevant to the regulated area, and should therefore be held liable for breaching these terms and conditions, as a rationale for subjecting the fault requirement of regulatory offences to a lower standard of Charter scrutiny than that of "true crimes":
The appellant here has not entered the commercial fishery with his eyes closed. He must be presumed to be aware of the terms and conditions of the vessel's fishing licence, which include the submission of hail reports and fishing logs.
(As noted by Taggart J.A. in the court below, there is a clause in the standard form commercial fishing licence, above the place for the signature of the vessel owner/operator, that provides that the undersigned understands that he or she is obliged, as a condition of the licence "to furnish accurate catch records in such manner and to such persons as the Fisheries Act and regulations may stipulate", and that otherwise the fishing licence may be cancelled or suspended.) The appellant must be presumed to be aware of the Groundfish Management Plan, which accompanies the fishing licence, and provides that the amount of fish he is allowed to catch is governed by quotas. He knows these quotas are subject to variation, publicized by means of Fisheries Public Notices, and he also knows that he is prohibited from taking more fish than is permitted under the quota. When he does so, can it be said that it will be a matter of surprise to him that the Crown seeks to rely on his own hail report and fishing logs in order to prosecute him? Did he not realize in submitting this report and these logs that this might be one of their uses?
In making this point, I rely on a form of the "licensing argument" discussed by Cory J. in Wholesale Travel, supra. There, Cory J. identified this argument as one rationale for subjecting the fault requirement of regulatory offences to a lower standard of Charter scrutiny than that of "true crimes". The licensing argument postulates that regulated actors entering a licensed field should be presumed to know of, and to have accepted, the terms and conditions relevant to the regulated area, and should therefore be held liable for breaching these terms and conditions. At page 229 of his judgment in Wholesale Travel, Cory J. described the licensing argument as follows:
The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility. Therefore, it is said, those who engage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among these implied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care.
The licensing justification is based not only on the idea of a conscious choice being made to enter a regulated field but also on the concept of control. The concept is that those persons who enter a regulated field are in the best position to control the harm which may result, and that they should therefore be held responsible for it.
Later, at pp. 239-40, he continued on the same theme:
The regulated actor is allowed to engage in activity which potentially may cause harm to the public. That permission is granted on the understanding that the actor accept, as a condition of entering the regulated field, the responsibility to exercise reasonable care to ensure that the proscribed harm does not come about. As a result of choosing to enter a field of activity known to be regulated, the regulated actor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition to being allowed to engage in the regulated activity.
66In addition, heavy and lengthy commercial motor vehicles are also governed by the slow moving motor vehicles provision under s. 147(1) of the H.T.A. which expressly states that any vehicle travelling upon a roadway at less than the normal speed of traffic at that time and place shall, where practicable, be driven in the right-hand lane then available for traffic, except while overtaking and passing another vehicle proceeding in the same direction:
Slow vehicles to travel on right side
147 (1) Any vehicle travelling upon a roadway at less than the normal speed of traffic at that time and place shall, where practicable, be driven in the right-hand lane then available for traffic or as close as practicable to the right hand curb or edge of the roadway.
Exception
(2) Subsection (1) does not apply to a driver of a,
(a) vehicle while overtaking and passing another vehicle proceeding in the same direction;
(b) vehicle while preparing for a left turn at an intersection or into a private road or driveway;
(c) road service vehicle; or
(d) bicycle in a lane designated under subsection 153 (2) for travel in the opposite direction of traffic.
67Ergo, for public safety purposes, the statutory requirement that slower-moving vehicles drive or use the right lanes of a multi-lane highway in order to keep the left lane open would accommodate faster moving motor vehicles, which in turn alleviates the potential harm that could be caused by impatient motorists, whose smaller and shorter vehicles would be able to travel faster than larger and heavier commercial motor vehicles that measure more than 6.5 meters in length. Hence, the legal requirement for slow moving vehicles to drive in the right lanes of a highway would also prevent impatient drivers from making dangerous and unsafe maneuvers or lane changes to get around or to pass the larger and slower-moving commercial motor vehicles that use or occupy the left lanes of a highway.
68Accordingly, since the defendant has chosen to voluntarily enter the regulated activity of driving commercial motor vehicles and who had been issued an Ontario Class AZ driver's licence with an Air Brake endorsement (see Ex. 1) to drive commercial motor vehicles on Ontario highways, then he would be presumed to know of, and to have accepted, the terms and conditions relevant to that regulated sphere of driving commercial motor vehicles on public highways. In this case, the defendant, who is licenced to drive commercial motor vehicles would be presumed to know or be aware of the left-lane driving prohibition for commercial motor vehicles over 6.5 meters generally and specifically, since as a general practice and one of common courtesy and custom, as well as from the specific rule under s. 147(1) of the H.T.A. in which motorists would know or are expected to be aware that slower vehicles are required to drive in the right lanes of a multi-lane highway. In addition, based on the general driving practice or custom, that slower motor vehicles have to drive in the right lane of a highway and that the left lane is generally for faster moving vehicles, then it would be presumed that the defendant as a licenced commercial driver would have known or be aware of or that he ought to have known or be aware of the specific prohibition under s. 1(1) of O. Reg. 608 that commercial motor vehicles over 6.5 meters cannot be driven in the left lane of eastbound Highway 401 roughly between the City of Cambridge and Mavis Road in the City of Mississauga.
(c) for the strict liability offence of "prohibited use of left lane on a King's Highway", the prosecution does not have to prove the defendant had knowledge or awareness of that left-lane driving prohibition
69In addition, the offence of "prohibited use of left lane on a King's Highway" is a strict liability offence. And as first recognized by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353, there is no necessity for the prosecution to prove the existence of mens rea for strict liability offences, since the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he had taken all reasonable care in the circumstances:
In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.
