Her Majesty the Queen v. Transport Robert (1973) Ltée

Her Majesty the Queen v. Transport Robert (1973) Ltée Her Majesty the Queen v. 1260448 Ontario Inc. o/a William Cameron Trucking [Indexed as: R. v. Transport Robert (1973) Ltée]

68 O.R. (3d) 51

[2003] O.J. No. 4306

Docket Nos. C38402 and C39530

Court of Appeal for Ontario

McMurtry C.J.O., Rosenberg, Moldaver JJ.A.

November 14, 2003

*Motion to adduce new evidence dismissed and application for leave to appeal dismissed with costs April 22, 2004 (Bastarache, LeBel and Deschamps JJ.).

Charter of Rights and Freedoms -- Fundamental justice -- Absolute liability offence of being owner or operator of commercial motor vehicle where wheel becomes detached from vehicle on highway not violating security of the person contrary to s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 84.1.

Charter of Rights and Freedoms -- Presumption of innocence -- Section 11(d) of Charter not preventing legislature from defining offence so as to eliminate possible common law defence -- Provisions of Highway Traffic Act which expressly preclude defence of due diligence in case of offence of being owner or operator of commercial motor vehicle where wheel becomes detached from vehicle on highway not violating s. 11(d) of Charter -- Canadian Charter of Rights and Freedoms, s. 11(d) -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 84.1. [page52]

In separate proceedings, the defendants were charged with committing an offence under s. 84.1(1) of the Highway Traffic Act, which provides that the owner and operator of a commercial motor vehicle are guilty of an offence where a wheel becomes detached from the vehicle while it is on a highway. Section 84.1(5) specifically precludes the defence of due diligence. A defendant is not liable to imprisonment or probation as a result of a conviction or for default in payment of the fine. The defendants argued that the creation of an absolute liability offence violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and that they ought to be able to defend the charge on the basis that they exercised due diligence. One defendant was convicted and that conviction was affirmed by the Provincial Offences Appeal Court. The other defendant was acquitted after the justice of the peace found that there was a violation of s. 11(d) of the Charter and that the defendant had exercised due diligence. On appeal by the Crown, the court held that there was a violation of s. 7 of the Charter, but allowed the appeal and ordered a new trial because the justice of the peace erred in excluding certain expert evidence that the Crown sought to call on the due diligence issue. The Crown appealed.

Held, the defendant's appeal should be dismissed; the Crown's appeal should be allowed.

A prosecution for the offence under s. 84.1 of the Highway Traffic Act does not engage the kind of exceptional state- induced psychological stress that would trigger the guarantee of security of the person. The offence does not create a true crime and, like most regulatory offences, it focuses on the harmful consequences of otherwise lawful conduct rather than on any moral turpitude. The diminished stigma attached to the offence is not sufficient to trigger the security interest in s. 7 even when coupled with the possibility of a significant fine. The right to security of the person does not protect an individual operating in the highly- regulated context of commercial trucking for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government regulation of that industry. Section 84.1 of the Highway Traffic Act does not violate s. 7 of the Charter.

While s. 11(d) of the Charter prohibits the reversal of the burden of proof of a fact that is an element of the offence, there is no violation of s. 11(d) where the legislature has defined an offence so as to eliminate an element or, as here, a possible common law defence.

APPEAL by the defendant from a decision affirming a conviction for a provincial offence; APPEAL by the Crown from a decision varying the decision of a justice of the peace and ordering a new trial.

Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, 77 C.R.R. (2d) 189, 2000 C.L.L.C. Â230-040, 3 C.C.E.L. (3d) 165 (sub nom. Blencoe v. Human Rights Commission (B.C.) et al.); R. v. Pontes, 1995 61 (SCC), [1995] 3 S.C.R. 44, 12 B.C.L.R. (3d) 201, 186 N.R. 81, 32 C.R.R. (2d) 1, 100 C.C.C. (3d) 353, 41 C.R. (4th) 201, 13 M.V.R. (3d) 145; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154, 4 O.R. (3d) 799n, 49 O.A.C. 161, 84 D.L.R. (4th) 161, 130 N.R. 1, 7 C.R.R. (2d) 36, 67 C.C.C. (3d) 193, 38 C.P.R. (3d) 451, 8 C.R. (4th) 145, consd Other cases referred to New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd. (2000), 2000 5647 (ON CA), 47 O.R. (3d) 171, 1 M.V.R. (4th) 10 (C.A.); R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, 73 O.R. (2d) 736n, 40 O.A.C. 1, 108 N.R. 171, 48 C.R.R. 112, 56 C.C.C. (3d) 22, 77 C.R. (3d) 110, 21 M.V.R. (2d) 165; [page53] R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, 63 O.R. (2d) 281, 26 O.A.C. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, 31 C.R.R. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1 (sub nom. Morgentaler, Smoling and Scott v. R.); Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, 82 B.C.L.R. (2d) 273, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, 17 C.R.R. (2d) 193, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) Highway Traffic Act, R.S.O. 1990, c. H.8, s. 84.1 Provincial Offences Act, R.S.O. 1990, c. P.33, s. 59(2) Authorities referred to Hogg, P.W., Constitutional Law of Canada, vol. 2 (Toronto: Carswell, 1997)

Shaun Nakatsuru and Rochelle S. Fox, for Her Majesty the Queen (appellant in Transport Robert (1973) Ltée; respondent in 1260448 Ontario Inc. o/a William Cameron Trucking). Robert B. Warren and Carole McAfee Wallace, for respondent Transport Robert (1973) Ltée. Peter Copeland and Seth Weinstein, for appellant 1260448 Ontario Inc. o/a William Cameron Trucking.

[1] BY THE COURT: -- The issue in these two appeals is whether it is open to the legislature to create an absolute liability offence where there is no possibility of imprisonment or probation if the defendant is convicted. Section 84.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 provides that the owner and operator of a commercial motor vehicle are guilty of an offence where a wheel becomes detached from the vehicle while it is on a highway. Subsection (5) provides that it is no defence to the charge that the defendant exercised due diligence to avoid or prevent the detaching of the wheel. The penalty for the offence is a fine of not less than $2,000 and not more than $50,000, [see Note 1 at the end of the document] but the defendant is not liable to imprisonment or probation as a result of the conviction or for default in payment of the fine resulting from the conviction (subsection (4)). [page54]

[2] The defendants submit that notwithstanding the only possible penalty for this offence is a monetary one, the creation of this absolute liability offence violates the guarantee to security of the person in s. 7 of the Canadian Charter of Rights and Freedoms and the presumption of innocence in s. 11(d) of the Charter. For the following reasons we have concluded that there is no violation of s. 7 or s. 11(d). We therefore allow the Crown appeal in the Transport Robert case and dismiss the appeal by William Cameron Trucking.

[3] In separate incidents, 1260448 Ontario Inc., operating as William Cameron Trucking, and Transport Robert (1973) Ltée, were charged with being the owner of commercial motor vehicles from which a wheel separated while on a public highway, contrary to s. 84.1(1) of the HTA. At their separate trials, the defendants argued that creation of an absolute liability offence violated s. 7 and 11(d) of the Charter and that it should be open to them to defend the charge on the basis that they exercised due diligence. The defendants adduced evidence to explain the loss of the wheel from the commercial vehicle and to show that they acted with due diligence.

[4] In the Transport Robert prosecution, Justice of the Peace McNish found that there was a violation of s. 11(d). He also accepted that the defendant had exercised due diligence and dismissed the charge. An appeal by the Crown to Knazan J. of the Provincial Offences Appeal Court was successful in part. Knazan J. found that there was a violation of s. 7 of the Charter but allowed the Crown appeal and ordered a new trial because Justice of the Peace McNish erred in excluding certain expert evidence that the Crown sought to call on the due diligence issue.

[5] In the William Cameron Trucking case, Justice of the Peace Leaman at trial and Baig J. on appeal found that there was no violation of either s. 7 or s. 11(d) of the Charter. William Cameron Trucking was accordingly convicted and fined $2,500.

