COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Wilson, 2014 ONCA 212
DATE: 20140321
DOCKET: C57456
Sharpe, Watt and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Tyler Wilson
Respondent
and
Attorney General of Ontario
Intervener
Lisa Shields, for the appellant
Grace Choi, for the intervener
Richard Litkowski, amicus curiae
Heard: January 30, 2014
On appeal from 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 by Justice of the Peace D. Lee.
Sharpe J.A.:
[1] The issue on this appeal is whether a driver’s failure to wear a seat belt contrary to s. the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), s. 106(2) is an offence of absolute liability or strict liability. The respondent, Mr. Wilson, was convicted by a Justice of the Peace on the basis that the offence was one of absolute liability. An appeal to the Ontario Court of Justice was allowed and a new trial ordered on the ground that the offence was one of strict liability affording the driver a due diligence defence. The Corporation of the City of Burlington appeals to this court with leave. As Mr. Wilson decided to take no further part in the proceedings, amicus curiae was appointed to advance the respondent’s position on appeal. Burlington, supported by the Attorney General of Ontario as intervener, asks that the appeal be allowed on the ground that the offence is one of absolute liability, but, in the circumstances, asks that a stay of proceedings be entered.
[2] For the following reasons, I conclude that s. 106(2) creates a strict liability offence and that the appeal should be dismissed.
Facts
[3] On September 24, 2011, a police officer saw Mr. Wilson stop his vehicle at a stop sign. The officer noticed that Mr. Wilson’s seatbelt was hanging by his shoulder and issued a Provincial Offences Notice for failing to wear a seatbelt contrary to the HTA, s. 106(2).
[4] Mr. Wilson testified that he had placed a coffee in a cup holder in the backseat of his car. While driving, he noticed the coffee was spilling on his laptop. When the officer observed him, he had just pulled up to a stop sign and removed his seatbelt so he could straighten the coffee cup.
[5] The Justice of the Peace interrupted Mr. Wilson’s testimony and told him that his evidence made him guilty of the offence as it was one of absolute liability. Mr. Wilson went on to say that there was no other traffic around and at the time, it was his intention to re-engage the seatbelt as soon as he fixed the coffee cup. The Justice of the Peace found Mr. Wilson guilty.
Appeal to the Ontario Court of Justice
[6] On appeal to the Ontario Court of Justice, Mr. Wilson argued that
a) the Justice of the Peace created a reasonable apprehension of bias by interrupting him to tell him he was guilty before all of the evidence was complete; and
b) the offence was one of strict rather than absolute liability.
[7] The appeal judge gave comprehensive reasons rejecting the reasonable apprehension of bias argument but concluded, on the basis of the test set out in R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299, as applied by this court in R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732, that s. 106(2) is an offence of strict liability. As the prosecution did not seek a new trial, the appeal judge allowed the appeal and entered a stay of proceedings.
Legislation
[8] Ontario’s seat belt legislation is found in the HTA, s. 106:
Seat belts
Seat belt assembly must not be removed or altered
106 (1) No person shall drive on a highway a motor vehicle in which a seat belt assembly required under the Motor Vehicle Safety Act (Canada) at the time that the vehicle was manufactured or imported into Canada has been removed, rendered partly or wholly inoperative, modified so as to reduce its effectiveness or is not operating properly through lack of maintenance.
Use of seat belt assembly by driver
(2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5).
Use of seat belt assembly by passenger
(3) Every person who is at least 16 years old and is a passenger in a motor vehicle on a highway shall,
(a) occupy a seating position for which a seat belt assembly has been provided; and
(b) wear the complete seat belt assembly as required by subsection (5).
Driver to ensure young passenger uses seat belt assembly
(4) No person shall drive on a highway a motor vehicle in which there is a passenger who is under 16 years old unless,
(a) that passenger,
(i) occupies a seating position for which a seat belt assembly has been provided, and
(ii) is wearing the complete seat belt assembly as required by subsection (5); or
(b) that passenger is required by the regulations to be secured by a child seating system or child restraint system, and is so secured.
