Court File and Parties

Court File No.: St. Catharines - 2111-999-00-1860175A-00

Date: 2013-04-24

Ontario Court of Justice

Between:

Her Majesty the Queen Appellant/Applicant

— And —

Gene Michaud Respondent

Before: Justice D.A. Harris

Heard on: December 3, 2012

Ruling released on: April 24, 2013

Counsel

J. Hunter ........................................................................................ for the Appellant/Applicant

L. Bisset ........................................................................................................ for the Respondent

Ruling

HARRIS J.:

Background

[1] The Respondent, Gene Michaud, was charged with driving a commercial vehicle not equipped with a working speed limiting system contrary to section 68.1(1) of the Highway Traffic Act of Ontario.

[2] Section 68.1(1) of the Highway Traffic Act and section 14 of Ontario Regulation 587 require commercial trucks to be equipped with speed limiting systems set at a maximum speed of 105 km/h.

[3] At trial, Mr. Michaud challenged the constitutionality of section 68.1(1) on the basis that the section created unsafe driving conditions, thereby infringing his right to security of the person as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.

[4] The presiding Justice of the Peace found in favour of Mr. Michaud and struck down section 68.1 of the Highway Traffic Act for this instance.

[5] The Appellant appealed against that decision.

Application for Fresh Evidence

[6] The Appellant then brought an application for an order that a supplementary affidavit prepared by the Appellant's expert, Frank Saccomanno, be admitted as fresh evidence at the hearing of the appeal.

[7] Counsel made their submissions with respect to this application on December 3, 2012.

[8] At that time, they agreed that if I did order that the supplementary affidavit should be admitted as fresh evidence, I should order that a further affidavit prepared by Mr. Michaud's expert be admitted as fresh evidence as well, and that both affiants should be cross-examined before a special examiner and that the transcripts of those cross-examinations would also be admitted as fresh evidence on the appeal.

[9] After hearing from counsel, I granted the application and made the orders sought, indicating that I would provide my reasons on a later day.

[10] The following are my reasons for that ruling.

Legal Framework

Provincial Offences Act - Part I Appeals

[11] This was a proceeding commenced under Part I of the Provincial Offences Act.

[12] Section 136 of the Provincial Offences Act governs Part I appeals. It provides that:

136.—(1) Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined.

(2) An appeal shall be conducted by means of a review.

(3) In determining a review, the court may,

(a) hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit;

(b) receive the evidence of any witness whether or not the witness gave evidence at the trial;

(c) require the justice presiding at the trial to report in writing on any matter specified in the request; or

(d) receive and act upon statements of agreed facts or admissions.

[13] The Ontario Court of Appeal stated in R. v. 1275729 Ontario Inc. that

36 Section 136(3)(b) gives the appeal court in a Part I proceeding an unrestricted power to receive further evidence. That power is consistent with an appeal being conducted by way of a review of the trial proceedings that is akin to a trial de novo.

37 This court's interpretation in Stephenson of that very different appeal provision (which was then s. 119(3)(b)) does not assist in giving meaning to s. 117(1)(d). If anything, the presence of s. 136(3)(b) indicates that where the legislature wanted to give appellants a virtually unrestricted right to adduce evidence on appeal, it did so in the fashion described in s. 136(3)(b). For appeals in Part III proceedings, the legislature chose to use the language of the Criminal Code, thereby adopting the well established approach to the determination of when it would be "in the interests of justice" to admit fresh evidence on appeal.

Reconciling Part I and Part III Standards

[14] I must, however, also consider the comments of Takach J. in R. v. Badesha, 2010 ONSC 3949, where he stated that

In my view, the primary issue is to determine whether or not s. 136 of the Provincial Offences Act trumps all of the case law dealing with fresh evidence and the law in particular with respect to survey evidence. In my view, the case law relied on by the Attorney General for Ontario should not be discarded simply because the offence in question is a Part I certificate offence. While it may be legitimately argued that at least with respect to some of the requirements of fresh evidence the rules should be relaxed in routine Part I offences, I do not believe that this is one of them, having regard to the circumstances of the case and the way that it has developed. In addition, I do not read the foregoing passages from R. v. 1275729, supra, as giving carte blanche to applicants wishing to adduce evidence on appeal that was not proffered at trial even on more straightforward cases. As well, I take the view that R. v. 1275729 Ontario Inc. was not a decision primarily concerned with the interpretation of s. 136 of the Provincial Offences Act. I have already noted that the real issue in Stephenson involved the summary conviction appeal judge erroneously concluding that a formal notice of motion had to be brought and the finding not supported on the evidence, that the crown was taken by surprise. Similarly, I do not regard R. v. 1275729 as standing for the proposition that the factors enumerated in Palmer never, in any circumstance, are deserving of consideration in any Part I appeal, regardless of the circumstances of the case or the complexity of the issues before the trial judge. I note as well that s. 136(3) is permissive rather than mandatory.

[15] In short, Takach J. took the position that even in Part I appeals, the principles set out by the Supreme Court of Canada in R. v. Palmer are relevant in deciding whether to receive fresh evidence although those rules might be relaxed in appropriate cases.

Provincial Offences Act - Part III Appeals

[16] It is therefore necessary to review the provisions in the Provincial Offences Act with respect to Part III appeals.

