Her Majesty the Queen v. St. Lawrence Cement Inc. [Indexed as: R. v. St. Lawrence Cement Inc.]

60 O.R. (3d) 712

[2002] O.J. No. 3030

Docket No. C36943

Court of Appeal for Ontario,

Charron, Borins and Feldman JJ.A.

August 2, 2002

Evidence -- Judicial notice -- Emission Standards Guide incorporated by reference in regulation -- Regulation published in Ontario Gazette -- Regulation did not include text of Guide -- Effect of incorporation by reference was that text of Guide became part of text of regulation -- Section 5(4) of Regulations Act requiring that judicial notice be taken of regulations which have been published in Ontario Gazette -- Justice of the Peace required to take judicial notice of Guide -- Justice erring in acquitting defendant of operating vehicle that contravened emission [page713] standards on basis that Crown had not proved Guide -- Regulations Act, R.S.O. 1990, c. R.21, s. 5(4) -- Ontario Regulation 361/98.

The defendant was charged with operating a heavy diesel- fuelled motor vehicle that contravened emission standards contrary to s. 12(5) of O. Reg. 361/98 made under the Environmental Protection Act, R.S.O. 1990, c. E.19. The relevant emission standards are contained in a document entitled Drive Clean Guide (the "Guide") published by the Ministry of the Environment. The Guide is adopted and incorporated by reference in the regulation by s. 12(2) of the Regulation, and the regulation was published in the Ontario Gazette as required by s. 5(1) of the Regulations Act, although the regulation did not include the text of the Guide. At the defendant's trial before a justice of the peace, the evidence established that its motor vehicle exceeded the emission standards in the Guide, but the justice of the peace acquitted the defendant on the basis that the Crown had not proved the Guide. The acquittal was upheld by the Ontario Court of Justice. The Crown appealed.

Held, the appeal should be allowed.

Section 5(4) of the Regulations Act provides that judicial notice is to be taken of regulations that have been published in the Ontario Gazette. The Guide was part of the regulation as it was incorporated by reference in the regulation. The effect of incorporation by reference is that the material incorporated is considered to be part of the text of the legislation. Because the text of the Guide was effectively written into s. 12(2) of the regulation by the doctrine of incorporation by reference, and because the regulation had been published in the Ontario Gazette, the Crown was not required to prove the Guide, and the justice of the peace was required to take judicial notice of it.

APPEAL from a judgment dismissing an appeal from an acquittal on a charge of operating a vehicle that contravened emission standards. [page714]

R. v. Sims (2000), 2000 BCCA 437, 148 C.C.C. (3d) 308 (B.C.C.A.) (sub nom. R. v. Collins), apld Other cases referred to Ainsley Financial Corp. v. Ontario Securities Commission (1994), 1994 2621 (ON CA), 21 O.R. (3d) 104, 121 D.L.R. (4th) 79 (C.A.); Denison Mines Ltd. and Ontario Securities Commission (Re) (1981), 1981 1732 (ON SC), 32 O.R. (2d) 469, 122 D.L.R. (3d) 98 (Div. Ct.); R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1 Statutes referred to Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 176, 177 Evidence Act, R.S.O. 1990, c. E.23, ss. 27, 29, 32, 36 Interpretation Act, R.S.O. 1990, c. I.11, s. 7(1) Regulations Act, R.S.O. 1990, c. R.21, s. 5 Rules and regulations referred to O. Reg. 361/98 ("Environmental Protection Act"), ss. 1, 12 Authorities referred to Bennion, F., Statutory Interpretation, 3rd ed. (London: Butterworths, 1997) Schiff, S., Evidence in the Litigation Process, 4th ed. (Scarborough, Ont.: Carswell, 1993) Sopinka, J., S. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999)

Isabelle O'Connor and Laura Nemchin, for appellant. Neal J. Smitheman and Karyn Wasserstein, for respondent.

The judgment of the court was delivered by

[1] BORINS J.A.: -- The respondent, St. Lawrence Cement Inc., was acquitted of the offence of operating a heavy diesel- fuelled motor vehicle that contravened emission standards contrary to s. 12(5) of Ontario Regulation 361/98 made under the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA"). The relevant emission standards are contained in a document entitled Drive Clean Guide (the "Guide") published by the Ministry of the Environment. The Guide is adopted and incorporated by reference in the regulation by s. 12(2) of the regulation. Subsections 12(4) and (5) mandate compliance with the emission standards set out in the Guide.

[2] At the respondent's trial before a justice of the peace, although the evidence established that its motor vehicle exceeded the emission standards in the Guide, the justice of the peace acquitted the appellant because, in her view, the Crown had not proved the Guide. The acquittal was upheld by the Ontario Court of Justice appeal court. The Crown now appeals to this court, with leave, from the decision of the Ontario Court of Justice.

