COURT OF APPEAL FOR ONTARIO

2012 ONCA 536

DATE: 20120810

DOCKET: C53775

Feldman and Armstrong JJ.A. and Himel J. (ad hoc)

BETWEEN

Her Majesty the Queen in Right of Ontario (as represented by the Ministry of Transportation)

Appellant

and

Don’s Triple F Transport Inc.

Respondent

Douglas W. Lee, for the appellant

No one appearing for the respondent

Jordan Glick, appearing as amicus curiae

Heard: December 9, 2011

On appeal from the order of Justice John L. Getliffe of the Ontario Court of Justice, dated March 17, 2011, dismissing the appeal from the acquittal entered by Her Worship Justice of the Peace Donna Phillips, dated June 28, 2010.

Armstrong J.A.:

INTRODUCTION

[1] After a trial before a Justice of the Peace, Don’s Triple F Transport Inc. (the respondent), was acquitted on a charge of permitting the operation of a commercial motor vehicle not equipped with a working speed-limiting system, contrary to s. 68.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

[2] The Crown, as represented by the Ministry of Transportation, appealed the acquittal to the Provincial Court of Justice. The appeal was dismissed. The Crown was granted leave to appeal to this court by order of Gillese J.A. dated May 16, 2011.

[3] The respondent did not appear in this court. Mr. Jordan Glick appeared as amicus curiae and made submissions in support of the dismissal of the appeal.

[4] For the reasons that follow, I would dismiss the appeal.

THE FACTS

[5] On October 11, 2009, a tractor trailer (the “truck”) owned by the respondent was travelling westbound on Highway 401 when it entered a Ministry of Transportation inspection station in Thames Centre Township. The truck was inspected by a Ministry of Transportation enforcement officer. The inspection included checking the speed-limiting system on the truck. In order to do this check, the officer used a device known as an EZ-Tap Cube, which indicated that the speed-limiting system of the respondent’s truck was set to 75 miles per hour (approximately 121 kilometres per hour). According to s. 14(1) of R.R.O. 1990, Reg. 587, under the HTA, the speed-limiting system for this type of truck is to be set at a maximum speed of 105 kilometres per hour (approximately 65 miles per hour).

[6] The enforcement officer served the respondent with a certificate of offence, which charged that the respondent did commit the offence of: “Permit operation of commercial motor vehicle not equipped with working speed-limiting system” (see the appendix to these reasons for a copy of the certificate of offence). The certificate also indicated that this offence is contrary to s. 68.1(1) of the HTA and included the correct set fine.

the trial

[7] Counsel for the Ministry of Transportation acted as the prosecutor. Counsel called the enforcement officer, who testified for the prosecution about his inspection of the respondent’s truck. The prosecutor asked the enforcement officer about the maximum speed for a speed-limiting device on the type of truck in question. The officer responded: “Ontario Regulation 587, Section 14, restricts speed limiter type vehicles to a maximum of 65 miles per hour, 105 kilometres per hour.” After explaining the process for determining if the speed-limiter is in compliance, the officer testified:

In this case the actual speed that was set on the engine of the truck was 75 miles per hour, or 121 kilometres per hour. I explained that to the driver and at that time requested all of his documentation.

[8] Counsel for the respondent cross-examined the officer about his knowledge of the technical workings of the EZ-Tap Cube that was used to measure the maximum speed at which the speed-limiting device was set.

[9] The Justice of the Peace acquitted the respondent. Her reasons for judgment state:

The charge is permitting the operation of a commercial vehicle not equipped with a working speed limiting system.

The officer indicated in his evidence that he did put this cube onto this system [the EZ-Tap system] and got a reading from the system. So I don’t believe that the evidence supports the charge that is before the court. The charge is not having a working speed limiting system. There is a system on the commercial vehicle that wasn’t set at the right speed. The system is there, and the charge is not equipped with a working speed limiting system.