[17] In that regard, section 117 of the Provincial Offences Act provides that:

117. (1) The court may, where it considers it to be in the interests of justice,

(a) order the production of any writing, exhibit or other thing relevant to the appeal;

(a.1) amend the information, unless it is of the opinion that the defendant has been misled or prejudiced in his or her defence or appeal;

(b) order any witness who would have been a compellable witness at the trial, whether or not he or she was called at the trial,

(i) to attend and be examined before the court, or

(ii) to be examined in the manner provided by the rules of court before a judge of the court, or before any officer of the court or justice of the peace or other person appointed by the court for the purpose;

(c) admit, as evidence, an examination that is taken under subclause (b)(ii);

(d) receive the evidence, if tendered, of any witness;

(e) order that any question arising on the appeal that,

(i) involves prolonged examination of writings or accounts, or scientific investigation, and

(ii) cannot in the opinion of the court conveniently be inquired into before the court,

be referred for inquiry and report, in the manner provided by the rules of court, to a special commissioner appointed by the court; and

(f) act upon the report of a commissioner who is appointed under clause (e) in so far as the court thinks fit to do so.

(2) Where the court exercises a power under this section, the parties or their representatives are entitled to examine or cross-examine witnesses and, in an inquiry under clause (1)(e), are entitled to be present during the inquiry and to adduce evidence and to be heard.

[18] The section therefore gives me the discretionary power to admit fresh evidence where I consider it to be in the interests of justice.

The Palmer Test

[19] The Ontario Court of Appeal stated in R. v. 1275729 Ontario Inc. that "the principles enunciated in Palmer do guide the exercise of the discretion to receive fresh evidence on appeal under s. 117(1) of the POA".

[20] Those principles are as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in a civil case;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Application of Palmer Criteria

[21] I found that the proposed fresh evidence satisfied all four criteria.

Background of the Constitutional Challenge

[22] I note that, at trial, Mr. Michaud did not dispute the facts that established the elements of the offence with which he was charged. Rather, he challenged the constitutionality of the legislation on the basis that it infringed his rights under section 7 of the Charter by preventing him from accelerating to more than 105 km/h, thereby avoiding dangerous driving situations.

[23] The constitutional challenge was argued before the presiding Justice of the Peace on January 20 and 23, 2012. It was argued on the basis of affidavit evidence and transcripts of cross-examinations. Mr. Michaud and his expert witness provided the evidence for the defence. The Crown presented the evidence of Dr. Saccomanno.

Nature of the Proposed Fresh Evidence

[24] The proposed fresh evidence consists of a supplementary affidavit in which Dr. Saccomanno assessed the findings of a new study released in March 2012 by the United States Federal Motor Carrier Safety Administration entitled Research on the Safety Impact of Speed Limiter Device Installations on Commercial Motor Vehicles: Phase II.

[25] This study was released after Dr. Saccomanno had completed his original affidavit and after the case had been argued before the presiding Justice of the Peace.

[26] The study consists of a literature review, a cohort study and a negative binomial regression analysis.

[27] Counsel for the Appellant conceded that there was nothing new in the literature review. I was satisfied that the other components of the study contained new information however that could not have been introduced at the trial.

Criterion 2: Relevance

[28] I was also satisfied that the proposed fresh evidence is relevant to the question of whether Mr. Michaud's security of the person was infringed by having his vehicle's speed limited.

[29] In Dr. Saccomanno's opinion, the cohort study established

a major empirical link between observed carrier crash rates and speed limiter use. Furthermore it provides sound statistical evidence that truck speed limiters yield positive safety benefits in reducing crashes where speeding is a problem. The study provides a strong empirical counterargument to the view that limiters increase speed variance and this increased speed variance leads to higher car - truck crash frequency.

[30] The proposed fresh evidence therefore responds directly to the allegations made by Mr. Michaud and his expert that speed limiters make driving more dangerous by increasing the speed variance between speed limited trucks and other vehicles.

[31] It also addresses the issue of whether the legislation was arbitrary. It is certainly arguable that if accident rates are reduced to a significant degree by the use of speed limiters, then legislation making the use of such speed limiters is not arbitrary.

Criterion 3: Credibility

[32] I was also satisfied that the proposed fresh evidence is credible in the sense that it is reasonably capable of belief. In that regard, I agree that the test is credibility and not perfection.

[33] I note here that the fresh evidence will be in the form of affidavits and transcripts of the cross-examination of the affiants. This is the same as the evidence that was before the presiding Justice of the Peace. Accordingly, I will be able to assess credibility as well as he could.

Criterion 4: Potential to Affect Result

[34] Finally I was satisfied that, if believed, the proposed fresh evidence could reasonably be expected to have affected the result.

[35] The presiding Justice of the Peace did not choose one expert over the other. His decision was based more on what was not in the evidence before him.

[36] The presiding Justice of the Peace stated in his reasons for judgment that:

There is no research that says that the use of speed limiters has resulted in increased safety and a decrease in the accident rates in those jurisdictions that have implemented them. There are no studies providing any empirical scientifically supported evidence demonstrating before and after affects speed limiters…

[37] The proposed fresh evidence directly addresses that finding.

[38] For that reason, I was satisfied that, had it been available at trial, the proposed fresh evidence, taken together with the other evidence already presented in the case, could reasonably have affected the result.

Conclusion

[39] Finally, I note that the impact of this decision regarding this constitutional issue may ultimately be felt well beyond this case. Accordingly, it is important that the issue be decided on the basis of all relevant material that might be available.

[40] After taking all of the above into account, I was satisfied that it was in the interests of justice to receive the proposed fresh evidence on the appeal.

[41] I therefore ordered that the supplementary affidavit of Frank Saccomanno will be admitted as fresh evidence on the appeal. Counsel for both parties will arrange for cross-examination of Frank Saccomanno. Counsel will also arrange for the service and filing of any further affidavits which the Respondent wishes to file, plus cross-examination of the affiant(s).

Released: April 24, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris