Court File and Parties

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

Date: 2014-05-15

Ontario Court of Justice

Between:

Her Majesty the Queen Appellant

— And —

Gene Michaud Respondent

Before: Justice D.A. Harris

Heard: September 17, 2013

Reasons for Judgment released: May 15, 2014

Counsel:

• Josh Hunter, for the Appellant
• David Crocker and Laura Bisset, for the Respondent

Reasons for Judgment

HARRIS J.:

Introduction

[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(1) of the Highway Traffic Act for this instance.

[5] The Appellant appealed against that decision.

[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] After hearing from counsel, I granted the application and made an order that:

(1) the supplementary affidavit should be admitted as fresh evidence;

(2) a further affidavit prepared by Mr. Michaud's expert should be admitted as fresh evidence as well; and

(3) both affiants should be cross-examined before a special examiner and the transcripts of those cross-examinations would also be admitted as fresh evidence on the appeal.

[8] Counsel for Mr. Michaud subsequently filed an affidavit by Dr. Steven Johnson, a Professor of Industrial Engineering. He and Dr. Saccomanno were cross-examined and the transcripts were filed.

Death of Gene Michaud and Application to Substitute Barbara Michaud for Her Husband and to Proceed with Appeal

[9] Mr. Michaud died before the appeal was heard.

[10] An application was made to substitute his widow Barbara Michaud as Respondent and to proceed with the appeal.

[11] Counsel for both the Appellant and the Respondent agreed that I should make these orders. I did so, indicating that I would provide written reasons later.

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

[13] In R. v. Smith, the Supreme Court of Canada determined that when an appellant dies, the appeal court retains jurisdiction to proceed "in the interests of justice", but it is a jurisdiction that should be sparingly exercised.

[14] A motion should be made for substitution of the personal representative or another interested party for the deceased.

[15] The court must then consider whether to exercise its jurisdiction to hear the appeal despite it being rendered moot by the death of the party, or to abate the appeal. The general test is whether there exist special circumstances that make it "in the interests of justice" to proceed.

[16] That question may be approached by reference to the following non-exhaustive factors:

(1) the presence of a proper adversarial context;

(2) the strength of the grounds of the appeal;

(3) the existence of special circumstances that transcend the death of the individual appellant/respondent, such as a legal issue of general public importance, a systematic issue related to the administration of justice, or collateral consequences to the family of the deceased, to other interested persons, or to the public;

(4) the expenditure of limited judicial (or court) resources; and

(5) whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing legislative-type pronouncements more properly left to the legislature itself.

[17] Those cases in which it will be proper to exercise jurisdiction will be rare and exceptional.

[18] The Respondent's widow applied to take the Respondent's place in these proceedings.

[19] It was clear that a proper adversarial context existed.

[20] The strength of the appeal from the Respondent's perspective could be presumed. He was successful in the decision appealed from.

[21] I am satisfied that continuing the appeal would not go beyond the judicial function of resolving concrete disputes and involve the court in free-standing legislative-type pronouncements more properly left to the legislature itself.

[22] I was informed that Mr. Michaud was a member of an organized group of independent truckers who chose to challenge the validity of section 68.1(1). That group wishes to have the issue decided by a court that has standing to make a binding declaration of invalidity with respect to the section. At present, the Province of Ontario has taken the position, quite correctly, that the presiding Justice of the Peace declared the section to be invalid as against Mr. Michaud only. Any other member of Mr. Michaud's group (several of them face the same charge that Mr. Michaud did) who wants to achieve the same result, would have to proceed to trial, make the same Charter application, present the same evidence and advance the same arguments. Then, the decision that followed would be appealed by the unsuccessful party.

[23] It was also suggested to me that, since I too lack the prerogative jurisdiction to formally declare legislation to be constitutionally invalid, no matter who is successful before me, the unsuccessful party will seek to appeal my decision to the Court of Appeal where both sides wish to see this case decided.

[24] In short, refusing the application before me would only set the process back temporarily. The issue would just have to be litigated all over again from the start, wasting valuable court time and resources.

[25] For those reasons, I was satisfied that there existed special circumstances that made it "in the interests of justice" to proceed.

[26] Accordingly I made the orders to substitute Barbara Michaud as Respondent and to proceed with the appeal.

Standard of Review on Appeal

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

[28] An appeal under Part I is conducted by means of a review.

[29] The appeal court "may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial."

[30] Duncan J. observed in R. v. Gill that:

The appeal created by these words could hardly be more generous. Unlike appeals from proceedings under POA Part III, or those governed by the Criminal Code, for example, the court is not limited as to when it may intervene - in particular it is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law … Even the requirement in section 138 above that it "is necessary to satisfy the ends of justice" apparently applies only to the order for a new trial, rather than the allowance of the appeal itself.

