COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2013 ONCA 503

DATE: 20130730

DOCKET: M42675

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Tyler Wilson

Respondent

Lisa Shields, for the applicant

Richard Litkowski, for the respondent

Grace Choi, for the intervener, the Attorney General of Ontario

Heard: July 30, 2013

On a motion for leave to appeal the judgment of Justice R.J. LeDressay of the Ontario Court of Justice, dated June 11, 2013, allowing the appeal from the conviction entered on June 15, 2012 and the sentence imposed that day by Justice of the Peace D. Lee.

ENDORSEMENT

[1] Tyler Wilson was found guilty of failing to properly wear his seatbelt contrary to s. 106(2) of the Highway Traffic Act. He was fined $125. The appeal court judge allowed the appeal on the basis that the offence was, properly considered in light of the Court of Appeal’s decision in R. v. Kanda, 2008 ONCA 22, [2008] O.J. No. 80, not an absolute liability offence, as the trial justice found, but a strict liability offence on which the defence of due diligence was possible.

[2] The applicant seeks leave to appeal under s. 139 of the Provincial Offences Act. The principles for granting leave to appeal are set out in Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must be question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential in the public interest, in the sense of “material, important,” or for the due administration of justice: R. v. Krukowski, 1991 CanLII 7305 (ON CA), [1991] O.J. No. 255 per Lacourciere J.A., at para 13. Further, the leave court may advert to the merits: Ontario (Labour) v. Enbridge Gas Distribution Inc., at para. 38.

[3] Section 106(6), now s. 106(4) of the Highway Traffic Act, was in issue in Kanda. That section stipulates that a person may no drive a motor vehicle in which there is a passenger under 16 years of age, unless that passenger is wearing a properly adjusted seatbelt. This court in Kanda concluded that s. 106(6), now s. 106(4), is a strict liability offence.

[4] The applicant points out that there is a critical difference between s. 106(4), which deals with the driver’s responsibility for a passenger who is a child, and s. 106(2), which deals with the driver’s responsibility to be belted. This leaves open, says the applicant, a finding that s. 106(2) is an absolute liability offence, despite Kanda. Courts in Ontario have been operating on the basis that s. 1062 is an absolute liability offence based on the authority of R. v. Stewart, [2007] O.J. No. 3000 (O.C.J.).

[5] In my view, it is a question of law alone whether s. 106(2) of the Highway Traffic Act imposes absolute liability or strict liability. Resolution of that question would have an impact on the jurisprudence in a way that is of interest to the public at large, given both the frequency with which the offence is charged and its public safety purpose.

[6] Mr. Litkowski appeared to assist the court without retainer, since his client does not wish to fund the pursuit of the matter, having been successful on appeal. I take the approach that my colleague Cronk J.A. in Toronto (City) v. Andrade, [2011] O.J. No. 5311, at para. 10-12. It is important that both sides of the issue be argued.

[7] For these reasons, the motion for leave to appeal on this matter is hereby granted. I further direct that Richard Litkowski, who appeared on this motion for the respondent, be appointed amicus counsel to be compensated at the legal aid rate (R. v. Russel, 2011 ONCA 303, at para. 67).

“P. Lauwers J.A.”