I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:
Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; 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. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.
Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
70As such, the prosecution is not legally required to prove the defendant had the requisite mens rea or knowledge of the left-lane driving prohibition for commercial motor vehicles over 6.5 meters in length for the impugned place and time. Instead, the prosecution is only legally required to establish beyond a reasonable doubt the actus reus of the offence and once they have done that, then to avoid liability the onus is on the defendant to establish on the balance of probabilities that he had taken all reasonable care in the circumstances by proving either that he had reasonably believed in a mistaken set of facts which, if true, would render the defendant's act or omission innocent or by proving that he had taken all reasonable steps in the circumstances to avoid the particular event.
71Therefore, since the offence of "prohibited use of left lane on a King's Highway" is a strict liability offence, the prosecution does not have to legally prove that the defendant had knowledge or awareness of that left-lane driving prohibition for commercial motor vehicles over 6.5 meters for the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge in the Town of Milton.
(d) ignorance of the law is not a defence
72Moreover, Dickson J., writing for the Supreme Court in R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353, recognized that public welfare offences lie in a field of conflicting values where on one hand it is essential for society to maintain through effective enforcement high standards of safety and public health so that the potential victims of those who carry on latently pernicious activities have a strong claim to consideration; while on the other hand, there is a generally held revulsion against punishing the morally innocent:
Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration. On the other hand, there is a generally held revulsion against punishment of the morally innocent.
73However, the defendant did not testify about having a lack of awareness of the left-lane driving prohibition, so that it cannot be established that the defendant is morally innocent and not liable for committing the offence at issue. On the other hand, even if there had been evidence of the defendant's unawareness of the prohibition against commercial motor vehicles over 6.5 meters using the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge, "ignorance of the law" is not available as a defence for the defendant in breaching a provincial regulation in Ontario either under the common law or by statute.
74Specifically, someone who contends, as a defence, that they were not aware of a particular law or that they had mistakenly believed that a particular law did not apply to them is nevertheless caught by s. 81 of the Provincial Offences Act, R.S.O. 1990, P.33, which expressly provides that "ignorance of the law is not a defence". Therefore, according to the common law and as it has been codified under s. 81, "ignorance of the law" is not an excuse for committing the offence. In other words, an accused person who says they were not aware or had no knowledge that the act or omission in question had been prohibited by law, cannot rely on that ignorance as a defence or an excuse for committing the act or omission that comprises that particular offence:
Ignorance of the law
81. Ignorance of the law by a person who commits an offence is not an excuse for committing the offence.
75Although it is been a long standing principle that it is not a defence for an accused person to rely on a mistake of law as the reason for committing an offence, the Supreme Court of Canada did recently consider in La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] S.C.J. No. 63, whether a defence based on a reasonable mistake of law should be available to an accused for a strict liability offence. Wagner J., writing for the majority, held at paras. 3 and 57 that the due diligence defence was not available in this case, because the appellant was relying on a pure mistake of law. He also emphasized that under Canadian law, a mistake of law can ground a valid defence only if the mistake was an "officially induced error" and if the conditions laid down in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, with respect to the application of such a defence are met. Furthermore, Wagner, J. concluded that an accused gains nothing by showing that it made a reasonable effort to know the law or that it acted in good faith in ignorance of the law, since such evidence cannot exempt them from liability:
For the reasons that follow, I find that the appeal must fail. The offence in question is one of strict liability. The actus reus was established, and the due diligence defence was not available in this case, because the appellant was relying on a pure mistake of law.
However, this defence will not be available if the defendant relies solely on a mistake of law to explain the commission of the offence. Under Canadian law, a mistake of law can ground a valid defence only if the mistake was an officially induced error and if the conditions laid down in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, with respect to the application of such a defence are met. A defendant can therefore gain nothing by showing that it made a reasonable effort to know the law or that it acted in good faith in ignorance of the law, since such evidence cannot exempt it from liability.
76Furthermore, Wagner J. confirmed at paras. 68 to 82 in La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, that the Supreme Court has held on many occasions that a reasonable mistake of law is not a defence even though an accused person has exercised due diligence to find out and verify the nature of the applicable law. However, he did acknowledge that if the rule that ignorance of the law excuses no one were to be absolute, then the rule could seriously hinder the application of another cardinal rule of the criminal justice system, that there can be no punishment without fault, but in the present circumstances he was not prepared to adopt a new exception to the rule in which a mistake of law could be used as a valid defence but only in very specific circumstances:
This Court has held many a time that the fact that a defendant has exercised due diligence to find out and verify the nature of the applicable law is not a defence (City of Lévis, at para. 22). It has characterized the rule with respect to ignorance of the law as "an orienting principle of our criminal law which should not be lightly disturbed" (Jorgensen, at para. 5, per Lamer C.J.). In City of Lévis, at paras. 22-27, LeBel J. noted that this rule has the same weight in regulatory law.
The rule with respect to ignorance of the law exists to ensure that the criminal justice system functions properly and that social order is preserved. G. Côté-Harper, P. Rainville and J. Turgeon explain this rule, conveyed by the maxim "ignorance of the law is no excuse", as follows (Traité de droit pénal canadien (4th ed. 1998), at p. 1098):
[TRANSLATION] The presumption of knowledge of the law becomes the quid pro quo for the principle of legality. The legislature assures citizens that it will not punish them without first telling them what is prohibited or required. But in exchange, it imposes on them an obligation to ask for information before acting....
Fear of social disorder and anarchy is the main argument of those who want to uphold the maxim. To accept an unrestricted possibility of hiding behind a subjective excuse of ignorance would be dangerous and improper.