[31] He went on to state that:

I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.

[32] I agree.

The Test Regarding an Alleged Breach of Section 7

[33] I have a distinct advantage over the presiding Justice of the Peace who delivered his decision before the Ontario Court of Appeal released its reasons in Bedford v. Canada (Attorney General).

[34] Then, further to that, the Supreme Court of Canada released their decision in Canada (Attorney General) v. Bedford three weeks before I was originally scheduled to release my decision here. Counsel for both sides then submitted further written argument.

[35] I have taken the following from the reasons of the Supreme Court of Canada.

[36] Section 7 provides that the state cannot deny a person's right to life, liberty or security of the person, except in accordance with the principles of fundamental justice.

[37] At this stage, the question is whether the impugned laws negatively impact or limit the applicants' security of the person, thus bringing them within the ambit of, or engaging, section 7 of the Charter.

[38] The burden of proving this is that:

the claimant bears the burden of establishing that the law deprives her of life, liberty or security of the person, in a manner that is not connected to the law's object or in a manner that is grossly disproportionate to the law's object. The inquiry into the purpose of the law focuses on the nature of the object, not on its efficacy. The inquiry into the impact on life, liberty or security of the person is not quantitative -- for example, how many people are negatively impacted -- but qualitative. An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7. To require s. 7 claimants to establish the efficacy of the law versus its deleterious consequences on members of society as a whole, would impose the government's s. 1 burden on claimants under s. 7. That cannot be right.

[39] The claimant must establish all of this on the balance of probabilities.

[40] A law that violates section 7 is unlikely to be justified under section 1 of the Charter.

[41] There must be a sufficient causal connection between the state-caused effect and the prejudice suffered by the claimant for section 7 to be engaged.

[42] A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities.

[43] A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link.

[44] The claimant bears the burden of establishing this connection. Even if established, it does not end the inquiry, since the claimant must go on to show that the deprivation of her security of the person is not in accordance with the principles of fundamental justice. Although mere speculation will not suffice to establish causation, to set the bar too high risks barring meritorious claims. What is required is a sufficient connection, having regard to the context of the case.

The Evidence at Trial

[45] At trial, Mr. Michaud admitted all of the facts that established the elements of the offence with which he was charged.

[46] He then 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.

[47] The case was argued before the presiding Justice of the Peace on the basis of affidavit evidence and transcripts of cross-examinations. On the issue of whether speed limiters impaired Mr. Michaud's ability to drive safely, he testified on his own behalf and also presented the evidence of Ms. Julie Cirillo, the retired Assistant Administrator and Chief Safety Officer of the United States Federal Motor Carrier Safety Administration, who was qualified as an expert in traffic safety. The Crown presented the evidence of Dr. Frank Saccomanno, a Professor of Civil Engineering at the University of Waterloo and an expert in speed limiters.

[48] Counsel for the Appellant argued that the presiding Justice of the Peace erred in admitting, much less preferring, the opinions of the Respondent's witnesses to that of Dr. Saccomanno.

[49] I reject the argument that he should not have admitted that evidence. That issue was not argued at trial and I have no idea as to how the presiding Justice of the Peace would have ruled had he been called upon to do so.

[50] The presiding Justice of the Peace accepted Ms. Cirillo as an expert in traffic safety in general while recognizing that by her own admission, she was not an expert on speed limiters.

[51] He accepted the evidence of Mr. Michaud "as observational and that of an experienced professional" transport driver.

[52] He was clearly aware of the limits on the expertise of both of these witnesses.

[53] Despite that awareness, I find that he ultimately gave far too much weight to their evidence. My reasons for this will be set out later.

[54] But first, I will summarize briefly the relevant evidence given by the various witnesses.

[55] Dr. Saccomanno and Ms. Cirillo both agreed that excess speed was a factor in causing motor vehicle accidents and that speed variance was also a factor. They only disagreed as to the relative importance of each factor.

[56] I note here that although the presiding Justice of the Peace gave more weight in the end to the evidence of Ms. Cirillo, he never rejected that of Dr. Saccomanno. On the contrary, he appeared to accept what Dr. Saccomanno had to say. However he accepted the evidence of Ms. Cirillo to a greater extent.

[57] I too accepted the evidence of Dr. Saccomanno. I will comment later on that and on the evidence of Ms. Cirillo.

[58] Dr. Saccomanno gave evidence that speed limiters had been used in Europe since 1992 and were now standard protocol in most E.U. countries.

