Court of Appeal for Ontario

Date: 20210924 Docket: C68464

Feldman, Paciocco and Nordheimer JJ.A.

Between

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

and

Becker Bros. Trucking Inc. Respondent

Counsel: Patrick Moore, for the appellant James Manson, for the respondent

Heard: September 2, 2021 by video conference

On appeal from the judgment of Justice G. Mark Hornblower of the Ontario Court of Justice, dated January 31, 2020, allowing an appeal from the conviction entered by Justice of the Peace Salma Jafar of the Ontario Court of Justice, dated November 27, 2018.

By the Court:

[1] The Crown, as represented by the Ministry of Transportation, appeals, with leave, from the judgment of the appeal judge, who allowed an appeal and set aside a conviction imposed on the respondent for an offence contrary to s. 84(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). For the following reasons, we would allow the appeal and reinstate the conviction and sentence imposed.

A. Background

[2] On October 4, 2017, Ministry of Transportation (the “Ministry”) inspectors on duty at the truck inspection station on Highway 401 in the Town of Lakeshore stopped and inspected a commercial motor vehicle combination consisting of a three-axle tractor used in conjunction with a three-axle trailer.

[3] During the inspection, the inspectors checked the adjustment on the brakes of the trailer. Four of the six brakes were substantially beyond the push rod adjustment limits set by regulation. A trailer with such a severe air brake adjustment flaw has a “critical defect” within the meaning of Ontario Regulation 512/97 made under the HTA.

[4] A Ministry inspector requested documents from the truck driver, including the truck permit, trailer permit, Commercial Motor Vehicle Operator's Registration certificate, driver's daily log, and vehicle inspection report. She made photocopies of the documents and verified that they were the same as the originals.

[5] Subsection 84(1.1) of the HTA deems a commercial motor vehicle with a critical defect to be in a dangerous or unsafe condition. Charges were laid under section 84 of the HTA against the driver for operating a combination of vehicles in a dangerous or unsafe condition and against the respondent for permitting the operation of the vehicles.

B. The decisions below

(1) The Trial

[6] A trial of the charges was heard before a Justice of the Peace of the Ontario Court of Justice under the Provincial Offences Act, R.S.O. 1990, c. P.33. At trial, the respondent was linked to the unsafe tractor-trailer both by documents that appeared to have been copied from the Ministry records and by the photocopies of the documents received from the driver. The various documents showed that the respondent was the permit holder for the commercial motor vehicle and the trailer, the holder of the Commercial Motor Vehicle Operator's Registration certificate, the operator, and the carrier.

[7] The copies of the Ministry documents presented as evidence by the prosecution purported to be “certified” copies of Ministry records of the truck and trailer ownerships and the Commercial Motor Vehicle Operator's Registration information. The copies of the Ministry documents were stapled to a cover sheet, which cover sheet included the Ministry of Transportation seal, the signature of the Registrar of Motor Vehicles, the date, and a certification recital.

[8] The certification recital included the following wording:

I hereby certify that the paper or papers annexed hereto constitute true statements containing information from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act.

[9] At trial, the defence objected to the admission of the first such record, that is, the permit information for the commercial motor vehicle. A voir dire was requested. The Justice of the Peace ruled that the document should be admitted into evidence without a voir dire because the requirements of s. 210 of the HTA for admission of a certified record had been met.

[10] There was no objection at trial to the introduction of other, similarly “certified”, records identifying the respondent as the trailer owner and the holder of the Commercial Motor Vehicle Operator's Registration certificate.

[11] The photocopies made by the inspector of the documents surrendered by the driver were also entered as exhibits at trial. These included the commercial motor vehicle permit, the trailer permit, the Commercial Motor Vehicle Operator's Registration certificate, and the combined log and trip inspection report. There were no objections to the admission of the copies into evidence. There were also no objections when the inspector used the copies to identify the respondent's positions of responsibility for the tractor-trailer.

[12] No evidence was adduced at trial by the defence to contradict, rebut, or call into doubt the accuracy of the information shown in any of the “certified” Ministry records or in any of the documents received from the driver.

[13] The Justice of the Peace convicted both the driver and the respondent of the charges.