In Jorgensen, Lamer C.J. also endorsed this view, quoting the following passage on the rationale for the rule against a defence based on mistake of law:
Don Stuart identifies four aspects of the rationale for the rule against accepting ignorance of the law as an excuse:
- Allowing a defence of ignorance of the law would involve the courts in insuperable evidential problems.
- It would encourage ignorance where knowledge is socially desirable.
- Otherwise every person would be a law unto himself, infringing the principle of legality and contradicting the moral principles underlying the law.
- Ignorance of the law is blameworthy in itself.
(Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 295-98.) [para. 5]
It should nonetheless be noted that if the rule that ignorantia juris non excusat -- ignorance of the law excuses no one -- were absolute, this could seriously hinder the application of another cardinal rule of our criminal justice system: there can be no punishment without fault. The overlap between these rules is all the more significant given the current simultaneous proliferation of regulatory measures and penal statutes. Indeed, several authors have pointed out that it is now impossible for citizens to have comprehensive knowledge of every law:
[TRANSLATION] The presumption of knowledge of laws was acceptable and defensible in the past because those laws concerned only serious offences and crimes against morality. The situation is very different today, and the criminal or penal law must be interpreted by consulting an abundant case law. The much-discussed multiplication of penal statutes must also be considered, and no one, not even criminal lawyers and other specialists in such matters, can profess to know all of them. The situation created by this proliferation of statutes is aggravated by the problem of their publication, which, although formal, is often not really effective.
(Côté-Harper, Rainville and Turgeon, at p. 1099)
Dickson J. also commented on this in Sault Ste. Marie, at p. 1310:
Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration. On the other hand, there is a generally held revulsion against punishment of the morally innocent.
Despite the problems that flow from regulatory measures, the rise in the number of such measures and the commensurate multiplication of penal provisions designed to enforce them go hand in hand with the evolution of modern societies. These trends are well established. Regulatory measures are adopted to protect the public from dangers that can result from activities that are otherwise legitimate. The reason why penal sanctions are used in this context rather than civil law or administrative law sanctions lies in the deterrent power of penal law (H. Parent, Traité de droit criminel, vol. 2 (2nd ed. 2007), at paras. 496-500). Cory J. eloquently explained the importance of regulatory offences in R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, at pp. 221-22:
It is difficult to think of an aspect of our lives that is not regulated for our benefit and for the protection of society as a whole. From cradle to grave, we are protected by regulations; they apply to the doctors attending our entry into this world and to the morticians present at our departure. Every day, from waking to sleeping, we profit from regulatory measures which we often take for granted....
In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society. It is properly present throughout our lives.
The foregoing discussion underscores the conflicts that inevitably result from the constantly expanding presence of regulatory measures. Such measures play an essential role in the implementation of public policy. The rule that ignorance of the law is not a valid defence supports the state's duty in this regard. For this reason alone, it needs to be enforced.
At the same time, the rise in the number of statutes coupled with their growing complexity increases the risk that a citizen will be punished in circumstances in which ignorance of the law might nevertheless be understandable.
In light of all these considerations, I find that the objective of public protection that underlies the creation of regulatory offences militates strongly against accepting a general defence of reasonable mistake of law in this context. As Cory J. noted in Wholesale Travel, at p. 219,
[r]egulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests.
Moreover, it is incumbent on a regulated entity that engages in an activity requiring specific knowledge, including knowledge of the applicable law, to obtain that knowledge. The following observations of Hugues Parent are of particular relevance in a regulatory context such as the one in the instant case. Although he objects to the rule that ignorance of the law excuses no one being absolute, Parent mentions a very important limit -- unforeseeability of the mistake -- that would have to apply should the rule be relaxed:
[TRANSLATION] An individual who acts in ignorance of a provision he or she is not in a position to know about, despite being in good faith and exercising due diligence, does wrong unknowingly, and therefore unintentionally. Such an individual cannot therefore be held liable.
To be successfully argued, insurmountable ignorance of the law must be unforeseeable, which means that it must not be related to an activity requiring special knowledge: thus, a professional fisher charged with possession of immature lobsters cannot use ignorance of the law as a defence. As O'Hearn Co. Ct. J. stated in [R. v. Maclean (1974), 1974 CanLII 1386 (NS SC), 17 C.C.C. (2d) 84 (N.S. Co. Ct.)], "if an accused wishes to indulge in an activity that requires special knowledge including knowledge of the applicable law, he can fairly be held to be under an obligation to acquire that knowledge". Because the information needed to attain that knowledge is essential, it must be accessible and comprehensible. [Emphasis in original; footnotes omitted.]
(Traité de droit criminel, vol. 1 (3rd ed. 2008), at paras. 580-81)
The regulator at issue in the instant case, the AMF, is not required by law to reply to those to whom the law applies or to inform them about their rights and obligations. As a result, it was not reasonable in this case for the appellant to view the AMF's silence as a confirmation of its interpretation of that law. …
Furthermore, even if the AMF's conduct were so vexatious as to justify accepting a new exception to the rule with respect to ignorance of the law, which I cannot find to be the case here, I am of the opinion that the steps taken by the appellant to avoid breaking the law do not meet the requirements for the due diligence defence. The appellant relied solely on the legal advice of professionals acting for a third party, Flanders, in Manitoba. A reasonable person would at least have sought an independent opinion from a member of the Barreau du Québec, preferably one who specializes in insurance law. Thus, the appellant in this case has not shown that it took all reasonable steps to avoid breaking the law.
I am well aware of the difficulties of statutory interpretation that might result from the complexity of certain regulated activities. Here, it is troubling that the AMF itself had serious difficulty interpreting the applicable law in deciding whether the transactions in question were lawful. Is it reasonable to require those to whom regulatory measures apply to have a more extensive knowledge of the law than the body responsible for enforcing it?