[3] The only issue in this appeal is whether it was necessary for the Crown to prove the Guide, or whether the court was required by s. 5(4) of the Regulations Act, R.S.O. 1990, c. R.21 to take judicial notice of the Guide.

[4] I would allow the appeal. As I will explain, the justice of the peace was required to take judicial notice of the Guide.

The Relevant Legislation, as Amended

[5] To place the issue in context, it is helpful to examine the relevant provisions of the EPA, the regulation made under the EPA, the Interpretation Act, R.S.O. 1990, c. I.11 and the Regulations Act.

[Environmental Protection Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html)

176(2) The Lieutenant Governor in Council may make regulations relating to Part III,

(d) prescribing the standards of emission into the natural environment of any contaminant or any by- product or product of combustion with which any motor or motor vehicle or any class or type of motor or motor vehicle shall comply and providing for the testing and inspection of any such motor, motor vehicle, class or type; [page715]

(2.1) A regulation under clause (2)(d) may prescribe standards of emission with reference to any criteria that the Lieutenant Governor in Council considers appropriate, including but not limited to standards prescribed with reference to the visibility or opacity of emissions.

(4) A regulation may adopt by reference, in whole or in part, with such changes as the Lieutenant Governor in Council considers necessary, any code, formula, standard, protocol or procedure, and may require compliance with any code, formula, standard, protocol or procedure so adopted.

(5) The power to adopt by reference and require compliance with a code, formula, standard, protocol or procedure in subsection (4) includes the power to adopt a code, formula, standard, protocol or procedure as it may be amended from time to time.

(6) The adoption of an amendment to a code, formula, standard, protocol or procedure that has been adopted by reference comes into effect upon the Ministry publishing notice of the amendment in The Ontario Gazette or in the registry under the Environmental Bill of Rights, 1993.

[Ontario Regulation 361/98](https://www.canlii.org/en/on/laws/regu/o-reg-361-98/latest/o-reg-361-98.html)

1(1) In this Regulation,

"Drive Clean Guide" means the Ministry of the Environment publication entitled "Drive Clean Guide" and dated February 1, 1999, as amended from time to time;

12(1) This section applies with respect to a heavy vehicle that operates on diesel fuel.

(2) The maximum emission standard set out in Table 12 of the Drive Clean Guide for motor vehicles of a model year set out in that Table is prescribed for those motor vehicles.

(4) Every motor vehicle for which emission standards are prescribed in this section shall comply with those standards.

(5) No person shall operate or cause or permit the operation of a motor vehicle that does not comply with subsection (4).

[Interpretation Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i11/latest/rso-1990-c-i11.html)

7(1) Every Act shall be judicially noticed by judges, justices of the peace and others without being specially pleaded.

[Regulations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-r21/latest/rso-1990-c-r21.html)

5(1) Every regulation shall be published in The Ontario Gazette within one month of its filing.

. . . . . [page716]

(3) A regulation that is not published is not effective against a person who has not had actual notice of it.

(4) Publication of a regulation,

(a) is, in the absence of evidence to the contrary, proof of its text and of its making, its approval where required, and its filing; and

(b) shall be deemed to be notice of its contents to every person subject to it or affected by it, and judicial notice shall be taken of it, of its contents and of its publication.

(Emphasis added)

The Positions of the Respondent and the Appellant

[6] It was common ground before the justice of the peace, the appeal court judge and this court that pursuant to s. 177(4) of the EPA, the Guide was properly adopted by reference in s. 12(2) of the regulation, and that the regulation was published in The Ontario Gazette as required by s. 5(1) of the Regulations Act, although the regulation did not include the text of the Guide.

[7] It has been the position of the respondent throughout that because the Guide was not published together with the regulation, it could not constitute the foundation for a conviction unless the Guide was properly proved before the justice of the peace. In other words, the respondent contends that the Guide could not be received in evidence unless authenticated by its author, or by some other means.

[8] On the other hand, the Crown contended before this court that s. 5(4) of the Regulations Act required the justice of the peace to take judicial notice of the Guide. Counsel pointed out that under s. 5(4)(a), publication of a regulation in the absence of evidence to the contrary, of which there is none, is "proof of its text", and that under s. 5(4)(b), publication of a regulation "shall be deemed to be notice of its contents". The Crown also relied on the doctrine of incorporation by reference to support its submission that there was no need to publish the Guide at the time the regulation was published as under the doctrine, the Guide was part of the text of the regulation. As I will explain, I agree with the Crown's position.

