Court File and Parties
Court File No.: Hamilton 13/4069 & 4070 Date: 2017-10-01 Ontario Court of Justice
Between: Her Majesty the Queen (Ontario Ministry of Transportation) (Respondent)
— And —
Inter County Concrete Products Limited & Pedrag Petkovic (Appellants)
Before: Justice George S. Gage
Heard on: September 5, 2017
Appeal Reasons released on: October 1, 2017
Counsel:
- M. Peachey, for the Crown
- Jodi Burness – Burness Paralegal Services, for the appellants
GAGE J.:
Introduction
1 This is an appeal of the decision of Justice of the Peace H.J. Brown dated October 29, 2015 in which he convicted both appellants and sentenced each of them to substantial fines. The appellants appeal both the convictions and the sentences.
2 The Crown alleges that on October 10, 2013 the appellant Inter County Concrete Products Limited (hereinafter referred to as "ICC") committed an offence contrary to section 84.1(1) of the Highway Traffic Act.
3 The Crown alleges that on the same date the appellant Pedrag Petkovic (hereinafter referred to as "Petkovic") committed an offence contrary to section 84(1) of the Highway Traffic Act.
4 The appellant ICC maintains that the wording of the information is fatally flawed and the trial justice erred in dismissing this appellant's motion to quash. The appellant ICC further submits that the trial justice erred in determining that the offence charged was proven beyond a reasonable doubt. In the event that the conviction appeal is unsuccessful ICC submits that the trial justice erred in imposing a fine that was excessive in all the circumstances.
5 The respondent Crown submits that the motion to quash was properly dismissed, that the evidence supports the finding of guilty and that the sentence imposed was not demonstrably unfit.
6 The appellant Petkovic maintains that the trial justice erred in characterizing section 84(1) of the Highway Traffic Act as an absolute liability offence and that error fatally influenced his determination that the offence was proven beyond a reasonable doubt. He also maintains that the finding of guilt was not, in any event, supported by the evidence and that the penalty imposed was excessive.
[7] The respondent Crown admits that the characterization of section 84(1) of the Highway Traffic Act is an error on the part of the trial justice but argues that the error had no impact on the ultimate determination. The Crown submits that the finding of guilt is amply supported by the evidence and the penalty imposed is not demonstrably unfit.
[8] This prosecution is concerned with the condition of the tires of a commercial cement truck operated on October 10, 2013 by the appellant Petkovic and owned on that date by the appellant ICC.
[9] The Crown called three witnesses. The defence called no evidence.
Evidence
Peter Flatt
[10] Peter Flatt is a salesman employed by KAL Tire. On October 10, 2013, he was asked by his manager to attend a service call for Inter County Concrete on the Lincoln Alexander Parkway near Dartnall Road. Kal Tire was called because they do all of the ICC tire work.
[11] Upon arrival, Flatt saw an ICC cement mixer truck and a police cruiser. He parked in front of the cement truck. There was a police officer in the police cruiser. The officer did not get out of the cruiser at any time while Flatt was on scene. There was one person in the cement truck. The person in the cement truck was the only other person there at the time. He spoke to the person in the cement truck. He made an in-court identification of the appellant Petkovic as the person in the cement truck at the scene.
[12] Flatt noted that there was one wheel missing from the left side of the cement truck and there was a wheel lying flat to the rear of the truck on the shoulder.
[13] Flatt cannot say how long the truck was at the side of the road prior to his arrival. He did not see the truck in operation at any time.
[14] Flatt stayed at the scene until the KAL service person arrived.
Sean James Nolan
[15] Sean Nolan is employed by KAL Tire as a road service tire technician. He has been with KAL Tire for six years.
[16] On October 10, 2013 Nolan was dispatched by his employer to a location on the Lincoln Alexander Parkway to assess a "wheel off" situation. He was asked to "figure out why it came off".
[17] Upon arrival, he noted the presence of three vehicles – a police cruiser, a cement truck and the vehicle of KAL tire salesman Peter Flatt.
[18] Nolan noted that the cement truck did not have all of its wheels on it. One wheel was under the axle of the truck and one wheel was in the ditch just behind and to the right of the truck. He did not observe any wheel fasteners.