THE FACTS

[6] In view of our conclusion on the constitutional issue, it is unnecessary to review the facts of either prosecution in any great deal. Most of the evidence adduced at the trials was led in an attempt to explain how the wheels became detached and why the defendants nevertheless acted with due diligence.

Transport Robert

[7] On May 29, 1999, a truck operated by Transport Robert was travelling westbound on Highway 401 at Leslie Street in the City [page55] of Toronto, when a wheel separated from the attached trailer. The wheel fasteners had backed off of the studs.

[8] The wheel that separated from the trailer was newly installed to replace an older wheel. The theory of the Crown was that the newly installed wheel probably came loose because, contrary to manufacturers' recommendations, the defendant had not had the wheel retorqued within 80 to 160 km after the installation. The defendants disputed this explanation and also led extensive evidence to justify their standard practice for retorquing.

William Cameron Trucking

[9] On December 5, 1998, a truck owned by William Cameron Trucking was found on the eastbound shoulder of Hwy 11/17. The right front wheel was missing from the tractor unit. The missing wheel was found in a nearby ditch.

[10] William Cameron Trucking suggested that the wheel separation occurred because of the breaking of a stud, which caused the clamp to fall off. At trial, William Cameron Trucking's expert, Dr. A.G. Gillies, testified that while he could not determine the exact cause of the stud failure, it could be attributed to "hydrogen embrittlement", a corrosion process, that could have been caused at the manufacturing stage, or, as a result of exposure to environmental elements.

[11] The theory of the Crown was that a wheel clamp, which was fastened by a nut, had worn [loose]. The Crown submitted that the principal causes of wheel stud breakage are factors that are within the control of the truck owner, including improper maintenance. The Crown evidence suggested that hydrogen embrittlement was an unlikely cause.

ANALYSIS

Section 11(d)

[12] The argument based on s. 11(d) of the Charter can be dealt with quickly. As Professor Hogg points out in Constitutional Law of Canada, (Toronto: Carswell, 1997) vol. 2, p. 48-17, while s. 11(d) prohibits the reversal of the burden of proof of a fact that is an element of the offence, that subsection says nothing about elimination of an element. If the offence as drafted includes certain elements or if s. 7 mandates proof of a certain element as a matter of fundamental justice, placing the burden of proof of such elements on the defence may be an unconstitutional violation of s. 11(d) subject to the Crown establishing that the reversal is a reasonable limit under s. 1. However, there is no violation of s. 11(d) because the legislature has [page56] defined an offence so as to eliminate an element, or as here, a possible common law defence.

[13] The real and only constitutional issue in this case then is whether, despite the wording of s. 84.1 of the HTA, s. 7 mandates that the defendants be able to defend the case on the basis of due diligence. We therefore turn to that issue.

Section 7

[14] Section 7 provides that:

7. 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.

[15] Although the rights guaranteed by s. 7 can only be enjoyed by human beings, a corporation has standing to challenge the constitutionality of a penal provision on the basis that the provision violates the s. 7 rights of a human being: R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154, 84 D.L.R. (4th) 161. Thus, it is open to these corporate defendants to challenge the constitutionality of s. 84.1 of the HTA.

[16] As the law now stands, a defendant alleging a violation of s. 7 must establish both a violation of the right to life, liberty or security of the person and that the deprivation of that right does not accord with the principles of fundamental justice. The defendants properly concede that since there is no possibility that an individual convicted of the offence can be either imprisoned or placed on probation, s. 84.1 of the HTA does not violate any liberty interest protected by s. 7. They do submit, however, that the provision infringes the security of the person of an individual because it allows for the conviction of a person who is without fault. Their submission of an infringement of the security of the person is primarily based on the effect of the stigma attached to a conviction together with the large possible monetary penalty, the highest in the HTA.