As I mentioned above, the complexity of regulations results from the need to ensure the proper functioning of civil society (Wholesale Travel, Sault Ste. Marie, City of Lévis). In this regard, I agree with the following comment made by Lamer C.J. in Jorgensen:
... the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. [para. 25]
I would therefore suggest postponing the debate about the appropriateness of accepting a new exception to the rule that mistake of law can be a valid defence only in very specific circumstances.
77In sum, ignorance of the law would not have been available to the defendant as a defence, even if the defendant would have testified to being unaware of that left-lane driving prohibition for commercial motor vehicles over 6.5 meters in length for the eastbound left lane of Highway 401. However, any lack of knowledge or unawareness by the defendant of the regulation against commercial motor vehicles over 6.5 meters using or driving in the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge could nevertheless be raised by the defendant as part of his due diligence defence, which is available for strict liability offences.
(e) the prosecution is not legally required to prove that the defendant would have objectively been in a position to have observed the left-lane prohibition traffic sign
78Therefore, since Highway 401 is a provincial highway and since the specific left-lane driving prohibition against commercial motor vehicles over 6.5 meters using the eastbound left lane of Highway 401 in the area of the Trafalgar Road bridge and Highway 407 has been enacted by provincial regulation; and that ignorance of the law is not a defence; and because there is no expressed requirement in either s. 185 of the H.T.A. or in O. Reg. 608 that the left-lane prohibition traffic sign has to be posted, erected, or displayed on or in respect to Highway 401, then the prosecution is not legally required to prove beyond a reasonable that the defendant would have objectively been in a position to have observed the left-lane prohibition traffic sign posted on the Trafalgar Road bridge.
(6) Does The Prosecution Have The Legal Burden To Prove Beyond A Reasonable Doubt That The Left-Lane Prohibition Traffic Sign Posted On The Trafalgar Road Bridge Complies With The Form, Size, Dimensions, And Placement That Is Prescribed Under Sections 2 And 3 Of O. Reg. 608?
79For this question, the defence contends that there is no evidence that the left-lane driving prohibition sign had been posted or displayed according to the prescribed size, colouring, markings, dimensions, and placement set out in ss. 2 and 3 of O. Reg. 608. However, even though the left-lane prohibition traffic sign prescribed under ss. 2 and 3 of O. Reg. 608 is not legally required to be posted or displayed in respect to a provincial highway, a review of the applicable law on whether the prosecution has the burden to legally prove beyond a reasonable doubt that the left-lane driving prohibition sign had been posted or displayed according to the prescribed regulations, still needs to be undertaken.
80For the left-lane prohibition traffic sign that had been posted on the Trafalgar Road bridge, its prescribed form, dimensions, wording, and placement are set out under ss. 2 and 3 of O. Reg. 608. In addition, s. 2(2) of O. Reg. 608 directs where that traffic sign has to be placed, when it has indeed been posted and displayed. In particular, that sign has to be placed directly above the left lane, unless it would be impractical to post the left-lane prohibition traffic sign directly over the left lane, then a different form and placement of the left-lane prohibition traffic sign must be used that is prescribed in s. 3 of O. Reg. 608:
1 (1) Subject to subsection (2), no person shall operate a commercial motor vehicle or any combination of a commercial motor vehicle and a towed vehicle that exceeds 6.5 metres in length, except a bus, an ambulance or a fire apparatus, in the left lane or, where the left lane has been designated as a high occupancy vehicle lane, in the lane adjacent to the high occupancy vehicle lane of those portions of a highway described in the Schedules.
(2) Subsection (1) does not apply to a commercial motor vehicle engaged in maintenance or construction or where an emergency requires the use of the lane by a commercial motor vehicle.
2 (1) A sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions prescribed and illustrated in the following Figure:
Text alternative: Illustration of an overhead sign containing an image at the top of a truck in a circle with an interdictory stroke "no" symbol. Below that appear the words "OVER 6.5 m" and a black arrow appears at the bottom of the sign pointing down. The sign has a white reflective background with the truck image, arrow and words appearing in black. The circular "no" symbol is in red. The following measurements are written below the sign: (90 x 150) cm. The sign is surrounded by measurements of its different elements. This text alternative is provided for convenience only and does not form part of the official law.
(2) The sign referred to in subsection (1) or (1.1) shall be erected directly above the lane on those portions of a highway described in the Schedules.
3 (1) Where the conditions make it impracticable to place a sign in accordance with the requirements of section 2, a sign indicating that commercial motor vehicles are prohibited in a lane of a highway shall be in the form and dimensions illustrated in the following Figure:
Text alternative: Illustration of a ground mounted sign containing an image at the top of a truck in a circle with an interdictory stroke "no" symbol. Below that appear the words "OVER 6.5 m". At the bottom of the sign on the left side appear the words "THIS LANE" and on the right side appears a black arrow pointing down and diagonally to the right. The sign has a white reflective background with the truck image, arrow and words appearing in black. The circular "no" symbol is in red. The following measurements are written below the sign: (90 x 150) cm. The sign is surrounded by measurements of its different elements. This text alternative is provided for convenience only and does not form part of the official law.
(2) The sign referred to in subsection (1) shall be erected not less than 1.5 metres or more than 2.5 metres above the level of a highway described in the Schedules.
(3) The sign referred to in subsection (1.1) shall be erected not less than 1.5 metres or more than 2.5 metres above the level of a highway described in the Schedules and shall be erected in combination with the sign required by subsection (1), below it, to the right of it or up to 100 metres beyond it.