Reasons for Judgment of the Justice of the Peace

[9] In her reasons for judgment, the justice of the peace described the issue that she had to decide as follows:

Defence has brought forth a motion for non-suit for dismissal of the charge before the Court indicating to convict the prosecution must show that the defendant failed to meet a certain standard. Defence indicates [page717] that the guideline in the document called drive clean drive is not a regulation, it has not been published in the gazette, and it is of no force and effect and the Court cannot take judicial notice of it. And the author of the document, clean drive guide, is not present in Court to authenticate it. Therefore it is of no force and effect and the standard could not be met. The document cannot be put before the Court to determine the standard that has to be met.

[10] She decided the issue in this way:

The Court having considered the arguments and the case law presented as indicated, the document clean drive guide is not a regulation, has not been published in the gazette, and like every other guide, letter, or document that is being put before the Court the author must be present to authenticate it. And that has not been done, and the Court cannot take judicial notice of it. Therefore the document, clean drive guide, cannot properly be put before this Court. The standard cannot be met and it is of no force and effect. The motion for non-suit brought forth by the defence is granted and the charge is dismissed.

Reasons for Judgment of the Appeal Court Judge

[11] Before the appeal court, the Crown argued that the justice of the peace had erred in refusing to receive in evidence the Guide and requiring that it be proved. The Crown further submitted that the Guide should have been admitted on the grounds rejected by the appeal judge. The Crown did not argue, as it did before this court, that the justice of the peace was required to take judicial notice of the Guide.

[12] In dismissing the appeal, the appeal judge ruled that the justice of the peace had not erred in her reasons and further held that the Guide was not admissible on the following grounds:

(a) The Guide is not a public document within the meaning of s. 32(1) of the Evidence Act, R.S.O. 1990, c. E.23;

(b) The hearsay rule should not be extended to allow the Guide to be admitted under the test in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92; and

(c) There was no statutory authority to adopt the Guide by reference in the regulation as required by Ainsley Financial Corp. v. Ontario Securities Commission (1994), 1994 2621 (ON CA), 21 O.R. (3d) 104, 121 D.L.R. (4th) 79 (C.A.).

Analysis

[13] Although leave to appeal was granted on several grounds, as noted in para. 3, in my view the appeal turns on the issue of judicial notice.

[14] As Ontario Regulation 361/98 had been published in The Ontario Gazette as required by s. 5(1) of the Regulations Act, [page718] pursuant to s. 5(4) of the Act the justice of the peace was required to take judicial notice of the regulation. Since s. 12(4) of the regulation adopted the Guide, or incorporated it by reference, as permitted by s. 177(4) of the EPA, s. 12(4) includes the contents of the Guide just as if the text of the Guide had been written into the regulation. Not only the legislative device of incorporation by reference, but also the language of ss. 5(4)(a) and (b) of the Regulations Act, produce this result. There was, therefore, no requirement that the text of the Guide be published in The Ontario Gazette to make it subject to judicial notice. Nor was the Crown required to authenticate, or prove, the Guide through the testimony of the person, or persons, who prepared the Guide.

[15] The doctrine of judicial notice is the vehicle by which statutes and subordinate legislation are proved. At common law, judicial notice has always been taken of a public Act of Parliament or a provincial legislature. No evidence has ever been required concerning its passage through Parliament or a legislature, nor of its contents. The common law rule has been codified and is found in s. 7(1) of the Interpretation Act. A similar provision in respect to regulations published in The Ontario Gazette is in s. 5(4)(b) of the Regulations Act. There is no need to prove that a regulation has been published to rely on s. 5(4). Publication is presumed, subject to proof to the contrary. Indeed, it can be said that statutes and regulations are the everyday companions of judges and counsel and so it should come as no surprise that a judge is not merely permitted to take judicial notice of these sources of domestic law, but a judge is required to do so. In addition, various statutory provisions provide that judicial notice shall be taken of the seals and signatures of various persons in official documents, and of certified copies of certain documents: Evidence Act, R.S.O. 1990, c. E.23, ss. 27, 29, 32, 36.

[16] The doctrine of judicial notice is one of common sense. As pointed out by Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at p. 1055, its rationale is to expedite the process of the courts by enabling evidence to be entered by the court taking judicial notice of it. Generally speaking, as the authors state at p. 55, the doctrine applies to: "Facts which are (a) so notorious as not to be the subject of dispute among reasonable persons, or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, [which] may be noticed by the court without proof of them by any party." At common law, judges are required to take judicial notice of domestic law, which includes legislation enacted by Parliament and provincial [page719] legislatures. See S. Schiff, Evidence in the Litigation Process, 4th ed. (Scarborough, Ont.: Carswell, 1993), Vol. 2, at pp. 1051-52. The common law rule that the court is required to take judicial notice of statute law has been codified throughout Canada. As Sopinka, Lederman and Bryant state at pp. 1060-61:

There are innumerable instances in which the court is required by statute to take judicial notice. Thus, courts throughout Canada are bound to take judicial notice of Acts, public or private, of the federal Parliament and of the legislature of the province by which they are passed. The statutory provisions generally extend to ordinances, orders- in-council, proclamations and regulations.