(2) The Appeal

[14] On appeal, the appeal judge ruled that the “certified” documents of the Ministry records were inadmissible. He found that s. 210 of the HTA had not been complied with. Specifically, the appeal judge found that it was insufficient for the certificate to have used general terms to refer to the Ministry records attached to the certifying front page. The appeal judge said:

In order to meet the statutory requirement in s. 210(7) that the copy of the document purports to be certified by the Registrar as being a true copy, the certificate needs to state the nature of the document, in this case, a vehicle record. Simply referring to the paper or papers attached is too vague to comply with the statutory requirement. The statute not having been complied with, the certificate should not have been admitted into evidence.

[15] The appeal judge also ruled that the copies of the documents received by the Ministry inspector from the driver, that identified the respondent as the owner of the truck and trailer and the holder of the relevant Commercial Motor Vehicle Operator's Registration certificate, were not admissible against the respondent for the truth of their contents. In so ruling, the appeal judge did not refer to s. 216.1 of the HTA, which specifically provides for the introduction into evidence of copies of documents received from commercial motor vehicle drivers.

[16] The appeal judge quashed the conviction of the respondent. However, he upheld the conviction of the driver. It is the decision with respect to the respondent that now comes before this court, with leave having been granted.

C. Analysis

[17] In our view, the appeal judge erred in both of his conclusions.

(1) The Certificates

[18] Turning first to the certified copies of the documents from the records of the Ministry, s. 210(7) of the HTA reads:

A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar’s signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.

[19] It is evident that s. 210(7) does not specify the form of certification. The respondent relies on related provisions to argue that the certification, including the seal of the Ministry and the Registrar’s signature, must be placed directly “on” the copy. Those related provisions read, with emphasis added:

210(8) The Registrar’s signature on a copy or a statement described in subsection (7) may be an original signature or an engraved, lithographed, printed or otherwise mechanically or electronically reproduced signature or facsimile signature.

210(9) The seal of the Ministry on a copy or statement described in subsection (7) may be affixed by impression or may be engraved, lithographed, printed or otherwise mechanically or electronically reproduced seal or facsimile of a seal.

210(10) The Registrar’s signature on a copy or statement described in subsection (7) nee only be on the first page of the copy or statement.

210(11) The seal of the Ministry on a copy or statement described in subsection (7) need only be on the first page of the copy or statement if the following pages are sequentially numbered, by hand or otherwise; if the pages following the first page are not sequentially numbered, the seal must be on each page.

[20] Curiously, despite maintaining that these provisions of the HTA require the Registrar’s signature and the Ministry Seal to be directly “on” the copy, the respondent supports the appeal judge’s position that certification can be accomplished using a cover sheet, so long as the cover sheet specifically describes the documents being certified. No attempt was made to explain how this form of certification is grounded in the legislation, despite ss. 210(8) - 210(11).

[21] It is important to note that s. 210(7) refers to both a copy of any document and “any statement containing information from the records”. The legislation therefore contemplates proof by certified documents, or by a certified statement containing information from the records. Had the certification, including the Registrar’s signature and the Ministry Seal, been placed directly on the first page of each photocopy, those documents would clearly have been “certified” copies of Ministry documents.

[22] However, we do not need to decide whether copies that are certified by cover page are certified documents under s. 210(7) of the HTA because the documents admitted into evidence were certainly certified “statements” within the meaning of s. 210(7). Without question, a typed document duplicating the content of a Ministry document would have qualified as a “statement”. It would be illogical if a document that states that appended photocopies are from the Ministry records did not similarly qualify as a “statement containing information from the records”. That is what was offered into evidence in this case. Indeed, the certification by the Registrar referred to statements containing information from the records of the Ministry. The documents attached to the certificate appeared, on their face, to be such statements and the cover page formed part of that statement. The Registrar’s signature, and the seal of the Ministry, were on the first page of each such document. The documents were therefore admissible.

[23] Another relevant consideration on this issue is that subsection 210(7) only makes the documents presumptively admissible. The subsection contains an express provision that, if contrary evidence is led, then the documents are not proof of the facts contained in the statement. Thus, a person charged with an offence is protected from a certified document that is inaccurate. As earlier noted, no such contrary evidence was led in this case.