I am also going to address the issues that the defence has raised, that the device that the officer used, there is no evidence that it was working properly. He has indicated that it works by a signal, but he has not indicated in the evidence that the device he was operating was working properly. He has indicated he has training on how to work it, but he doesn’t know what this TCP connection is, and TCP connection is information that is forwarded to the device. But he doesn’t know what that connector is.

I do believe that the evidence does leave some doubt and that doubt has to go to the defence. The case will be dismissed.

THE APPEAL TO THE ONTARIO COURT OF JUSTICE

[10] The Crown appealed the dismissal of the charge to a judge of the Ontario Court of Justice, who dismissed the appeal for the following reasons:

As far as I am concerned the appeal is totally without merit, having read the transcript and having a look at the charge, and you can try your luck with a higher court, but as far as I am concerned, this is an appropriate dismissal by the Justice of the Peace, because the charge was not correctly laid. If we had to ask everybody who was charged with something that they read all the legislation and infer that they’re supposed to know things, that isn’t the way that these matters work as far as I am concerned, so the appeal is dismissed.

THE APPEAL TO THIS COURT

[11] The appellant raises the following grounds of appeal from the decision of the judge of the Ontario Court of Justice (“appeal judge”):

(i) the appeal judge erred in failing to recognize that the certificate of offence correctly charged the respondent in accordance with the prescribed short form wording for an offence under 68.1(1) of the HTA, as established by R.R.O. 1990, Reg. 950, Sched. 43 under the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”);

(ii) the appeal judge failed to appreciate that ignorance of the law is no defence;

(iii) the appeal judge erred in refusing to hear the oral submissions of the appellant;

(iv) the appeal judge’s reasons are insufficient to allow for meaningful appellate review; and

(v) the decisions of the courts below are unreasonable due to errors of law.

(i) Was the Respondent Correctly Charged?

[12] To understand the appellant’s submission that the respondent was correctly charged, it is necessary to set out the relevant statutory and regulatory provisions.

(a) Legislative Provisions

[13] Subsection 68.1(1) of the HTA provides:

68.1(1) No person shall drive, or permit the operation of, a commercial motor vehicle on a highway unless the vehicle is equipped with a speed-limiting system that is activated and functioning in accordance with the regulations.

[14] Subsection 68.1(11) of the HTA empowers the Lieutenant Governor in Council to make regulations prescribing the types of commercial motor vehicles that are required to have a speed-limiting system and the speed at which such systems must be set:

68.1(11) The Lieutenant Governor in Council may make regulations,

(a) defining “commercial motor vehicle” for the purposes of this section;

(b) prescribing standards for speed-limiting systems;

(c) governing the activation and functioning of speed-limiting systems, including prescribing and governing the speed at which speed-limiting systems must be set and prescribing different speed settings for different circumstances;

[15] Ontario Reg. 587 under the HTA relates to speed-limiting systems. Subsection 14(1) of this regulation provides:

(1) The speed-limiting system of a commercial motor vehicle shall be properly set at a maximum speed of 105 kilometres per hour.

Subsections 14(2) and (3) deal with the proper setting of a speed-limiting device and the means by which the maximum speed is set. Subsection 15(1) provides that a speed-limiting system shall be in good working order.

[16] Under the POA, proceedings in respect of offences under provincial legislation may be commenced by filing a certificate of offence under Part I of the Act or by laying an information under Part III of the Act. The POA empowers the Lieutenant Governor in Council to make regulations prescribing the form of certificates of offence and authorizing the use of any expression to designate an offence.[^1] The relevant provisions of the POA state:

(1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.

(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing in the form prescribed under section 13,

(a) a certificate of offence certifying that an offence has been committed; and

(b) either an offence notice indicating the set fine for the offence or a summons.

(1) The Lieutenant Governor in Council may make regulations,

(a) prescribing the form of certificates of offence, offence notices and summonses and such other forms as are considered necessary under this Part;

(b) authorizing the use in a form prescribed under clause (a) of any word or expression to designate an offence;

(2) The use on a form prescribed under clause (1)(a) of any word or expression authorized by the regulations to designate an offence is sufficient for all purposes to describe the offence designated by such word or expression.