Exception
(6) Subsections (2) and (3) do not apply to a person,
(a) who is driving a motor vehicle in reverse;
(b) who holds a certificate signed by a legally qualified medical practitioner certifying that the person is,
(i) for the period stated in the certificate, unable for medical reasons to wear a seat belt assembly, or
(ii) because of the person’s size, build or other physical characteristic, unable to wear a seat belt assembly; or
(c) who is actually engaged in work which requires him or her to alight from and re-enter the motor vehicle at frequent intervals and the motor vehicle does not travel at a speed exceeding 40 kilometres per hour.
Same
(7) Clause (4) (a) does not apply in respect of a passenger if the passenger holds a certificate signed by a legally qualified medical practitioner certifying that the passenger is,
(a) for the period stated in the certificate, unable for medical reasons to wear a seat belt assembly; or
(b) because of the person’s size, build or other physical characteristic, unable to wear a seat belt assembly.
Regulations
(8) The Lieutenant Governor in Council may make regulations,
(e) exempting from any of the provisions of this section or the regulations made under this section,
(i) any class of motor vehicle,
(ii) any class of driver or passenger, or
(iii) drivers carrying any prescribed class of passenger,
and prescribing conditions for any such exemption;
Offence
(8.3) Every person who contravenes or fails to comply with this section or a regulation made under this section is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.
Issue
[9] The sole issue raised on this appeal is whether s. 106(2) of the HTA creates an absolute or strict liability offence.
Analysis
R. v. Sault Ste. Marie and the presumption of strict liability
[10] In R. v. Sault Ste. Marie, Dickson J., writing for a unanimous court, identified what he described as a “half-way house” between the extremes of true criminal offences that require proof of a guilty state of mind (intention, knowledge or recklessness), and public welfare offences imposing absolute liability, where conviction will follow upon proof that the accused did the prohibited act with no consideration of the accused’s state of mind or degree of fault. The new category was that of strict liability: the prosecution makes out its case by proving the doing of the prohibited act, but it is left open to the accused to avoid conviction by proving on a balance of probabilities that he or she took reasonable care to avoid the prohibited act.
[11] Dickson J. offered a compelling rationale for the “half-way house” of strict liability. The link between absolute liability and increased compliance is unproven and tenuous. Strict liability maintains efficiency and effectiveness in the enforcement of minor regulatory legislation by relieving the prosecution of any obligation to prove fault but, by affording the accused the opportunity to demonstrate that he or she took reasonable care, also avoids the potential injustice inherent in the imposition of no-fault liability.
[12] Sault Ste. Marie, at p. 1326, holds that “the principle that punishment should in general not be inflicted on those without fault” applies to make public welfare offences prima facie offences of strict liability. An offence would be classified as imposing absolute liability only where “the Legislature had made it clear that guilt would follow proof merely of the prohibited act.” The primary considerations to be used to determine whether the offence is one of absolute liability are: the “overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used…”
Classification of HTA Offences
[13] As this court observed inKanda, the HTA creates offences falling within all three categories. Some HTA offences use language importing full mens rea (e.g. s. 104(2.2) parent or guardian “knowingly” permitting a person under 16 to ride a bicycle without a helmet), some impose liability on a reasonableness standard (e.g. s. 75(4) unreasonable noise), and some create offences of absolute liability by explicitly excluding the due diligence defence (e.g. s. 84.1(5) wheel detached from a commercial motor vehicle). However, for most HTA offences, the legislature does not clearly specify the level of fault and it falls to the courts to discern the appropriate level of fault based on the analysis laid down in Sault Ste. Marie.
[14] The only case cited to us dealing with the specific issue whether s. 106(2) is an offence of strict or absolute liability is R. v. Stewart, [2007] O.J. No. 3000 (Ont.C.J.), a brief oral judgment stating that the offence is one of absolute liability. However, as I read the decision, the argument advanced by the accused and rejected by the court was that the prosecution had to prove not only that the driver was not wearing a seat belt, but also that the vehicle was provided with a seat belt assembly and that it could be properly fashioned. That submission related to the elements of the offence, not whether absolute or strict liability was imposed. Although the trial judge said that s. 106(2) was an absolute liability offence, there was no reference to Sault Ste. Marie or to the presumption of strict liability.
[15] The closest appellate authority is Kanda where this court considered whether the offence created by what is now s. 106(4), driving a vehicle while a passenger under sixteen is not wearing a seat belt, was one of strict or absolute liability. The court applied the four factors identified in Sault Ste. Marie in the following manner.
[16] Writing for the court, MacPherson J.A looked first at the overall regulatory pattern. As, I have already explained, the HTA creates offences falling within all three categories. As the legislature had not used explicit language in s. 106, MacPherson J.A. concluded that overall regulatory pattern was neutral.
[17] MacPherson J.A. found that the subject matter of the legislation pointed to strict liability. While the provision at issue was designed to ensure the safety of vulnerable young passengers, it was held in Sault Ste. Marie, at p. 1311, that “[t]here is no evidence that a higher standard of care results from absolute liability”. A driver who committed the prohibited act will be convicted in most cases as “establishing the defence of due diligence or reasonable care will not be easy”: Kanda, at para. 31. It follows that classifying the offence as one of strict liability “strikes an appropriate balance between encouraging drivers to be vigilant about the safety of child passengers in their vehicles and not punishing those who exercise due diligence with respect to children’s seat belts”: Kanda, at para. 32.
[18] MacPherson J.A. concluded that the penalty, at the time a fine of not less than $60 and not more than $500 and two demerit points, was consistent with absolute liability. I note that the current penalty, introduced in 2009, is a fine of not less than $200 and not more than $1,000.
[19] The precision of language, or lack thereof, was found to point to strict liability. By themselves, the words “no person shall” or “every person who” do not import absolute liability: see R. v. Chapin, 1979 33 (SCC), [1979] 2 S.C.R. 121 at p. 131. However, some HTA offences using those words have been held to impose absolute liability: R. v. Kurtzman (1991), 1991 7059 (ON CA), 4 O.R. (3d) 417 (C.A.) (failing to stop at a red light) and London (City) v. Polewsky (2005), 2005 38742 (ON CA), 202 C.C.C. (3d) 257 (Ont. C.A.), leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 37 (speeding). MacPherson J.A., at para. 39, distinguished those cases on the basis that the proscribed conduct resulted from the accused’s own actions while the child seat belt offence “deals with a situation in which another person – the child passenger – is potentially involved in creating the violation.” He held that it was counterintuitive to exclude the defence of due diligence where the offence involved failing to meet a standard of care with respect to another person.
[20] Finally, MacPherson J.A. added this important point, at para. 40:
[Section 106(4)] of the HTA does not expressly exclude the defence of due diligence. The language of absolute liability is well-known and has been used by the legislature in the HTA in s. 84.1. If the legislature wanted to impose the serious consequences that flow from the creation of an absolute liability offence, the means for so doing would have been known and available.
[21] He concluded, at paras. 43-44 that the “strong presumption in favour of strict liability” created by Sault Ste. Marie had not been displaced.
Should Kanda be applied?
[22] The appellant urges us to distinguish Kanda on the ground that the offence created by s. 106(2) involves solely the accused’s own actions and does not involve the conduct of another person for whom the accused is responsible. The Attorney General, supporting this argument, points out that the seat belt requirement is an uncomplicated, one-step action fully within the driver’s personal and physical control.
[23] I disagree with the submission that we should distinguish Kanda and hold that s. 106(2) creates an absolute liability offence for the following reasons.
[24] First, the involvement of the child passenger was only one of many factors mentioned in Kanda. As I read the judgment, the dominant factor was that there was nothing in the language used by the legislature to displace the presumption mandated by Sault Ste. Marie in favour of strict liability.
[25] Second, Kanda’s holding that the s. 106(4) offence is one of strict liability favours holding the s. 106(2) offence to be the same. Section 106 contains a detailed scheme as to seat belts and uses similar language to create a variety of offences without specifying the level of fault required. There is no statutory language indicating an intention to classify differently offences that prohibit similar conduct and appear in the same section of the governing statute.
[26] Third, while the possible involvement of the child in the commission of the s. 106(4) offence makes it more obvious that the s. 106(4) offence should be classified as strict liability, the more obvious classification of s. 106(4) does not preclude the same classification for the closely related and similar offence created by s. 106(2). It is easy to imagine situations where a driver has taken reasonable steps to ensure that a child passenger is securely seat belted but the child manages to unfasten the belt. While it is more difficult, it is not impossible to imagine situations where a driver finds him or herself not securely seat belted despite having taken reasonable steps to secure the belt.
[27] Fourth, I agree that because the s. 106(2) offence involves a simple act entirely within the control of the driver, situations in which a defence of due diligence arise are bound to be rare. However, it seems to me quite possible that a driver could take reasonable steps to fasten his or her seat belt, only to find that the belt did not close properly or had come undone. I fail to see why the small chance of such an occurrence should deprive the driver of the opportunity to present a due diligence defence. As held in R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at paras. 44, 49-50, if the offence is defined in such a way that it is impossible to do the prohibited act and, at the same time, to have acted with due diligence, “the precision of the language used” by the legislature will point to absolute liability. However, as Raham also held, the fact that a due diligence defence will not be readily available given the nature of the offence is not a reason to exclude it as a matter of law. In my view, while the defence of due diligence is not be readily available for the offence created by s. 106(2), it is not impossible to establish. Accordingly, there is nothing in the way the offence is defined that rebuts the strong presumption of strict liability.
Exceptions
[28] Burlington argues that the exceptions found in s. 106(6) point to absolute rather than strict liability. That subsection provides that the requirement to wear a seat belt does not apply to a person who is driving the vehicle in reverse, to persons who cannot wear a seat belt for medical reasons or because of their size or other physical characteristics or who have work-related need to alight from the vehicle at frequent intervals. There is also a detailed regulation, enacted pursuant to s. 106(8)(e) providing for further exemptions.
[29] The appeal judge concluded that the existence of these exemptions supported the proposition that s. 106(2) is a strict liability offence, citing the judgment of Tarnopolsky J.A. in R. v. Nickel City Transport (Sudbury) Limited (1993), 1993 8483 (ON CA), 82 C.C.C. (3d) 541 (Ont. C.A.), at pp. 554-555.
[30] Burlington points out that this court has found some offences that contain exceptions to be absolute liability offences: see Kurtzman and Polewsky.
[31] I am not persuaded that the presence or absence of the statutory exceptions to s. 106(2) has any particular bearing on the issue we must decide. I agree with how Arbour J.A. put it in her concurring reasons in R. v. Nickel City Transport, at p. 568:
I attach little significance to the fact that the legislation allows for exceptions to be enacted by regulation. Absolute liability means liability without proof of fault. It does not mean that the proscribed conduct can suffer no legislated exception. It merely means that those not exempted have no excuse for failing to comply.
[32] The exceptions exclude the prosecution of certain individuals who have very specific needs and reasons not to wear a seat belt. The exceptions neither arise from nor relate to the concept of due diligence. The case we have to decide deals with the plight of an individual who has no such needs and who argues that he exercised due diligence to comply with the law.
Conclusion
[33] Holding s. 106(2) to be an offence of strict liability comports with the wisdom of Sault Ste. Marie by enabling efficient and effective enforcement of important public safety legislation while avoiding the injustice of no-fault liability. The prosecution need only prove that the driver was not wearing a seat belt. As this court stated in Kanda, at para. 31, “[s]trict liability is what its name implies – a serious commitment to enforcement of the law.” But in the admittedly rare case where the driver has done his or her best to comply, the injustice of conviction without fault is avoided.
[34] I wish to emphasize that because of the way this case came to us, we are not asked to decide whether Mr. Wilson’s evidence at trial made out a due diligence defence. It is common ground that as he was precluded from advancing that argument before the Justice of the Peace at trial, if the Justice of the Peace was wrong in concluding that the offence was one of absolute liability, a new trial would be required. A defence of due diligence to this charge would only be made out where, although the driver was found not wearing his or her seat belt when driving, the driver had taken all reasonable care to wear the seat belt. As Doherty J.A. stated in Raham, at para. 48, citing Kurtzman at para. 37, “a due diligence defence is not made out by acting generally in a reasonable way”.
Disposition
[35] For these reasons, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree David Watt J.A.”
“I agree M.L. Benotto J.A.”
Released: March 21, 2014