[19] It would be rare, in Nolan's opinion, to find lug nuts in a "wheel off" scenario. In a wheel off scenario the lug nuts would be the first thing to come off. In the course of his employment prior to October 10, 2013 Nolan has been dispatched to one other "wheel off" situation. This was his second.
[20] Nolan put the wheels in the back of his service truck and waited for an MTO Officer to arrive. When the MTO Officer arrived, there were only two tires in the back of his truck. The two tires in his truck were the two tires he had retrieved from the scene – one rolled up from the ditch and the other from underneath the axle of the cement mixer truck.
[21] The lug bolt configuration and the tire size of the wheels that Nolan retrieved on October 10 are common on cement mixer trucks.
[22] After the MTO Officer arrived Nolan stood at the back of his truck while the MTO Officer assessed the situation. Nolan did not observe the MTO Officer take photographs of the tires in the back of his truck. Nolan did not provide the MTO Officer with any lug nuts.
[23] At the direction of the MTO Officer Nolan re-torqued the lug nuts on the remaining wheels. He used a manual torque wrench to perform the re-torqueing. When using the manual torque wrench, he is not able to assess the looseness of the nut being re-torqued but in his experience, it would not be possible to assess the tightness of a lug nut by hand because the weight of the truck puts pressure on the nut to a degree that they could not be moved by hand.
[24] The cement truck was left at the side of the road when Nolan departed. He did not fix the tires on this cement truck. He made an assessment of the wheels and determined that the stud bolt holes in the wheel rims were so enlarged that the wheels could not be put back on the truck.
Joanne Sheehan
[25] Joanne Sheehan is a Ministry of Transportation officer. At 2 pm Sheehan was dispatched by her employer to attend at a cement mixer truck located on the right side westbound shoulder of the Lincoln Alexander Parkway just west of the Dartnall Road on ramp.
[26] She touched base with a Hamilton Police officer.
[27] She next approached two males located in the vicinity of the cement mixer truck. She asked one of the two males: "Are you the driver?" He answered in the affirmative. A driver licence was produced the photo on which Sheehan compared with the male she was speaking with to confirm his identity as Pedrag Petkovic. Sheehan is not sure whether Petkovic produced the licence or the police officer on scene turned the document over to her. Sheehan took a photo of the driver licence. (Exhibit 1) Petkovic also produced at Sheehan's request the registration certificate for the vehicle. He was not able to produce either the CVOR certificate or the insurance slip.
[28] Sheehan noted that the other male on scene was a technician from KAL Tire.
[29] The cement truck was on the right shoulder. The truck had been jacked up and a block of wood had been placed under the truck axle near the wheel drum of a missing wheel. Sheehan recorded the Ontario licence marker as 449 2YF. The Crown produced a document certified under the signature of the Registrar of Motor Vehicles and the seal of the Ministry of Transportation showing that as of October 10, 2013 the plate identified as 449 2YF was registered to Inter County Concrete Products Limited of 70 Ewart Avenue in Brantford and associated with a vehicle identified as a 2003 Mack Model 700 commercial vehicle. (Exhibit 10)
[30] The wheel drum was bare. The studs were sticking out. One of the studs was sheared off and missing. The wheel was missing. Sheehan took a photo of the condition of the wheel drums and wheels. (Exhibit 2)
[31] The KAL technician gave her 8 wheel fasteners. Sheehan photographed the fasteners. (Exhibit 3)
[32] Two wheels were in the back of the KAL truck.
[33] Sheehan took a photo of one of the wheels which she identified as the outer tire of a set of duals. (Exhibit 4) The tire on the wheel was an R22.5 radial. A second photo of the same tire shows damage to the stud holes – elongation of the holes and metal curling on the edges. (Exhibit 5)
[34] Sheehan also photographed the second wheel in the KAL truck which she identifies as the inner wheel of a set of duals. The photo shows similar elongation and curling damage to the stud holes on this wheel. (Exhibit 6) She did not manipulate the tires in order to photograph them. She concedes that ten stud holes is a common configuration and the tires were a commonly used size. She concluded that the tires were from the cement mixer truck on the basis of the presence of dry, hardened, crusty cement on the tires in the KAL truck.
[35] One of the two wheels had marks consistent with the hub rubbing against the wheel as the fasteners loosened. (Exhibit 7).
