Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-07-09
FILE:
7912/GAR
CASE NAME:
7912 v. Registrar of Motor Vehicles
Appeal From a Notice of Proposal of The Director of Vehicle Inspection Standards under Subparagraphs 91(8)(a),(b),(d) and (e) and Subsection 93(a)(b) and (c) of the Highway Traffic Act, R.S.O. 1990, c. H.8 to Revoke a Motor Vehicle Inspection Station Licence and to Revoke a Motor Vehicle Inspection Station Mechanic’s Registration
Pro Street Auto Services & Sales Inc. and Joe Ramono
Appellants
-and-
Director of Vehicle Inspection Standards
Respondent
DECISION AND ORDER on MOTION
ADJUDICATOR:
Laurie Sanford, Vice-Chair
APPEARANCES:
For the Appellants:
W. Glen Orr, Q.C., Counsel
For the Respondent:
Patrick S. Moore, Counsel
Henry Ngan, Counsel
Michael Dunn, Counsel
Heard in Toronto:
June 9, 2014
DECISON AND REASONS
The Appellants have brought a series of applications under the Canadian Charter of Rights and Freedoms (the “Charter”) in the course of an appeal to the Licence Appeal Tribunal (the “Tribunal”) from Notices of Proposal by the Director of Vehicle Inspection Standard (the “Director”) to revoke the Motor Vehicle Inspection Station Licence of Pro Street Auto Services & Sales Inc. (“Pro Street”) and to revoke the registration of Joe Ramono as a Motor Vehicle Inspection Mechanic.
Specifically, the Appellants brought an application for the following relief:
- An Order declaring Subsection 98(3) and Subsections 225 (1), (2) and (3) of the Highway Traffic Act R.S.O. 1990, c. H.8 (the “HTA”) unconstitutional under the combined operation of Sections 1,7,8,11(d) and 24 of the Charter;
- An Order under Section 8 of the Charter excluding certain evidence;
- An Order under Section 8 and Subsection 24(2) excluding certain evidence;
- An Order under Section 10 of the Charter excluding certain evidence, and
- An Order under Section 7 and Subsection 24(2) of the Charter excluding all utterances or statements made by the Appellant Joe Ramono to persons in authority on the grounds that his right to remain silent was violated.
The Appellants have abandoned their application for an Order declaring Subsection 98(3) and Subsections 225 (1), (2) and (3) of the HTA unconstitutional under the Charter. The Appellants reserve their right to assert that these sections of the HTA are unconstitutional in the context of their use in this case. The Director takes the position that sections of the HTA cannot be declared unconstitutional in the particular circumstances of any case in a vacuum; rather, relief must be sought under a specific section of the Charter.
The parties agreed to proceed at the outset of the hearing with those parts of the applications which might be decided without the testimony of witnesses. Those parts of the applications which require testimony will be dealt with during or at the conclusion of the hearing. While the parties did make submissions on the question of whether the Tribunal is the appropriate forum to raise issues under Section 8 of the Charter, it was decided during submissions that witness testimony would be required before this matter could be decided. It was also agreed that any decision about the applicability of Section 10 of the Charter to the issues in this hearing should be dealt with after the evidence is heard.
Mr. Orr, Counsel for the Appellants, advised that he might seek a voir dire or “blended” voir dire in relation to certain evidence. The Tribunal advised that voir dire proceedings were not usually held during a Tribunal hearing and that the preferred course would be to make submissions as to the admissibility of the evidence and the weight which ought to be given to it during closing submissions. Objections to any particular evidence will also be entertained during testimony.
Mr. Ngan, Counsel for the Director submitted that it was appropriate to deal with the threshold issue of whether or not Sections 7 and 11 of the Charter are appropriately engaged in a licensing hearing. Mr. Orr opposed this suggestion and submitted that it was necessary for the Tribunal to hear certain testimony before reaching a decision on the matter of whether Sections 7 and 11 of the Charter might be engaged in this matter. For the reasons noted below, the Tribunal concluded that it was appropriate to address the question of whether Sections 7 and 11 of the Charter have any application in these proceedings.
Section 11 of the Charter provides:
- Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Section 11 of the Charter was invoked by the Appellants as part of their constitutional challenge of Subsection 98(3) and Subsections 225 (1), (2) and (3) of the HTA. It remains relevant only to the extent that the Appellants wish to rely on it to apply for a declaration or ruling that these sections of the HTA are unconstitutional in the context of their use in this case. The wording of Section 11 is clear on its face. The rights set out in Section 11 apply only to “any person charged with an offence. . . “. Mr. Ramono has apparently been charged with an offence in another forum but he is before the Tribunal on an appeal from a regulatory decision. There is no charge or offence involved. Therefore, Section 11 has no application in the matter before the Tribunal. A succinct statement of the principle involved was provided by McLachlin J. (as she then was) in R. v. Shubley, [1990] 1 S.C.R., pp 18-19: “The question of whether proceedings are criminal in nature is concerned not with the nature of the act which gave rise to the proceedings, but the nature of the proceedings themselves”.