(a) There Is A Presumption Of Regularity That Traffic Signs Have Been Erected According To The Prescribed Size, Colouring, Markings, And Dimensions
81In R. v. Garbarino, [2010] O.J. No. 3168 (O.C.J.), at paras. 11 to 14, LeDressay J. considered the "presumption of regularity" principle on the appeal of a conviction for a Highway Traffic Act offence and noted that everything is presumed to be rightly and duly performed until the contrary is shown, that where the presumption of regularity has been found to apply, it is open to the accused to rebut it by way of evidence, and that the degree of proof required to displace the application of the presumption of regularity has been held to be proof on a balance of probabilities:
The Ontario Court of Appeal commented on the presumption of regularity in the criminal law context in the case of R. v. Molina, 2008 ONCA 212 (CanLII), [2008] O.J. No. 1131. The court stated the following at paragraphs 11 through 13:
11 The presumption of regularity is a reflection of the Latin maxim: omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium (everything is presumed to be rightly and duly performed until the contrary is shown). As Watt J. noted in R. v. Kapoor (1989), 1989 CanLII 7250 (ON SC), 52 C.C.C. (3d) 41 at 68 (Ont. H.C.), it "has especial application in the case of persons who discharge a public or statutory duty."
12 Various authorities have drawn on the treatise of the great American authority on evidence, Professor John Henry Wigmore, in dealing with the underpinnings of the doctrine. For example, Prowse J.A., speaking for the Alberta Court of Appeal in the context of a breach of probation case in R. v. Scott (1980), 1980 ABCA 299 (CanLII), 56 C.C.C. (2d) 111 at 113-114, said:
This statement 1 constitutes an admission by the accused, and is therefore admissible as evidence of compliance with s. 663(4)(a) and (b). The issue is whether, in the absence of positive evidence, the statement supplies an element of probability justifying the presumption that the explanation of ss. 664(4) and 666 was delivered by the sentencing Judge himself, as required.
In Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law on Evidence, 3d ed. (1940), vol. IX, p. 488, that learned author proposes several conditions for the application of the omnia praesumuntur rule:
... first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability. [Emphasis added.]
13 This Court approved that statement in R. v. McNamara (1982), 1982 CanLII 2157 (ON CA), 66 C.C.C. (2d) 24 at 28-29, leave to appeal to S.C.C. refused, [1982] S.C.C.A. No. 271. It also approved the following additional admonition by Prowse J.A. in Scott at 114:
I am in respectful agreement with the observation of Parker L.C.J. in Scott v. Baker (1968), 52 Cr. App. R. 566 at p. 571, that very great care must be taken in applying the presumption of regularity in criminal proceedings. To purport to establish the guilt of an accused solely or largely by reliance on such a presumption would amount to a fundamental contradiction of the principles upon which our system of criminal law is based. That is not to say, however, that the presumption has no application. [Emphasis added.]
The Court went on to indicate at para. 20:
Once the Wigmore conditions have been satisfied and the presumption of regularity has been found to apply, it is open to the accused to rebut it by way of evidence. The degree of proof required to displace the application of the presumption has been held to be proof on a balance of probabilities. See Kapoor at 70. That evidence need not originate from the alleged offender or witnesses for the defence, however.
If this is the standard to be applied in the criminal law context, the standard cannot be any greater when considering the application of the presumption of regularity to regulatory matters under the Highway Traffic Act and the Provincial Offences Act.
It should be noted that Stone J. in Hawkshaw considered the presumption of regularity issue as it applied to regulatory offences under the Highway Traffic Act and the potential application of the British Columbia decision in R. v. Potts [2006] B.C.J. No. 849 (B.C.S.C.). Stone J. was sceptical whether the Potts case would have been decided in the same way in Ontario and he ultimately concluded that the evidence in that case, buttressed by the presumption of regularity, was sufficient to establish a prima facie case. Feldman J.A. appears to have tacitly agreed with Stone J. when leave to appeal his decision was denied.
82Furthermore, LeDressay J. at paras. 16 to 22 in R. v. Garbarino, [2010] O.J. No. 3168 (O.C.J.), then considered the presumption of regularity for speed traffic signs and held that the presumption of regularity is not an absolute presumption, but a rebuttable one, and that for regulatory offences such as speeding, which is a common and may be the most frequently charged Highway Traffic Act offence, a trial court is entitled to apply the presumption of regularity to the requirements of Regulation 615 which sets out in minute detail the requirements necessary for the composition and placement of speed limit signs:
Regulation 615, sections 1 through 5.1, of the Highway Traffic Act sets out a plethora of detailed requirements for various speed limit signs.
In the case of R. v. Guilbault, [2010] N.S.J. No. 48 (N.S.S.C.), the criteria necessary for the presumption of regularity to apply were set out as follows:
The presumption of regularity is applied where the matter is,
(1) not easily proved, (2) involves a mere formality of detail of required procedure and, subject to circumstances of the particular case that add an element of (3) probability that the matter was done.
In addition, the Ontario Court of Appeal in Re Laxer, 1963 CanLII 153 (ON CA), [1963] 1 O.R. 343 (O.C.A.) described the following quote from Harris v. Knight (1890), 15 P.D. 170 as most enlightening and helpful:
The maxim, "Omnia praesumuntur rite esse acta," is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.
As pointed out in the case law, the presumption of regularity is not an absolute presumption but a rebuttable one.
Surely in regulatory offences such as speeding, which is a common and may be the most frequently charged Highway Traffic Act offence, a trial court is entitled to apply the presumption of regularity to the requirements of Regulation 615 which sets out in minute detail the requirements necessary for speed limit signs which are voluminous and well recognized in the Province of Ontario on all highways and would be a factor in many speeding trials.