(Footnotes omitted)

The requirement that the court must take judicial notice of statutes and regulations avoids the cumbersome and slow process of common law proof by witnesses to authenticate legislation.

[17] As the justice of the peace was required to take judicial notice of the regulation, it is necessary to determine whether the Guide was part of the regulation and, as such, should have been judicially noticed. As I have indicated, although the respondent agrees that the Guide was properly adopted, and thereby incorporated by reference, in s. 12(2) of the regulation, it maintains that because its text was not published in The Ontario Gazette at the time of the regulation's publication, it had to be independently proved. I do not agree.

[18] A helpful discussion of the legislative device of incorporation by reference is to be found in F. Bennion, Statutory Interpretation, 3rd ed. (London: Butterworths, 1997) at pp. 585-91. It enables the legislative draftsman to include provisions of earlier statutes or other documents into statutes or regulations without actually reproducing the language of the statute or document. As Bennion points out, incorporation by reference is a common device of legislators in accordance with the maxim verba relata hoc maxime operantur per referentiam rit it eis inesse videntur (words to which reference is made in an instrument have the same operation as if they were inserted in the instrument referring to them). The effect of incorporation by reference is that the material incorporated is considered to be part of the text of the legislation.

[19] In a case not unlike this appeal, the British Columbia Court of Appeal held that incorporation by reference was complete without publication of the text of the incorporated documents in the Canada Gazette: R. v. Sims (2000), 2000 BCCA 437, 148 C.C.C. (3d) 308. The court held that it was unnecessary to publish a regulatory standard incorporated by reference together with the regulation before a prosecution based on contravention of the standard could be pursued. It further held at p. 318 C.C.C. that incorporation by reference does not require that the text of the incorporated [page720] document be reproduced in the incorporating statute or regulation. See, also, Re Denison Mines Ltd. and Ontario Securities Commission (1981), 1981 1732 (ON SC), 32 O.R. (2d) 469, 122 D.L.R. (3d) 98 (Div. Ct.).

[20] I would adopt and apply the following statement of the law of Rowles J.A. in Sims at p. 315 C.C.C.:

When material is incorporated by reference into a statute or regulation it becomes an integral part of the incorporating instrument as if reproduced therein. In that regard, see Mainwaring v. Mainwaring, 1942 248 (BC CA), [1942] 2 D.L.R. 377 (B.C.C.A.), in which McDonald, C.J.B.C., referred to the effect of referential legislation in relation to the incorporating statute, at p. 380:

. . . Legislation by reference . . . has been consistently construed not to be ambulatory in its effect, but to incorporate the extrinsic law as at the date of the Act that is being construed, and to be unaffected by subsequent change of the law incorporated: [citations omitted.] The effect of such legislation is as though the extrinsic law referred to was written right into the Act.

(Emphasis in original)

[21] It follows, therefore, that because the text of the Guide was effectively written into s. 12(2) of the regulation by the doctrine of incorporation by reference, and because the regulation had been published in The Ontario Gazette, the Crown was not required to prove the Guide. The justice of the peace was required to take judicial notice of it. [See Note 1 at end of document] As s. 5(4)(a) of the Regulations Act provides, the publication of the regulation is proof of its text, which includes the text of the Guide. As the respondent, by the provisions of s. 5(4)(b) of the regulation is deemed to have notice of its contents, it is deemed to have notice of the contents of the Guide. Therefore, had the justice of the peace taken judicial notice of the Guide, as the evidence established that the respondent's motor vehicle exceeded the emission standards in the Guide, the justice of the peace would have been bound to register a conviction.

[22] In her factum, counsel for the Crown listed 26 statutes in which incorporation by reference has been used, as in the EPA, to adopt standards or codes in subordinate legislation as the means of regulating numerous activities. This regulatory scheme would be seriously compromised if in the prosecution of an offender, the Crown were to be required to resort to the common law method of proof of the incorporated document. [page721]

Result

[23] For the foregoing reasons, I would allow the appeal and set aside the acquittal of the respondent. As the evidence before the justice of the peace supports a conviction, there is no need to order a new trial. I would, therefore, enter a conviction and remit the case to the justice of the peace for the purpose of sentencing.

Appeal allowed.

Notes

Note 1: The issue in this appeal is not the "ascertainability" of the content of the Guide. If there were a question of the accuracy of the content of the Guide, or of access to the Guide, that question would have to be addressed by the trial judge.