R. v. Pontes

[17] The Crown's principal submission is that the Supreme Court of Canada has already dealt with the issue of whether an absolute liability offence, with no risk of imprisonment or probation, violates s. 7 of the Charter in R. v. Pontes, 1995 61 (SCC), [1995] 3 S.C.R. 44, 100 C.C.C. (3d) 353. In Pontes, the defendant was charged under s. 94(1) of the British Columbia Motor Vehicle Act, R.S.B.C. 1979, c. 288, with driving a motor vehicle at a time when he was "automatically and without notice" prohibited from doing so under s. 92 of that Act. A violation of s. 94 can [page57] result in a fine and potential imprisonment. The Supreme Court of Canada held that the wording "automatically and without notice" created an absolute liability offence. However, the majority held that the offence did not violate s. 7 of the Charter because s. 4.1 and s. 72(1) of the British Columbia Offence Act, R.S.B.C. 1979, c. 305, s. 4.1 provide that, notwithstanding the provisions of any other Act, there can be no sanction of imprisonment attached to absolute liability offences. Thus, at para. 9 of Pontes, Cory J. held as follows:

Obviously, if the offence is one of absolute liability, but there is no risk of imprisonment, then the provision will not offend s. 7 of the Canadian Charter of Rights and Freedoms.

[18] The defendants submit that in Pontes, the Supreme Court dealt only with the liberty interest of s. 7 and not security of the person. It is not clear that Pontes can be limited in that way. Thus, at para. 47, Cory J. held that where the accused faces no risk of imprisonment"there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter" (emphasis added).

[19] On the other hand, at para. 26, Cory J. deals with the issue in less absolute terms: "Generally speaking, an offence of absolute liability is not likely to offend s. 7 of the Charter unless a prison sanction is provided" (emphasis added). The Crown explains this language on the basis that the court has simply left open the question of whether an absolute liability offence would infringe s. 7 where the only possibility of imprisonment was as a result of the defendant's failure to pay a fine. See Pontes, at para. 16. That issue did not arise in Pontes and does not arise in this case because of the terms of s. 84.1(4) of the HTA.

[20] For the purposes of this appeal, we are nevertheless prepared to proceed on the basis that Pontes has not fully resolved the question of whether absolute liability violates the guarantee to security of the person under s. 7. We will therefore deal with the submissions of the defendants that s. 84.1 of the HTA does violate the security of the person guarantee in s. 7.

Security of the person and absolute liability

[21] As indicated, the defendants submit that as a result of the combination of the high maximum fine and the stigma attached to s. 84.1 of the HTA offence, a conviction for that offence results in the deprivation of security of the person. They point out that s. 84.1 was enacted in response to a number of highly publicized incidents and recommendations from inquests following the deaths of motorists when wheels came loose from commercial [page58] vehicles. They argue that a person convicted of this offence is stigmatized as someone who has exposed innocent motorists or pedestrians to the risk of serious injury or death. They also point out that the offence should be considered, not from the point of view of a large trucking company, but that of an individual, possibly an owner/ operator with one commercial vehicle.

[22] In considering the constitutionality of s. 84.1, it is necessary to take into account certain contextual factors. The section applies only to owners and operators of commercial vehicles. These persons operate for profit in a highly regulated industry. In R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, 56 C.C.C. (3d) 22, at p. 1280 S.C.R., p. 39 C.C.C., Cory J. for the majority of the Supreme Court explained that driving is a privilege and not a right: "[I]t is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways. Proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public thoroughfares."

[23] Although s. 84.1 provides for a maximum fine of $50,000 and a minimum fine of $2,000, under s. 59(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, in exceptional circumstances, the court may impose a fine that is less than the minimum or suspend the sentence. The Crown points out that s. 84.1 has received a narrow interpretation from this court in Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd. (2000), 2000 5647 (ON CA), 47 O.R. (3d) 171, 1 M.V.R. (4th) 10 (C.A.), at para. 16, where it was held that the offence only applies if a wheel becomes detached and does not apply where the entire axle, hub, wheel and tire assembly comes off in one piece. The Crown also concedes that although due diligence is not available as a defence, certain other actus reus "defences" would be available as where the wheel became detached in a collision caused by a third party.