(2) The Documents Produced by the Driver

[24] Given our conclusion on the first ground, it is not technically necessary for us to address the second ground. We do so, however, because it was argued and because the appeal judge addressed it as part of his reasons on the appeal. Further, we are aware that this issue has arisen in other cases.

[25] In terms of the second ground of appeal, the appeal judge ruled that the copies of the documents that the inspector took from the driver, while admissible against the driver, were not admissible in evidence for the proof of their contents as against the respondent because, having ruled that the certificates were inadmissible, there was no proof of the respondent’s ownership of the unsafe vehicles. The appeal judge relied on two decisions in reaching his conclusion about these documents: R. v. Swish Maintenance Limited, [2005] O.J. No. 3958 (C.J.) and R. v. 2934752 Canada Inc. (c.o.b. Highland Transport), (1997) 17 M.V.R. (4th) 48 (Ont. C.J.).

[26] In our view, neither of these decisions is of assistance in this case. In Swish Maintenance, it does not appear that the officer took a copy of the documents but, rather, just relied on his notes. In addition, there were no certified copies from the Ministry’s records offered in evidence. The same appears to have been the case in 2934752 Canada Inc.

[27] Of more importance, however, is the fact that the appeal judge did not make any reference to s. 216.1 of the HTA in his reasons. That section requires, among other things, the driver, operator, or other person in control of the vehicle to surrender all documents relating to the ownership and operation of the vehicle. It also permits an officer to make copies of such documents. Once copies are made, those copies may be admissible in evidence under s. 216.1(5), which reads:

Any copy made as provided in subsection (4) and certified to be a true copy by the person making it is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the original document and of the contents of the original document.

[28] The appellant contends that the documents produced to the inspector are admissible under s. 216.1(5). We are inclined to agree with that contention. The inspector’s sworn evidence could be seen as being a sufficient certification of the documents to make the subsection apply. Indeed, it would be more direct evidence of the copies being true copies than a formal certificate would be. Further, such an approach to the subsection would accord with its apparent purpose and would be consistent with affording the subsection “such fair, large and liberal interpretation as best ensures the attainment of its objects”: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1).

[29] Regardless of that issue, though, the documents were admissible since they fall under an exception to the hearsay rule. The copies of the documents that were placed into evidence through the inspector are all documents that are required by the HTA to be carried in the vehicle. For example, s. 7(5) of the HTA requires every driver of a motor vehicle on a highway to carry the permit for it. Similarly, s. 16(3) requires every driver of a commercial motor vehicle to carry the original or a copy of the CVOR certificate issued to the operator of the vehicle. We also note that s. 261.1(3) requires “the driver, operator or other person in control of the vehicle to surrender all documents relating to the ownership and operation of the vehicle”.

[30] Thus, the copies of such documents obtained by an inspector by virtue of s. 216.1, when placed into evidence, constitute evidence of the ownership of the vehicle once the owner, or an agent of the owner such as the driver in this case, produces them. The production of the documents relating to the ownership of the vehicle required by the HTA to be kept, and produced on request, are receivable against the owner as admissions to prove the truth of their contents, pursuant to the documents in possession branch of the admissions exception to the hearsay rule: Bukshtynov v. McMaster University, 2019 ONCA 1027, at para. 19. Again, there was no evidence to the contrary.

[31] The appeal judge erred both in ruling that the statement from the Ministry’s records was inadmissible and in ruling that the copies of the documents that the inspector received from the driver were inadmissible for the truth of their contents as against the respondent. His decision to quash the conviction based on those rulings cannot stand and must be set aside.

(3) The Proposed Fresh Evidence

[32] Finally, we address the fresh evidence motion brought by the respondent. Through the motion, the respondent seeks to place before this court what it says are examples from other prosecutions where the certificate from the Ministry contained more particular descriptions of the records attached. We would not admit the fresh evidence. It does not satisfy the test from Palmer v. The Queen, [1980] 1 S.C.R. 759, for the admission of fresh evidence in at least two respects. One is that the evidence could, by due diligence, have been adduced at trial. The other is that the evidence could not be expected to have affected the result. The trial judge would still have had to determine what the wording of s. 210 of the HTA did or did not require.

D. Conclusion

[33] We allow the appeal, set aside the judgment below, and reinstate the conviction and the sentence imposed on the respondent.

Released: September 24, 2021 “K.F.” “K. Feldman J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”