[36] There was a label from the Barton Truck Centre affixed to the driver side window that was photographed by Sheehan (Exhibit 8) and purports to show that the hub pilot assembly wheels have been changed and torqued to 500 ft. lbs. at the odometer reading of 137,113 km and a requirement that the wheels be re-torqued at or before 100,000 km after that mileage. She has no indication that the tires were not re-torqued.
[37] At Sheehan's request, Petkovic produced for her his pre-trip vehicle inspection report showing no problems when inspected at "6". The inspection report was photographed by Sheehan (Exhibit 9). The company name on the inspection report is Inter County Concrete. The company address is filled in as "1875 Barton Street. Ham.Ont". It is dated 10/10/13. It is signed by Pete Petkovic. It references a vehicle with Ontario licence marker 4492YF and shows an odometer reading of 1373006.
[38] A "Carrier Record" under the seal of the Ministry of Transportation was produced and made Exhibit 11. It shows Inter County Concrete Products Limited as an operator as of October 10, 2013 with a CVOR number of 009-322-890.
[39] A "Driver Record" under the seal of the Ministry of Transportation was produced and marked as Exhibit 12. It shows Pedrag Petkovic to be a licenced A class driver with an Air Brake endorsement.
[40] After reviewing the documents Sheehan inspected the remaining drive wheels for inflation and the tightness of the wheel fasteners. She found that all of the wheel fasteners on the "steers" were tight but she found that she was able to move 20 of the 30 fasteners on the rest of the wheels by hand. She instructed the tire technician to re-torque them.
[41] In the course of her investigation Sheehan received documents from KAL tire that included an invoice and a service work order. (Exhibit 13) The documents reference service provided to "ICC" between 8:48 am and 11 am on 10/07/13 on Unit 320 with licence marker 4492YF including installation of 8 new retread tires on the wheel axles.
The Charges set out in the Information & Wording of relevant HTA sections
[42] The information charges that ICC: "On or about the 10th day of October, in the year 2013, at Lincoln Alexander Parkway did commit the offence of did unlawfully permit operation of a commercial motor vehicle, bearing Ontario registration 449 2YF from which the wheel became detached from the said commercial motor vehicle while on a highway, contrary to Highway Traffic Act section 84.1(1).
[43] The wording of section 84.1 of the Highway Traffic Act is as follows:
Offence if wheel detaches from commercial motor vehicle
84.1 (1) Where a wheel becomes detached from a commercial motor vehicle, or from a vehicle being drawn by a commercial motor vehicle, while the commercial motor vehicle is on a highway, the operator of the commercial motor vehicle and the owner of the vehicle from which the wheel became detached are guilty of an offence. 1997, c. 12, s. 12.
Exception
(2) If a wheel is detached for the purpose of carrying out a roadside repair, subsection (1) does not apply while the wheel is so detached. 2005, c. 26, Sched. A, s. 13 (1).
Penalty
(3) Upon conviction of an offence under subsection (1), the person is liable to a fine of not less than $2,000 and not more than $50,000. 1997, c. 12, s. 12.
No imprisonment or probation
(4) A person convicted of an offence under subsection (1) is not liable to imprisonment or to a probation order under subsection 72 (1) of the Provincial Offences Act as a result of the conviction or as a result of default in payment of the fine resulting from the conviction. 1997, c. 12, s. 12.
Absolute liability offence
(5) It is not a defence to a charge under subsection (1) that the person exercised due diligence to avoid or prevent the detaching of the wheel. 1997, c. 12, s. 12.
Deemed owner
(6) For the purpose of this section, the holder of the permit or of the plate portion of the permit shall be deemed to be the owner of the vehicle, if the number plate displayed on the vehicle at the time the offence was committed corresponds to the permit, unless the permit holder proves that the number plate was displayed on the vehicle without the permit holder's consent. 1997, c. 12, s. 12.