[24] While the courts have not fully defined the limits of security of the person in s. 7, there are certain propositions established by the cases. In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, 190 D.L.R. (4th) 513, at para. 57, Bastarache J. speaking for the majority held that"[N]ot all state interference with an individual's psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to 'serious state-imposed psychological stress'." Thus"[N]ot all forms of psychological prejudice caused by government will lead to automatic s. 7 violations." Further, there is no "generalized right to dignity, or more specifically, a right to free from stigma" (para. 57) and"[d]ignity and reputation are not self- standing rights. Neither is freedom from stigma" (para. 80). [page59]

[25] In Blencoe, the concern was with the lengthy delay in dealing with a human rights complaint, a proceeding that according to the respondent Blencoe, had ruined his reputation. Bastarache J. held, at para. 83 that it would only be in "exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state- caused delay in human rights proceedings could trigger the s. 7 security of the person interest . . . they would not easily include the type of stress, anxiety and stigma that result from administrative or civil proceedings".

[26] There are admittedly distinctions between the Blencoe context and the context of these cases. In particular, the defendants here are charged with quasi-criminal offences and required to appear in open court to face the charges. We also take the point that this offence was enacted in response to a serious public safety issue "in the wake of several serious incidents of 'flying truck wheels'". See Ryder Truck Rental, supra, at para. 1.

[27] However, we are not convinced that a prosecution for the s. 84.1 offence engages the kind of exceptional state-induced psychological stress, even for an individual, that would trigger the security of the person guarantee in s. 7. The offence does not create a true crime, and like most regulatory offences, it focuses on the harmful consequences of otherwise lawful conduct rather than any moral turpitude. Thus, in Wholesale Travel, supra, at p. 224 S.C.R., Cory J. rejected the accused's claim that conviction for false advertising carried the stigma of dishonesty. In that case, where due diligence was available, the court characterized the fault element as one of "negligence rather than one involving moral turpitude" and thus"any stigma that might flow from a conviction is very considerably diminished." The same can be said in this case. The s. 84.1 offence focuses on the unintended but harmful consequences of the commercial trucking industry. We reject the proposition that a defendant charged with this offence is stigmatized as a person operating in a wanton manner, heedless of the extreme dangers to life and limb posed by his or her operation. Conviction for the offence at most implies negligence and, like the misleading advertising offence considered in Wholesale Travel, any stigma is very considerably diminished.

[28] The diminished stigma attached to the s. 84.1 offence is not sufficient to trigger the security interest in s. 7, even when coupled with the possibility of a significant fine. This is simply not the kind of serious state-imposed psychological stress that is intended to be covered by security of the person. It is qualitatively different than the kinds of stresses that have been recognized in the cases. A review of those cases demonstrates a [page60] concern with state action that intrudes in an intimate and profound way as in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 (attempt to take a child away from its parents); Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342 (criminal prohibition on assisting suicide for a desperately ill patient) and R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 (regulating abortion).

[29] The right to security of the person does not protect the individual operating in the highly regulated context of commercial trucking for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government regulation of that industry. As Lamer C.J.C. said in G. (J.), at para. 59"[I]f the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected."

[30] Accordingly, s. 84.1 of the HTA does not violate s. 7. It is therefore unnecessary to consider whether any violation could be saved by s. 1.

DISPOSITION

[31] The appeal by the defendant William Cameron Trucking is dismissed. The appeal by the Crown in Transport Robert is allowed, the order for a new trial set aside and a conviction entered. Particularly in light of the evidence led by the defendant concerning its attempts at preventing the loss of wheels, we agree with the Crown that the proper disposition would be imposition of the minimum fine of $2,000. The defendant will have 30 days to pay the fine.

Defendant's appeal dismissed;

Crown appeal allowed.

Notes

Note 1: Although, as we explain below, there is provision in the Provincial Offences Act, R.S.O. 1990, c. P.33, s. 59(2) to impose a fine that is less than the minimum or suspend the sentence altogether.