(3) Where the regulations do not authorize the use of a word or expression to describe an offence in a form prescribed under clause (1)(a), the offence may be described in accordance with section 25.

[17] Schedule 43 of R.R.O. 1990, Reg. 950 under the POA provides short form wording to permit enforcement officers to lay charges for offences under the HTA, including offences under ss. 68.1(1) of the HTA. There are two prescribed short form wordings for offences under s. 68.1(1):

• Drive commercial motor vehicle not equipped with working speed-limiting system

• Permit operation of commercial motor vehicle not equipped with working speed-limiting system

It is the second form of wording that was used in the certificate of offence in this case.

[18] Subsection 13(3) of the POA provides that where the regulations do not authorize the use of a word or expression to describe an offence in a form under s. 13(1)(a), then the offence may be described in accordance with s. 25. Section 25 governs the sufficiency of informations laid under Part III of the POA. This section states in part:

(1) Each offence charged in an information shall be set out in a separate count.

(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.

(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.

(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

(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.

(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,

(f) it does not specify the means by which the alleged offence was committed;

(b) Appellant’s Position

[19] Counsel for the appellant submits that s. 68.1(1) of the HTA requires a speed-limiting system to function in accordance with the regulations. Although the certificate of offence makes no reference to the regulations, he argues that the short form wording should be read in harmony with s. 68.1(1) of the HTA and s. 14(1) of Reg. 587. Thus, he would essentially have the court read into the certificate of offence the words “in accordance with the regulations” after the words “working speed-limiting system”.

[20] Counsel for the appellant relies on s. 13(2) of the POA as to the sufficiency of the abbreviated wording. He argues that s. 13(2) makes it clear that if the statutory short form is used, it is sufficient for all purposes to describe the offence.

[21] In support of his argument, he cites Sheilagh Stewart in Stewart on Provincial Offences Procedure in Ontario, 2d ed. (Salt Spring Island: Earlscourt, 2005), at p. 5:

A short form wording is used to describe an offence when proceedings are commenced under Part I of the Act. It is designed to sufficiently describe the offence as briefly as possible in the limited space available on the certificate of offence and offence notice or summons ....

Section 13(1) of the Act provides the authority for the use of short form wordings in a prescribed form for any offence. This is the legal authority for the issuing officer to use the short form wording for the offence rather than describe in full on the certificate of offence and offence notice or summons. Section 13(2) provides that the use on a prescribed form of any short form wording authorized by regulation is sufficient for all purposes to describe the offence designated by the short form wording. This provision effectively shelters the prescribed short form wording from successful challenge.

(c) Analysis

[22] I do not agree with the appellant’s position that, on the facts of this case, the short form wording prescribed by the regulation enacted under s. 13(2) of the POA conveyed sufficient information to meet the notification objectives that a certificate of offence must serve. In W.D. Drinkwalter and J.D. Ewart, Ontario Provincial Offences Procedure (Toronto: Carswell, 1980), the authors explain, at pp. 68 and 100, that in order for a certificate of offence or an information to be unobjectionable, the charging document must accomplish three objectives, which may be summarized as follows:

(i) identification of the offence; that is, the accused must be informed of the legal character of the allegation against him or her;

(ii) provision of reasonable information with respect to the act or omission to be proven; and

(iii) identification of the transaction.

[23] These three objectives are a reflection of the golden rule articulated by the Supreme Court of Canada in R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, at p. 13, in the context of laying an information charging an offence under the Criminal Code:

[T]he 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.

[24] As explained by Drinkwalter and Ewart, at p. 68: “[t]he provisions of s. 13(2) are useful only in relation to the first of these [objectives]”. In other words, using the short form language in the certificate of offence serves to identify the offence, but the certificate of offence must also meet the latter two objectives of providing reasonable information with respect to the act or omission to be proven and identifying the transaction.