In this specific case, if Regulation 615 even applies concerning the distance between speed limit signs, the presumption of regularity could be utilized in making the factual determination required. The Wigmore criteria as referred to by the Ontario Court of Appeal in Molina, and the virtually identical prerequisites set out in other cases, would clearly be satisfied in these circumstances. Here, Justice of the Peace Woloschuk accepted the officer's evidence and noted that there was no evidence to the contrary. There is clear evidence of the existence of speed limit signs in the area where the speeding is alleged to have taken place. There is some conclusory evidence that the signs themselves were the "standard regulatory sign" pursuant to Regulation 615 (Transcript, page 31). The only deficiency was that the officer did not know the precise distance between the speed limit signs she referred to in her evidence. As pointed out by Justice of the Peace Woloschuk in his reasons, there is no other evidence on this issue. While the presumption of regularity is a rebuttable presumption, it is certainly not rebutted only by evidence that the officer was unaware of the specific distance between the speed limit signs referred to in her evidence at the trial.
Justice of the Peace Woloschuk therefore applied the Hawkshaw decision, made the factual determination on this issue and concluded that the Crown had proven the elements of the offence beyond a reasonable doubt, and so a finding of guilt was made. There was clearly no misapprehension of the evidence by Justice of the Peace Woloschuk and he correctly applied the governing legal principles as set out in the two Hawkshaw decisions and the other applicable case law.
83Also, in R. v. Hughes, [2015] A.J. No. 870 (A.Q.B.), Veit J. adopted the reasoning in R. v. Garbarino, [2010] O.J. No. 3168 (O.C.J.), and held, at paras. 13 and 21 to 23, that the Traffic Commissioner was entitled to presume that the traffic signs that were along the roadway had conformed to provincial regulations and that the accused had not presented any evidence that had challenged or rebutted the signage itself:
Ms. Hughes raises two issues which engage consideration of the maxim variously rendered as omnia praesumuntur rite et solemniter esse acta, or omnia praesumuntur rite esse acta or omnia praesumuntur esse rite et solemniter acta donec probetur in contrarium or, in the language used today, the presumption of regularity. She alleges, first, that the height, placement, and consistency of the signage on this particular part of the roadway do not meet the requirements of the Manual of Uniform Traffic Control Devices for Canada. Second, invoking s. 23(1) of the Canada Evidence Act, she complains that the certification of accuracy of the transcript of the trial was not signed by the transcriber.
As Ms. Hughes has pointed out, just like legislation in Ontario, Alberta legislation also contains a plethora of regulations concerning the size and colour and placement of speed signage. However, Ms. Hughes did not present any evidence that challenged the signage itself: she did not, for example, measure either the dimensions, or the distance from the ground, of any of the signs that were along the relevant portion of the Henday.
In the result, just as in Garbarino, the Traffic Commissioner was entitled to presume that the traffic signs that were along the roadway at the relevant conformed to provincial regulations.
As to whether there were any signs and as to where those signs were posted, those are questions of fact. Those findings of fact are reviewable on the standard of palpable and overriding error: Housen. Ms. Hughes contested the existence and the placement of the signs. Trial judges are required to make findings of fact when, as here, there is contradictory evidence. In doing so, the Traffic Commissioner did not err. He provided a reason for doing so, in indicating that the officer's evidence was strengthened by the photographs. The Traffic Commissioner made no palpable or overriding error in making the decision he did
84But more importantly, in R. v. Lavelle, 1958 CanLII 455 (ON SC), [1958] O.J. No. 346 (O.H.C.J.), Landreville J., held, at paras. 3 and 4, that there is a presumption that the officials of the Municipality, acting under instructions, had erected a sign in size, colour, and in location in compliance with the Regulations:
The Regulations of the Department of Highways relating to such 'Stop Sign' appears in Ontario Regulation 139/56. It sets out the size and colour of the sign, its location and wording, its height from the ground, etc. There is evidence in this case that a 'Stop Sign' was erected on that intersection, but no evidence of its exact location, size or other description was given by the witness.
I have read the case of Regina v. Coad (1956) 1956 CanLII 514 (AB CA), 24 C.R. 264. While in that case the appeal was dismissed due to the fact that the Court was evenly divided on the question in issue. I am impressed by the opinion of Ford, J.A. as he cites with approval Boyd-Gibbons v. Skinner (1951) 2 K.B. 379. To paraphrase the said cases, I do hold that when it is established that a sign has been erected in pursuance of the Regulations of an Order-in-Council and of a By-law, it is a reasonable inference and there must be a presumption that the officials of the Municipality, acting under instructions, have so erected a sign in size, colour and in location in compliance with the Regulations. They are skilled and experienced in that matter and it must be presumed that they have carried out their instructions. When a constable gives in evidence that a 'Stop Sign' was erected on location, the Crown has established a prima facie case. It may be met by the defence that in fact the sign did not comply with the Regulations. But it should not be the obligation of the Crown to go further and have, in each case, the municipal engineer with transom and tape as to location, height, etc. to establish conformity to the Regulations. In answer to question No. 1 the Justice of the Peace was right in convicting.
85And, according to s. 182(1) of the H.T.A., the Lieutenant Governor in Council may make regulations requiring or providing for the erection of signs and the placing of markings on any highway or any type or class thereof, and prescribing the types of the signs and markings and the location on the highway of each type of sign and marking, as well as prohibiting the use or erection of any sign or type of sign that is not prescribed:
Regulations, signs and markings
182 (1) The Lieutenant Governor in Council may make regulations requiring or providing for the erection of signs and the placing of markings on any highway or any type or class thereof, and prescribing the types of the signs and markings and the location on the highway of each type of sign and marking and prohibiting the use or erection of any sign or type of sign that is not prescribed.