The proceedings before this Tribunal are not criminal and do not deal directly with any offence with which an Appellant may be charged. Section 11 is not applicable to these proceedings.
Section 7 of the Charter reads:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Mr. Ngan submits that this section is not applicable to the Appellant Pro Street which, as a corporation, does not possess the interests protected under Section 7 of the Charter. Mr. Ngan cites the Supreme Court of Canada decision in Irwin Toy Ltd. v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927 in support of this submission. At paragraph 96 of the decision, the Court held:
That is, read as a whole, it appears to us that this section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase “Everyone has the right to life, liberty and security of the person” serves to underline the human element involved; only human beings can enjoy these rights. “Everyone” then, must be read in light to the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings. . . . .
Mr. Orr did not address the ability of Pro Street to claim the protection of Section 7 of the Charter, and the Tribunal finds that the protection of Section 7 is not available to Pro Street in this matter.
The situation as regards Mr. Ramono is not as clear. Mr. Ngan submits that the further the proceedings are from issues of “life, liberty and security of person”, the less applicable Section 7 becomes. As this proceeding, in Mr. Ngan’s submission, relates only to Mr. Ramono’s economic interests, Section 7 should not be engaged in this matter. Mr. Orr did not produce a case where Section 7 had been applied in a purely administrative proceeding. Mr. Ngan cited the Ontario Court of Appeal case of Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA), [2004] O.J. No. 5176 in which Mr. Justice Blair concluded, at paragraph 44:
I am satisfied, therefore, that there is no constitutionally protected right to practise a profession, and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter.
It should be noted that Mr. Justice Blair did go on to consider the applicability of Section 7 in case he was in error in his conclusion that it did not apply to the right to engage in a particular economic activity.
In the Ontario Court of Appeal case of R. v. Schmidt, [2014] O.J. No. 1074, also cited by Mr. Ngan, Mr. Justice Sharpe concluded, at paragraph 38:
. . . . . While the Supreme Court of Canada has not foreclosed the possibility that s. 7 may evolve to protect certain economic rights such as a basic minimum level of subsistence, the proposition that s. 7 protects freedom of contract or the right to engage in the economic activity of one’s choice has been rejected. . . . .
Mr. Orr did not produce a case where Section 7 had been applied in situation where the ability of the parties to carry on a regulated business was at issue. On the face of it, it would appear that Section 7 of the Charter does not apply in this proceeding. However, Mr. Orr asserts that his client was unlawfully detained during one or more of the searches or inspections of Pro Service. Mr. Ngan submits that, if this is proven, then the appropriate section of the Charter to deal with the matter is Section 10, which reads:
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Section 7 and Section 10 address different principles of law and protect distinct rights. The Tribunal is reluctant to preclude Mr. Romano from the relief he seeks under Section 7 of the Charter if he can demonstrate that he was deprived of his liberty without the operation of the principles of fundamental justice. Therefore, the Tribunal will not rule on the applicability of Section 7 of the Charter to the detention that Mr. Romano alleges until the evidence in this matter has been heard.
It is important to note that both the Tribunal and the Divisional Court have repeatedly held that proceedings before the Tribunal are subject to the rules of natural justice. At stake is the Appellants’ ability to pursue a particular livelihood and the public’s right to have safe and effective motor vehicle inspections. These are serious matters. It is the role of the Tribunal to balance the interests of the public in regulating the operation of Motor Vehicle Inspection Stations and the regulation of Motor Vehicle Inspection mechanics with the qualified right of the Appellants to be licenced or registered under the HTA. Thus, even if Section 7 of the Charter does not apply to this proceeding, the rules of natural justice do.
Mr. Orr advised that the Appellants might seek a publication ban on the hearing of this matter. Mr. Ngan advised that the Director might contest the motion. The Tribunal directed Mr. Orr to provide as much advance notice as possible of the Appellants’ intentions so that the Director might prepare for the motion.
The Tribunal thanks Counsel for their assistance in these applications and orders and stipulates as follows:
Section 7 of the Charter does not apply to the Appellant Pro Service in these proceedings.
Section 11 of the Charter does not apply in these proceedings.
The hearing in this matter will re-commence on September 3, 2014 at 9:30 a.m. at the Tribunal’s Chambers, 20 Dundas Street West, 5th Floor, Toronto, Ontario and will continue, if necessary, on September 4, 5, 29 and 30, 2014.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
RELEASED: July 9, 2014