[25] In the context of a certificate of offence, the third objective of identifying the transaction is generally met by filling in the blanks provided for on the certificate indicating the time, date and place of the offence. In this case, that information was provided in the certificate of offence, which included the time, date and place of the offence along with information identifying the truck in question, including the licence plate and ownership information.

[26] However, accepting the Drinkwalter and Ewart analysis of the effect of s. 13(2) of the POA, I do not agree with counsel for the appellant’s suggestion that, by using the short form language in describing the offence, the content of the certificate will necessarily meet the second objective of providing reasonable information with respect to the act or omission to be proven.

[27] A certificate of offence that uses the short form language provided in Reg. 950 may adequately describe both the act or omission to be proven and the offence. In other words, the short form words identifying the offence may be tantamount to identifying the act that the Crown seeks to prove: see Drinkwalter and Ewart, p. 68, footnote 67. In this case, however, the short form words did not indicate the act or omission to be proven.

[28] The short form language in this case indicated that the act or omission to be proven was that the respondent permitted the operation of a commercial motor vehicle that was not equipped with a working speed-limiting system. The evidence tendered by the prosecutor at trial indicated that the truck was equipped with a working speed-limiting system. The evidence thus did not support the act or omission alleged in the certificate of offence, but instead supported an allegation that the speed on the device was set higher than the maximum speed prescribed by s. 14(1) of the Reg. 587 under the HTA. In other words, the prosecution sought to prove a different act or omission than was described in the certificate of offence.

[29] What was missing from the certificate was any reference to the impugned conduct of using a speed-limiting device that was not functioning in accordance with the regulations. A reference to the regulations was needed in order to give some reasonable information to the respondent indicating that the act or omission in issue related to the compliance of the speed-limiting device with the regulations. It may have been sufficient to add the closing phrase, “in accordance with the regulations”. If the words, “set at a maximum speed of 105 kilometres per hour”, were added, the certificate would clearly have met the objective of providing reasonable information with respect to the act or omission to be proven. Indeed such words could have been included in the original certificate as there was sufficient space on the form to enable the officer to include them. See the Appendix to these reasons.

[30] While I agree with the appeal judge that the certificate of offence did not contain sufficient information insofar as it failed to reasonably convey that the impugned act or omission related to the failure to comply with the regulations, I would note that the POA contains procedures to overcome defects in the charging document. Indeed, there is a simple and straightforward amendment procedure under the POA, which could have dealt with this problem at the trial. Given the evidence of the enforcement officer, it would have been open to the prosecutor to seek an amendment to the certificate of offence pursuant to s. 34 of the POA, the pertinent parts of which state:

(1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

(4) The court shall, in considering whether or not an amendment should be made, consider,

(a) the evidence taken on the trial, if any;

(b) the circumstances of the case;

(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

[31] However, since the prosecutor did not request an amendment to the certificate, the justice of the peace had no alternative but to dismiss the charge.

(ii) Did the Appeal Judge Fail to Appreciate that Ignorance of Law is No Defence?

[32] In my view, the concept of “ignorance of the law is no defence” has no application to this case. This case concerns a certificate of offence that failed to provide reasonable information with respect to the act or omission to be proven against an accused. It is as simple as that.

(iii) Did the Appeal Judge Err in Refusing to Hear the Appellant’s Oral Submissions?

[33] In my view, the appeal judge did err in not hearing full submissions from counsel for the appellant. However, this court is in a position to correct that error. Counsel for the appellant has had full opportunity to make submissions both in writing and in oral argument. The appellant does not request that this matter be referred back to the Ontario Court of Justice for a re-hearing of the first level of appeal.

(iv) Are the Appeal Judge’s Reasons Insufficient to Allow for Meaningful Appellate Review?