Definitions
(7) In this section,
"operator" means,
(a) the person directly or indirectly responsible for the operation of a commercial motor vehicle, including the conduct of the driver of, and the carriage of goods or passengers, if any, in, the commercial motor vehicle or combination of vehicles, and
(b) in the absence of evidence to the contrary, where no CVOR certificate, as defined in subsection 16 (1), or lease applicable to a commercial motor vehicle, is produced, the holder of the plate portion of the permit for the commercial motor vehicle; ("utilisateur")
"wheel" includes a major component of a wheel, such as a wheel rim or wheel assembly, and a large piece of a wheel or of a major component of a wheel, but does not include a tire or large piece of a tire. ("roue") 2005, c. 26, Sched. A, s. 13 (2, 3).
Same
(8) In this section and in sections 84.2 and 84.3,
"commercial motor vehicle" does not include a commercial motor vehicle, other than a bus, having a gross vehicle weight, as defined in subsection 114 (1), or manufacturer's gross vehicle weight rating, or gross vehicle weight for the purpose of determining the permit fee under subsection 121 (1) of 4,500 kilograms or less; ("véhicule utilitaire")
"permit" means a permit issued under subsection 7 (7) or a vehicle permit issued by another province or state. ("certificat d'immatriculation") 2005, c. 26, Sched. A, s. 13 (2).
[44] The information charges that Petkovic: "On or about the 10th day of October in the year 2013 at the City of Hamilton, did commit the offence of did drive a motor vehicle bearing Ontario registration 449 2YF on a highway with the said vehicle being in such a dangerous or unsafe condition as to endanger any occupant or person on the highway, contrary to Highway Traffic Act section 84(1).
[45] The wording of section 84 of the Highway Traffic Act is as follows:
Penalty for driving unsafe vehicle
84. (1) No person shall drive or operate or permit the driving or operation upon a highway of a vehicle, a street car or vehicles that in combination are in a dangerous or unsafe condition. R.S.O. 1990, c. H.8, s. 84; 2009, c. 33, Sched. 26, s. 3 (9).
Vehicle with critical defect deemed unsafe
(1.1) If a commercial motor vehicle or trailer has one or more critical defect, as prescribed by regulation, it shall be deemed to be in a dangerous or unsafe condition. 1997, c. 12, s. 11; 2009, c. 33, Sched. 26, s. 3 (10).
Penalty
(2) Every person who contravenes this section is guilty of an offence and, if the offence was committed by means of a commercial motor vehicle within the meaning of subsection 16 (1), on conviction is liable to a fine of not less than $400 and not more than $20,000. 1996, c. 20, s. 19
[46] Section 25 of the Provincial Offences Act provides as follows:
25 (1) Each offence charged in an information shall be set out in a separate count. R.S.O. 1990, c. P.33, s. 25 (1).
Allegation of offence
(2) Each count in an information shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the defendant committed an offence therein specified. R.S.O. 1990, c. P.33, s. 25 (2).
Reference to statutory provision
(3) Where in a count an offence is identified but the count fails to set out one or more of the essential elements of the offence, a reference to the provision creating or defining the offence shall be deemed to incorporate all the essential elements of the offence. R.S.O. 1990, c. P.33, s. 25 (3).
Idem
(4) The statement referred to in subsection (2) may be,
(a) in popular language without technical averments or allegations of matters that are not essential to be proved;
(b) in the words of the enactment that describes the offence; or
(c) in words that are sufficient to give to the defendant notice of the offence with which the defendant is charged. R.S.O. 1990, c. P.33, s. 25 (4).
More than one count
(5) Any number of counts for any number of offences may be joined in the same information. R.S.O. 1990, c. P.33, s. 25 (5).
Particulars of count
(6) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the defendant reasonable information with respect to the act or omission to be proved against the defendant and to identify the transaction referred to. R.S.O. 1990, c. P.33, s. 25 (6).
Sufficiency
(7) No count in an information is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of this section and, without restricting the generality of the foregoing, no count in an information is insufficient by reason only that,
(a) it does not name the person affected by the offence or intended or attempted to be affected;
(b) it does not name the person who owns or has a special property or interest in property mentioned in the count;
(c) it charges an intent in relation to another person without naming or describing the other person;
(d) it does not set out any writing that is the subject of the charge;
(e) it does not set out the words used where words that are alleged to have been used are the subject of the charge;
(f) it does not specify the means by which the alleged offence was committed;
(g) it does not name or describe with precision any person, place, thing or time; or
(h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained. R.S.O. 1990, c. P.33, s. 25 (7); 2009, c. 33, Sched. 4, s. 1 (33).