86But more importantly, s. 182(2) of the H.T.A. provides that all motorists using Ontario highways are required obey the instructions or directions indicated on any sign so erected:
Signs to be obeyed
182 (2) Every driver or operator of a vehicle or street car shall obey the instructions or directions indicated on any sign so erected.
87Furthermore, in enacting legislation in respect to the form, dimensions and placement of a traffic sign, the Ontario Legislature has indeed considered whether traffic signs have to exactly comply to the prescribed size, dimensions, form, and its placement set out in a particular enactment. For example, in their enactment of the Signs Regulation (Highway Traffic Act), R.R.O. 1990, Reg. 615, it is expressly provided under s. 44 of that particular Regulation that the dimensions of a traffic sign may be greater than the dimensions prescribed and illustrated in that Regulation. In addition, even though s. 45 of the Signs Regulation expressly states that a traffic sign shall be so placed as to be visible to traffic approaching the sign from at least 60 meters away, s. 47 on the other hand provides that where the characteristics of a highway make it impracticable to place a sign or pavement markings as specified in this Regulation, then the sign or pavement markings shall be placed so as to comply as nearly as practicable with those requirements:
General
44. The dimensions of a sign may be greater than the dimensions prescribed and illustrated in this Regulation so long as each dimension is increased and, when increased, has the same relation to the other dimensions of the sign as the dimensions prescribed and illustrated in this Regulation have to each other.
45. A sign prescribed by this Regulation, other than a sign prescribed by section 13, 14, 15, 24, 25, 26 or 27, shall be so placed as to be visible at all times for a distance of at least 60 metres to the traffic approaching the sign.
46. No person, other than a municipal corporation or other authority having jurisdiction over a highway, shall erect or maintain a sign prescribed by the Act and regulations.
47. Where the characteristics of a highway make it impracticable to place a sign or pavement markings as specified in this Regulation, the sign or pavement markings shall be placed so as to comply as nearly as practicable with those requirements.
48. No speed limit sign bearing the words "speed limit" is valid.
49. Where a sign is erected in accordance with sections 21, 22, 23 and 34, the sign is internally illuminated, or changed by means of dot or disc matrix or louvers, the sign shall only be legible to approaching drivers during the time of operation and shall comply as nearly as practicable with those requirements and dimensions as prescribed.
50( 1) A sign prescribed by a provision of this Regulation may show days and times other than those shown in the Figure to that provision.
(2) A sign prescribed by a provision of this Regulation shall show the prescribed speed and not 00 km/h, if that is the speed shown in the Figure to that provision.
(3) The signs prescribed by clauses 41(1)(a) and (b) shall show the prescribed number of tonnes and not 00 tonnes as shown in the Figures to those clauses.
51. For the purposes of this Regulation, an area designated by the French Language Services Act means an area designated in Schedule 1 to that Act.
52. A municipality situated in an area designated by the French Language Services Act is not required to comply with the sign requirements for such areas unless it has passed a by-law under section 14 of that Act.
88Ergo, even though s. 1(1) of O. Reg. 608 does not require that a traffic sign informing drivers of commercial motor vehicles over 6.5 meters that those particular vehicles are prohibited from driving or using the left lane of eastbound Highway 401 between the City of Cambridge and Mavis Road in the City of Mississauga, the prosecution is nevertheless not required to prove that the left-lane prohibition traffic sign posted on the Trafalgar Road bridge had complied with the form, size, dimensions, and placement of the sign that is prescribed under ss. 2 and 3 of O. Reg. 608, since there is a presumption that the left-lane prohibition traffic sign had been posted according to the prescribed regulations. In addition, that presumption of regularity has not been rebutted by the defendant, who has the burden to rebut that presumption. As such, in the absence of any evidence that the left-lane prohibition traffic sign had not been posted according to the prescribed requirements of ss. 2 and 3 of O. Reg. 608, then the left-lane prohibition traffic sign posted on the Trafalgar Road bridge is not an invalid traffic sign.
(7) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence For The Charge Of "Prohibited Use Of Left Lane On King's Highway", Contrary To S. 1(1) Of O. Reg. 608?
89For this strict liability offence of "prohibited use of left lane on King's Highway", which is set out under s. 1(1) of O. Reg. 608, the prosecution is only legally required to prove that the defendant has committed the actus reus for that offence.
90In that regards, MTO Officer Whan had observed the commercial dump truck being operated by the defendant using or driving in the eastbound left lane of Highway 401 on August 9, 2017, at 11:16 a.m., in the Town of Milton, when such use of the left lane by the defendant's type and length of motor vehicle is not permitted by regulation. In addition, Officer Whan had measured the length of the dump truck using a tape measure and said that it had measured 9.95 meters in length.
(a) Does the defendant fall within the exceptions set out in subsections 1(1) or 1(2) of O. Reg. 608?
91Furthermore, ss. 1(1) and 1(2) of O. Reg. 608 do provide for exceptions to that left-lane driving prohibition for commercial motor vehicles over 6.5 meters in length that drive in or use the left lane of a highway when it is legally prohibited. However, s. 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, places the burden of proof on the accused person to prove on a balance of probabilities that the statutory exemption or exception operates in favour of the accused person:
Burden of proving exception, etc.
47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
92In respect to the exemptions provided in ss. 1(1) and 1(2) of O. Reg. 608, the prohibition against commercial motor vehicles over 6.5 meters in length driving in the left lane of eastbound Highway 401 does not apply if the commercial motor vehicle over 6.5 meters is a bus, an ambulance, or a fire apparatus, or that the commercial motor vehicle had been actually engaged in maintenance or construction or that there had been an emergency which required the use of the left lane by that commercial motor vehicle at the time and location in question:
1(1) Subject to subsection (2), no person shall operate a commercial motor vehicle or any combination of a commercial motor vehicle and a towed vehicle that exceeds 6.5 metres in length, except a bus, an ambulance or a fire apparatus, in the left lane or, where the left lane has been designated as a high occupancy vehicle lane, in the lane adjacent to the high occupancy vehicle lane of those portions of a highway described in the Schedules.
