Court File and Parties
Court File No.: 4656454A & 4656483A & 110084
Ontario Court of Justice
Between:
Her Majesty the Queen
v.
Lakeside Rat Rapids Enterprises Limited (Respondent/Cross-Appellant)
Before: Justice P.T. Bishop
Trial Heard: May 23, 2013
Reasons for Judgment Appeal Released: April 14, 2014
Counsel:
- S. Down – MTO Prosecutor
- R. Noel – Counsel for the Respondent/Cross-Appellant
BISHOP J.:
BACKGROUND
[1] This matter comes before me by way of an appeal from the decision of His Worship Justice of the Peace R. McNally on May 23, 2013. The appellant appeals the sentence, namely the suspending of the passing of the fine portion of the sentence and the respondent/cross-appellant appeals the finding of the convictions.
[2] The Respondent, Lakeside Rat Rapids Enterprises Limited was convicted of the following offences:
Certificate No. 4656483A – Lakeside Rat Rapids Enterprises Limited being charged on or about the 16th day of February, 2011 at 3:29 p.m. at Weyerhaeuser Mill, Jones Road, Kenora, did commit the offence of overweight vehicle during freeze-up, 7,010 kilograms contrary to Section 119(4) of the Highway Traffic Act; and further
Certificate No. 4656454A – Lakeside Rat Rapids Enterprises Limited on or about the 13th day of February, 2011 at 3:57 p.m. at Weyerhaeuser Mill scale, Kenora, did commit the offence overweight vehicle during freeze-up, contrary to Section 119(4) of the Highway Traffic Act; and further
Information No. 110084 – Lakeside Rat Rapids Enterprises Limited on or about the 8th day of March, 2011, at Weyerhaeuser Mill scale, Jones Road, Kenora, did commit the offence of unlawfully operating on a highway a commercial motor vehicle bearing Ontario registration 7576TW in conjunction with a trailer was carrying a load in excess of that for which the motor vehicle permit was issued as stated upon the permit to wit: exceeded the registered gross weight by 7,800 kilograms during freeze-up, contrary to Section 119(4) of the Highway Traffic Act.
[3] Section 119 of the Highway Traffic Act states as follows:
i) Raw forest products allowance during freeze-up – Despite sections 116, 117, 118 and subsection 121(1), during freeze-up the maximum allowable gross vehicle weight for a vehicle or combination of vehicles, while used exclusively for the transportation of raw forest products, shall be 110 per cent of that weight for which a permit has been issued for the vehicle or combination of vehicles in accordance with section 7, provided no axle unit weight, axle group weight vehicle or gross weight exceeds by more than 110 per cent that weight prescribed in this Act or the regulations for such vehicle or combination of vehicles.
ii) Designation of freeze-up – For the purposes of this section, an official of the Ministry authorized by the Minister in writing may designate the date on which a freeze-up shall commence and the date on which a freeze-up shall terminate and the part of the Province to which the designation shall apply.
iii) Part III (Regulations) of the Legislation Act, 2006 does not apply – A designation under subsection (2) is not a regulation within the meaning of Part III (Regulations) of the Legislation Act, 2006.
DECISION
[4] I have carefully reviewed Justice of the Peace McNally's decision and can find that he made no error in law in analyzing the elements of each and every offence. Specifically he found that Mr. Amos Bange was the driver of a five-axle picker trailer operated during the freeze-up as contemplated in Section 119 of the Highway Traffic Act. He also found that the certified copy of the trailer plate was all that was required as plates are often lost or damaged. Further, the best evidence with respect to the trailer weight, source of wood etc. was provided by the driver which was recorded on the receipt generated at the scale.
[5] As well the Justice of the Peace applied the correct test for a non-suit.
[6] He considered the other sections referred to by the Defence, namely Section 116, Section 117, Section 118, Section 121 and Section 122 of the Highway Traffic Act and found them not to be relevant and that the correct charges were pursuant Section 119(4) of the Highway Traffic Act. The Justice of the Peace carefully reviewed each ticket and the facts found therein.
[7] The Justice of the Peace found the tractor and trailer had to travel on a public highway to get to the Weyerhaeuser Mill and that the Weyerhaeuser Mill's scales were calibrated and working properly. It was irrelevant that the video camera was not working at the scale.
[8] In total, the Justice of the Peace found that all elements of the offence for each charge were proven by the Crown beyond a reasonable doubt. There was no speculation but rather he weighed the evidence drew inferences there from and articulated his conclusions.
[9] The Justice of the Peace found that this is a strict liability offence and that Section 119 of the Highway Traffic Act allowed a due diligence defence to be advanced but that was not done. He imposed a fine of $100.00 plus $20.00 costs for each charge for a total of $360.00. He specifically stated that nine CVOR points will be lost as a result of these convictions as that was pursuant to the Regulation and he could not exercise any discretion in that regard.
[10] He found that the correct charges were laid pursuant to Section 119 and he found that Section 121 was not before him.
[11] The convictions are therefore upheld.
[12] The Justice of the Peace made an error in receiving submissions about a potential bankruptcy or the demise of the accused business. There was no evidence with respect to a bankruptcy or that the business may lose its livelihood as a result of these convictions. Justice of the Peace McNally then went on to suspend the passing of sentence purportedly applying Section 59 of the Provincial Offences Act which allows a Judge or Justice of the Peace where in the opinion of the court exceptional circumstances exist so that he can impose the minimum fine or otherwise not in the interest of justice, the court may impose a fine that is less than the minimum or suspend the sentence.
Section 59 of the Provincial Offences Act states as follows:
1) Provision for minimum penalty – No penalty prescribed for an offence is a minimum penalty unless it is specifically declared to be a minimum.
2) Relief against minimum fine – Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose a minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.
3) Idem, re imprisonment – Where a minimum penalty is prescribed for an offence and the minimum penalty includes imprisonment, the court may, despite the prescribed penalty, impose a fine of not more than $5,000 in lieu of imprisonment.
[13] Section 59(2) speaks to the relief against a minimum fine. In this case there were no exceptional circumstances and a $100.00 fine does not trigger Section 59(2). Here the Justice of the Peace suspended the passing of sentence and took into account submissions, not evidence, and that constitutes an error of law.
[14] In these circumstances, I impose the minimum fine of $100.00 plus $20.00 on each charge for a total of $360.00 and grant the company ninety days time to pay.
Released: April 14, 2014
Signed: Justice P.T. Bishop