Idem
(8) A count is not objectionable for the reason only that,
(a) it charges in the alternative several different matters, acts or omissions that are stated in the alternative in an enactment that describes as an offence the matters, acts or omissions charged in the count; or
(b) it is double or multifarious. R.S.O. 1990, c. P.33, s. 25 (8); 1993, c. 27, Sched.
Need to negative exception, etc.
(9) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information. R.S.O. 1990, c. P.33, s. 25 (9).
Legal Principles
Proof Beyond a Reasonable Doubt
[47] It is a fundamental feature of our criminal law that the accused is presumed innocent until proven guilty.
[48] In order to secure a finding of guilt the Crown must satisfy the Court that the allegations are proven "beyond a reasonable doubt". The burden of proof rests with the Crown throughout the trial. It never shifts to the accused.
[49] A reasonable doubt is based on reason and common sense and is logically connected to the evidence or absence of evidence. More is required than proof that the accused is probably guilty. On a spectrum of standards of proof, "beyond a reasonable doubt" falls closer to absolute certainty than to proof on a balance of probabilities.1
Drawing Inferences
[50] At paragraphs 23 through 31 of his certiorari ruling in R. v. Munoz Justice Ducharme discusses the process of identifying reasonable inferences from accepted or proven facts. The principles that I derive and accept from his discussion are as follows:
The process of inference drawing engages inductive reasoning which derives conclusions based on the uniformity of human experience;
An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts otherwise established in the proceedings;
The boundary which separates permissible inference from impermissible speculation or conjecture is often very difficult to locate;
Inferences must be capable of being reasonably and logically drawn from a fact or group of facts established by the evidence;
Impermissible speculation or conjecture will result where the primary facts on the basis of which the inference rests are not properly established – the necessary foundation is not present;
Impermissible speculation may also occur where the properly established primary facts or premises will not reasonably and logically sustain or support the proposed inference – conjecture results when the adjudicator overreaches;
The process of drawing inferences from evidence is not the same as speculating even where circumstances permit an educated guess;
The line between a reasonable inference that may permissibly be drawn from basic facts and impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact then a conclusion may be drawn because there is a reasonable probability that the conclusion flows from the proven facts;
The requirements of "logical probability" and "reasonable probability" do not confine the exercise to obvious or easy inferences – difficult inferences can be both reasonable and logical;
The process of drawing inferences is not a process of subjective imagination but rather one of rational explication.
Amending the Information/Offence known to Law
[51] Justice De Grandpre in R v Cote made the following pronouncement in relation to the sufficiency of an information:
The golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial. When, as in the present case, the information recites all the facts and relates them to a definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure.
[52] Justice Dickson noted in R v Moore in relation to Criminal Code informations and the impact of R v Cote:
The result of these two cases is that it is no longer possible to say that a defective information is automatically a nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s. 529 gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c). A charge that is this defective would have to be quashed. R. v. Hunt, Nadeau, and Paquette provides an example of a defective charge of this sort. The accused was apparently charged with intimidation by blocking a highway, but it was not clear from the information who was alleged to have blocked the highway nor did the charge refer to a Code section. The Court of Appeal held that the charge was so defective it could not be amended.
The Principles Applied
Did the trial justice err in dismissing the motion to Quash the count in the information under which the Appellant ICC was charged?
[53] The reasons of the trial justice dismissing the application to quash are brief.
[54] The charge against ICC as contained in the information properly identifies the following particulars:
- The date of the offence;
- The location of the offence;
- A particularized identification of the commercial motor vehicle involved – Ontario registration 4492YF;
- The nature of the issue with the commercial motor vehicle – wheel became detached;
- The statute under which the charge was laid and the section number of the statute alleged to be contravened – HTA 84.1(1)
[55] While the information might have been worded differently the wording was sufficient to give the accused fair notice of the offence with which it was charged. The information was not a nullity. The justice of the peace did not err in dismissing the motion to quash.
Did the trial justice err in convicting ICC?