[34] The reasons of the appeal judge do not meet the requirements of R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. That said, the issues on appeal have been fully argued by the appellant and responded to by the amicus curiae. On the basis of the entire record and the written and oral submissions, we are able to properly review the decision of the court of first instance.

(v) Were the Decisions of the Courts Below Unreasonable Due to Errors of Law?

[35] It is difficult to ascertain exactly what the appellant is asserting under this ground of appeal. On the one hand, he appears to be arguing unreasonable verdict and on the other hand, that the courts below have misconstrued the statutory regime and the interplay between the HTA and the POA.

[36] On the unreasonable verdict ground, there simply was no evidence to support the offence that was charged and, in my view, there is no basis to hold that the decision was unreasonable.

[37] It is not necessary for me to deal with the issue of the proper operation of the instrument used by the officer at the inspection station to test the speed-limiting device.

[38] In respect of the so-called errors of law related to the statutory regime, the appellant’s argument is that both the justice of the peace and the appeal judge should have appreciated that the charge as laid was correct in law and the respondent should have been convicted. I have already discussed the statutory regime and the interplay between the HTA and the POA. I have nothing to add to that discussion and I see no basis for giving effect to this ground of appeal.

disposition

[39] I would dismiss the appeal.

“Robert P. Armstrong J.A.”

Feldman J.A.:

[40] I have had the advantage of reading the draft reasons of Armstrong J.A. but I respectfully disagree with the conclusion he has reached. In my view, the content of the Certificate of Offence complies with the statutory requirements and is adequate to provide the necessary information to the accused about the charge.

[41] My colleague has set out the applicable statutory and regulatory provisions as well as the actual Certificate of Offence, which is an appendix to his reasons. For ease of reference, I will reproduce the key provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8, the regulation made pursuant to it, R.R.O. 1990, Regulation 587, and the Provincial Offences Act, R.S.O. 1990, c. P.33.

[42] The key HTA provisions are s. 68.1(1), the offence provision, s. 68.1(11)(c), which confers the power to regulate the speed at which the required speed-limiting system must be set, and s. 14(1) of Regulation 587, which sets the maximum speed for a commercial motor vehicle at 105 km/h:

(11) The Lieutenant Governor in Council may make regulations,

14.(1) The speed-limiting system of a commercial motor vehicle shall be properly set at a maximum speed of 105 kilometres per hour.

[43] The essential provisions of the POA for the purposes of this appeal are ss. 13.(1)(a), (1)(b) and (2), which provide:

13.(1) The Lieutenant Governor in Council may make regulations,

(a) prescribing the form of certificates of offence, offence notices and summonses and such other forms as are considered necessary under this Part;

(b) authorizing the use in a form prescribed under clause (a) of any word or expression to designate an offence;

[44] In accordance with R.R.O. 1990, Regulation 950, made pursuant to s. 13(1) of the POA, the Certificate of Offence used the prescribed short form for an offence under s. 68.1(1) of the HTA:

Permit operation of commercial motor vehicle not equipped with working speed-limiting system

[45] It also identified the date of the offence, the address of the location where it occurred, the name and address of the accused, the licence plate and National Safety Code numbers associated with the vehicle, as well as the fact that it was a commercial vehicle. Importantly, it also refers specifically to the offence section of the HTA, s. 68.1(1). That section requires that the commercial vehicle be equipped with “a speed-limiting system that is activated and functioning in accordance with the regulations” (emphasis added).

[46] In my view, by using the prescribed short form, the Certificate of Offence complies with the POA, and, in accordance with the words of s. 13(2), it is therefore “sufficient for all purposes to describe the offence designated”.

[47] I am further satisfied that the charging document meets the three objectives identified by W. D. Drinkwalter and J. D. Ewart in Ontario Provincial Offences Procedure (Toronto: Carswell, 1980): identification of the offence; identification of the transaction; and reasonable information with respect to the act or omission.