(2) Subsection (1) does not apply to a commercial motor vehicle engaged in maintenance or construction or where an emergency requires the use of the lane by a commercial motor vehicle.
93And as it came out at trial, there had been no evidence that the defendant's commercial dump truck had been engaged in maintenance or construction or that there had been an emergency that had required the defendant's dump truck to use the left eastbound lane of Highway 401 in the area of the Trafalgar Road bridge and Highway 407, at the time and location in question.
94Furthermore, unless there had been evidence of an emergency or evidence that the defendant's commercial dump truck had actually been engaged in maintenance or construction at the time and location in question, then the act of passing a slower moving vehicle for a short time using the left lane of eastbound Highway 401 is not one of the exemptions enumerated in ss. 1(1) or 1(2) of O. Reg. 608.
95Hence, because there is no evidence that the defendant meets any of the exemptions set out in ss. 1(1) or 1(2) of O. Reg. 608, then the defendant had not been exempt from the application of the left-lane driving prohibition under s. 1(1), while the defendant had been driving the commercial dump truck in the left eastbound lane of Highway 401 in the Town of Milton on August 9, 2017, at 11:16 a.m. Consequently, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence set out in s. 1(1) of O. Reg. 608.
(8) Has The Defendant Established The Defence Of Due Diligence On A Balance Of Probabilities In Respect To The Charge Of "Prohibited Use Of Left Lane On King's Highway", Contrary To S. 1(1) Of O. Reg. 608?
96Now that it has been proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of O. Reg. 608, then in order for the defendant not to be convicted of commttiing that offence the defendant must meet his burden of establishing the defence of due diligence on a balance of probabilities.
97In this part of the analysis, it has to be determined whether the defendant has proven on a balance of probabilities either leg of the due diligence defence that has been established in R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.). Specifically, the defendant has to either prove he had been acting reasonably under a mistaken set of facts, which if true would render the act or omission innocent, or that the defendant had taken all reasonable steps in the circumstances to avoid the occurrence of the prohibited act. If the defendant proves either branch of the defence for the specific offence then the defendant will not be held liable of committing that offence. The test for the due diligence defence is described at p. 374 of R. v. Sault Ste. Marie:
Offences in which there is no necessity for the prosecution to prove the existence of mens rea the doing of the prohibited act prima face 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. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.
98However, in the present case there has been no evidence adduced that the defendant had believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he had taken all reasonable steps in the circumstances to avoid the particular event of driving in the left eastbound lane of Highway 401 in the area of the Trafalgar Road bridge and Highway 407, in the Town of Milton on August 9, 2017, at 11:16 a.m. from occurring. Therefore, the defendant has not established on a balance of probabilities that he has the defence of due diligence which would entitle the defendant to an acquittal of the charge.
99As such, the defendant is guilty of committing the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of the O. Reg. 608.
6. DISPOSITION
100Accordingly, based on the totality of the evidence and the preceding reasons, the prosecution has proven beyond a reasonable doubt that the defendant, Pietro Sisti, is guilty of committing the offence of "prohibited use of left lane on King's Highway", contrary to s. 1(1) of the Restricted Use Of Left Lanes By Commercial Motor Vehicles Regulation (Highway Traffic Act), R.R.O. 1990, Reg. 608. As such, a conviction will be entered against Pietro Sisti.
Dated at the City of Brampton on February 27, 2018.
QUON J.P.
Ontario Court of Justice
Footnotes
1The purpose of restricting the use of left lanes by heavy or long commercial motor vehicles is stated at pp. 111-112 in section 11.1 of Book 5 (Regulatory Signs) of the Ontario Traffic Manual (March 2000):
LANE USE RESTRICTION signs are used to prohibit heavy or long trucks from travelling on designated left lanes of highways with three or more lanes in each direction, where they may impede the flow and/or visibility of other traffic. The lane use restrictions are organized into zones, delimited by BEGINS and ENDS tab signs attached, respectively, to the first and last LANE USE RESTRICTION signs in the zone.
If the lane use restriction is based on length, then the Rb-40 or Rb-40A LANE USE RESTRICTION signs must be used. The length-based LANE USE RESTRICTION signs must be used to restrict commercial vehicles (or commercial vehicles towing other vehicles) that are longer than 6.5 m from travelling in the left lane of designated zones of King's Highways or of municipal roads, as controlled by by-law. Buses and emergency vehicles are excepted from this restriction on provincial highways.
The roads on which LANE USE RESTRICTION signs are used must have three or more lanes in each direction and a posted speed of 80 km/h or greater.
Lane use restrictions do not apply:
- to road building or maintenance equipment while maintaining the road or removing snow from the lane use restriction zone; or
- in an emergency.
Location Criteria
Overhead versions of the LANE USE RESTRICTION signs must be installed directly above the left lane, in order to be visible to drivers of commercial motor vehicles entering or travelling along the highway.
Spacing of LANE USE RESTRICTION signs should typically be in the range of 4 km to 8 km. They should be posted immediately downstream of each interchange or intersection.
Legal Status
Highway Traffic Act, Regulation 608 (R.R.O. 1990).
Rb-40 and Rb-40A signs are also enforceable in municipalities by municipal by-law.
Rb-39 and Rb-39A signs are only enforceable in municipalities by municipal by-law.
2See history of Ontario's King's Highways at http://www.thekingshighway.ca/