[56] The offence in issue is proven if the Crown is able to establish beyond a reasonable doubt: (1) that a wheel became detached from a vehicle; (2) that the vehicle was on a highway when the wheel became detached; (3) that the vehicle from which the wheel became detached was a commercial vehicle; and, (4) ICC is the owner or the operator of the commercial vehicle from which the wheel became detached.
[57] The fundamental reasoning of the trial justice is found at pages 175 and 176 of the transcript. While the analysis is perhaps not as fulsome as what follows the reasoning boils down to this:
a truck with two wheels missing was located by the MTO officer on the shoulder of the Lincoln Alexander Parkway;
a Kal Tire sales representative was sent to the location of the truck at the request of ICC;
the KAL Tire tire technician dispatched by KAL to remedy the problem found two wheels near the truck that matched the stud configuration of the missing wheels;
the truck is a cement mixer;
the two wheels found near the truck by the tire technician have dried cement on them;
there were no other unaffixed wheels located nearby;
the stud holes on the wheels found by the tire technician are elongated and have "curling" marks consistent with wear produced as fasteners gradually loosen;
the truck is registered as a commercial vehicle;
the Ministry registration documentation confirms that ICC is a registered commercial vehicle operator;
the Ministry documentation also shows that the commercial vehicle with registration and licence particulars matching the truck at the side of the Lincoln Alexander Parkway is registered to ICC;
since the Lincoln Alexander Parkway is a divided 4 lane controlled access highway and in that sense, is remote (isolated may have been a better choice of word) from other roadways, parking lots or repair facilities, the only logical and reasonable inference to be drawn from the circumstances is that the wheels found by the tire technician near the truck became detached from the truck when it was being driven on the Lincoln Alexander Parkway.
[58] Having reviewed all of the evidence I am satisfied that there is an evidentiary foundation for the direct evidence and the reasonable and logical inferences that support the reasoning summarized in the preceding paragraph.
[59] These findings and inferences are sufficient to support a finding of guilt on the charge against ICC.
Is the mischaracterization of section 84(1) as an absolute liability offence fatal to the finding of guilt against Petkovic?
[60] Since the trial justice excluded consideration of due diligence by his erroneous finding that the offence with which Petkovic was charged is an absolute liability offence it is impossible to know how he might have assessed the impact of the limited evidence that might have been considered in relation to that offence.
[61] A portion of the evidence that was pertinent to Petkovic's conviction was the evidence of Sheehan concerning remaining fasteners that could be loosened by hand. There was a conflict in the evidence about that issue as between Sheehan and Nolan that was not adequately addressed or resolved in the reasons of the trial justice.
[62] In these circumstances, the conviction cannot stand. Petkovic is entitled to a new trial.
Sentence Appeal of ICC
[63] The penalty provided for in the legislation is a minimum fine of $2000 and maximum fine of $50000.
[64] ICC has no prior record of convictions. The Crown conceded that the Commercial Vehicle Operator summary disclosed "an above average company in terms of its' safety record".
[65] The trial justice did not have any evidence as to the circumstances under which the wheels became detached from the truck. There is no evidence that anyone on the highway was imperilled in the process.
[66] The trial justice was appropriately cognizant of the documentation showing that the wheels had been recently torqued.
[67] I agree with the submission made by the appellant that the trial justice erred in placing undue emphasis on potential consequences from wheel detachments which were not in evidence.
[68] The excellent safety record of ICC and lack of any prior convictions and the lack of any deleterious consequence to any other user of the highway, in my view, dictates a penalty close to the minimum provided for in the legislation.
[69] That said, the penalty should also properly reflect the size of the company in order that the fine does not represent a licence for illegal behaviour.
[70] With this in mind the fine is varied to twice the legislated minimum.
Ruling
[71] The conviction appeal of ICC is dismissed. The sentence appeal of ICC is allowed and the sentence is varied to a fine of $4000.
[72] The conviction appeal of Petkovic is allowed. The conviction is set aside and a new trial is ordered.
Released: October 1, 2017
Signed: "Justice George S. Gage"
Footnotes
1 R v Starr (2000), 2000 SCC 40, 147 CCC (3rd) 449 at 544
2 [2006] 3269
3 [1988] 43 at paragraph 16
4 R. v. Hunt, Nadeau, and Paquette (1974), 16 C.C.C. (2d) 382 (B.C.C.A.)