[48] My colleague suggests that had the words “in accordance with the regulations” been added to the short form, that may have been sufficient to provide reasonable information. In my view, that information is sufficiently provided by the specific reference to s. 68.1(1) of the HTA, which contains those exact words.

[49] To summarize, I am satisfied that the description of the offence in the charging document is sufficient because it complies with the short form that the statute states is sufficient for all purposes to describe the offence. In my view, compliance with these provisions makes any further analysis unnecessary.

[50] Based on the record before this court, there was no challenge to the vires or constitutionality of s. 13(2) of the POA. Instead, the Justice of the Peace failed to give effect to this provision. Allowing the acquittal to stand under these circumstances could cause unnecessary havoc in the enforcement of these important provisions, which are there to ensure that commercial vehicles drive at a safe speed on our highways.

[51] The Justice of the Peace gave the following additional reasons for dismissing the charge:

I am also going to address the issues that the defence has raised, that the device that the officer used, there is no evidence that it was working properly. He has indicated that it works by a signal, but he has not indicated in the evidence that the device he was operating was working properly. He has indicated he has training on how to work it, but he doesn’t know what this TCP connection is, and the TCP connection is information that is forwarded to the device. But he doesn’t know what that connector is.

I do believe that the evidence does leave some doubt and that doubt has to go to the defence. The case will be dismissed.

[52] Because of the error of law by the Justice of the Peace regarding the sufficiency and effect of the Certificate of Offence, she found that the Certificate did not charge the offence that the prosecution was proceeding on – permit operation of a commercial motor vehicle with a speed-limiting device that was not set in accordance with the regulations. In light of this error of law, she could not have had a reasonable doubt respecting that offence. Indeed, at the outset of her reasons, she found: “There is a system on the commercial vehicle that wasn’t set at the right speed.” This finding is inconsistent with a finding of reasonable doubt on the offence that the Crown was attempting to prove.

[53] I would allow the appeal, set aside the acquittal, and order a new trial.

“K. Feldman J.A.”

Himel J. (ad hoc):

[54] I have had the advantage of reading the draft reasons of Armstrong J.A. and Feldman J.A., and I respectfully disagree with certain conclusions they have reached. I agree with Feldman J.A. that the content of the Certificate of Offence complies with the statutory requirements and is adequate to provide the necessary information to the accused about the charge. I adopt her reasons that the description of the offence in the charging document is sufficient because it complies with the short form that the statute states is sufficient for all purposes to describe the offence. As a result, I would allow the appeal on that ground.

[55] However, I respectfully disagree with the conclusion she has reached on the second basis for the acquittal of the Justice of the Peace. This was not addressed by the appeal judge but was raised by the Crown as a ground of appeal. The Justice of the Peace was not satisfied that the device the officer used was working properly and that he had the necessary knowledge about the testing device, the type of signal sent from the device and the meaning of the TCP connection, when that term is referenced in the operating manual for that device. The defence was able to raise a reasonable doubt through the cross-examination of the prosecution witness. In my view, the conclusion of the Justice of the Peace that she had a doubt on the evidence led before her should not be interfered with and the acquittal should stand.

[56] Although the appeal judge erred in law concerning the adequacy of the charging document, the acquittal by the Justice of the Peace, not addressed by the appeal judge, based upon reasonable doubt should stand.

[57] In the result, I would, therefore, dismiss the appeal.

Released:

“AUG 10 2012” “Himel J. (ad hoc)”

Appendix

(Certificate on PDF version)

[^1]: Section 13(1)(a) of the POA has since been repealed and replaced by s. 13(1.1), which came into force on March 31, 2012. Under s. 13(1.1), the Attorney General may make regulations prescribing the form of certificates of offence, offence notices, summonses and such other forms. Section 13(1)(b) now reads: “authorizing the use in a form prescribed under clause (1.1) (a) of any word or expression to designate an offence.”

Her Majesty the Queen in Right of Ontario (as represented by the Ministry of Transportation) v. Don’s Triple F Transport Inc., 2012 ONCA 536

Case Summary