[59] They were also becoming more prevalent in North America on a voluntary basis, mostly among larger common carriers. This was done primarily to reduce fuel consumption and tire wear but also to reduce the frequency and severity of truck accidents. Speed limiters enhance safety according to American Trucking Associations, the Canadian Trucking Alliance and the Ontario Trucking Association.

[60] Truck speed limiters do not pose safety hazards. On the contrary, they reduce truck crash frequency and severity.

[61] Lower speeds increase time for truckers to react and decelerate and reduce the severity of crashes when they occur.

[62] Acceleration was used in fewer than two per cent of conflicts to avoid potential crashes. Braking or steering are better and more common evasive actions employed by truck drivers.

[63] Trucks are 20 to 30 times heavier than cars and require 20 to 40 per cent longer stopping distances.

[64] Studies reviewed by Dr. Saccomanno were either positive or neutral regarding the safety implications of speed limiters on trucks.

[65] Julie Cirillo expressed the opinion that speed limiter legislation does not increase safety and in fact decreases safety on the highways travelled by those heavy trucks and can cause dangerous situations to arise.

[66] She stated that "vehicles travelling 10 to 15 mph slower than the mean speed of traffic were much more likely to be involved in accidents than vehicles travelling slightly above the mean speed".

[67] She includes trucks travelling in states where the speed limit is higher as one of her dangerous situations.

[68] She noted that vehicles routinely travel 7 to 10 mph over the speed limit.

[69] She agreed during cross-examination that if a motor vehicle was going faster, the driver must react more quickly if obstacles appear, the driver has less time to react, the distance needed to stop is greater and any injury outcome in a motor vehicle collision will be more severe.

[70] She was not aware of any studies on speed limiters at all let alone a study that shows that speed limiters make speed variance more likely or that accident rates increase.

[71] The trucking industry installed speed limiters in the United States to reduce fuel consumption and not for safety benefits.

[72] The National Highway Traffic Safety Administration in the United States is anti-truck and anti-speed.

[73] They would like to get everyone to drive slower because their goal is to reduce the number of fatalities and if you are going faster and have a motor vehicle collision, then more people will get injured.

[74] "After the fuel crisis in the early 70's, you know, when the speed limit was dropped, they just thought that was the greatest thing since sliced bread" partly because "the number of fatalities dropped".

[75] Gene Michaud gave a number of examples of what he perceived to be increased dangers occasioned by speed limiters:

[76] Before the speed limiter legislation, he was driving near Brazil, Indiana. The highway was grooved and wavy. He saw a passenger vehicle in the lane to the left of him having trouble maintaining control on the wavy pavement. The passenger vehicle was just in front of his rear axles. He accelerated to get away from the passenger vehicle. Ultimately the driver of the passenger vehicle lost control of the vehicle and it spun out onto the right shoulder of the highway. If Mr. Michaud had not been able to accelerate when he did, he did not believe he would have been able to get out of the way.

[77] At any point on a limited access highway, such as the 400 series highways in Ontario, when the speed of trucks was limited, and a number of trucks were entering or exiting the highway at the same time, such as occurred where there was a service centre off the highway, dangerous situations could occur. Because the speed of trucks was regulated, three or four or more trucks could often follow one another closely in the far right lane. If another truck was travelling in the lane to the left of that lane and needed to enter that lane to exit at the service centre, it had to slow down to allow the "convoy" to pass by so that it could exit. This truck would create a problem in its own lane and another problem when it moved into the right lane. Passenger vehicle drivers were notoriously impatient and wanted to get around this kind of situation, forcing difficulties on these four lane highways.

[78] Similarly, when a number of trucks were entering the highway from such service centres, they also created a "convoy" in the right lane when their speed was limited, making it difficult for passenger vehicles to enter that lane in order to exit the highway. Impatience, once again, created difficulties and dangerous situations which trucks could not accelerate away from.

[79] Passenger vehicles often got stuck between transport trucks in these "convoys". This added to the danger since drivers of passenger vehicles were most often not comfortable being closed in by transport trucks and often did "unusual" things to get out of those circumstances. Those unusual things were most often dangerous.

[80] When Mr. Michaud was driving in the right lane and saw vehicles about to enter the highway to merge with the traffic flow, he would move over one lane to the left when the opportunity allowed. With a speed limiter activated, he invariably slowed traffic behind him in that lane, causing traffic to bunch up. When traffic bunched up, in his experience, the opportunities for accidents increased. If he did not move over to the left, however, traffic trying to merge could not, particularly if there were a number of trucks travelling at the same limited speed in that lane, which also created dangerous situations. Mr. Michaud saw passenger vehicles trying to enter a 400 series highway in that situation stop rather than merge into the right lane, which creates a very dangerous situation for the vehicle trying to enter and all of the vehicles behind that one.

[81] When transport trucks passed other transport trucks, further dangerous situations could arise. Depending on the size and weight of the load, transport trucks slowed differently when climbing a grade. Because time is of the essence for a commercial carrier, a less heavy truck would move over a lane to the left to pass another transport truck which was slowing him down on that grade. Because his speed was limited, however, it would take him more time to pass the slower transport truck. Oftentimes the pass was not complete once the grade had ended and the trucks then travel at the same 105 km/h speed beside one another. Neither truck would slow down to allow the other to pass or re-enter the right lane, if the pass could not be completed. As a result, traffic was slowed behind them.

[82] Passenger vehicles often travelled much faster than 105 km/h on the 400 series highways. In Mr. Michaud's experience, drivers of passenger vehicles were often impatient and when they were slowed like this, they did irrational things which were dangerous.

[83] Further, in the above-noted situation, when the pass was complete, the driver of the passing transport truck seemed to succumb to the pressure of vehicles lined up behind him and often pulled over to the right more quickly than he should in order to allow traffic to flow more freely; but in doing so, he could cut off the transport truck he was passing or create a tailgating situation which, if any sudden movement was required, was dangerous. These situations did not happen when the speed of transport trucks was not limited.

[84] Mr. Michaud also stated in his affidavit his belief that "the best Speed Limiter is a police officer at the side of the highway with a radar gun".

[85] Michael Lepage expressed his opinion on behalf of Mr. Michaud that the "speed limiter legislation has only a very small effect on total greenhouse gas emissions in the province".

The Fresh Evidence

[86] In March 2012, after the trial concluded, the United States Federal Motor Carrier Safety Administration released a new study entitled Research on the Safety Impacts of Speed Limiter Device Installations on Commercial Motor Vehicles: Phase II (the "Study"). The purpose of the Study was to identify the impacts of implementing speed limiters in commercial vehicle operations with respect to potential reductions in the frequency and severity of crashes.

[87] Dr. Saccomanno reviewed the Study and expressed his opinion in his Supplementary Affidavit that:

33. In my view, this Study has 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.

34. The Study provides a strong empirical counter-argument to the view that limiters increase speed variance and this increased speed variance leads to higher car-truck crash frequency.

[88] The Respondent retained Dr. Steven Johnson, a professor of industrial engineering who specializes in "quality control, operations, research, modelling, human factors, and ergonomics," to respond to the Study and Dr. Saccomanno's assessment of it.

[89] Dr. Johnson had assembled a panel of peer reviewers for the Study. He did not personally conduct the Study's research nor peer review it himself.

[90] In his affidavit, Dr. Johnson stated that the Study's conclusions were "misleading and misrepresents the data from the Study." Dr. Johnson based his concerns on what in his opinion, were statistical improprieties by the Study's authors.

[91] He did not, however, share this conclusion with the Study's authors before the Study was published.

[92] Further, under cross-examination Dr. Johnson repeatedly stated that he was not "criticizing the Study."

[93] In his Supplementary Affidavit, Dr. Saccomanno did note that "the Study may suffer from some methodological and data issues." Nonetheless, he remained of the opinion that those issues were "not serious enough to affect its conclusions in a significant degree." In fact, some of the methodological and data issues would have led the Study to underestimate the positive impact of speed limiters.

[94] In cross-examination, Dr. Saccomanno further explained why he believed that the Study's methodological and data issues did not undermine its ultimate conclusion that speed limiters make driving safer. He believed that the authors of the Study had made reasonable study design choices using engineering logic in light of the data they had available. He disagreed with Dr. Johnson's suggestion that the authors had employed improper statistical tools to analyze their data because there was no evidence to support Dr. Johnson's assertion that the various fleets studied belonged to populations with different variances in their crash rates.

[95] I note here then that the above evidence provides me with a further advantage over the presiding Justice of the Peace.

Analysis of the Alleged Breach of Section 7

[96] I will deal with this as a two-step process.

[97] The first step will be to determine whether the speed limiter law did deprive Mr. Michaud of his security of the person.

[98] If it did, it is then necessary to proceed to the second step and determine whether this was arbitrary and therefore not in accordance with the principles of fundamental justice.

Security of the Person

[99] Counsel for the Appellant argued that the presiding Justice of the Peace erred in reaching the decision that he did on this point by applying the wrong test and further that he also erred in his assessment of the evidence.

[100] I will address these issues in reverse order.

[101] Ms. Cirillo testified that speed differential caused more accidents than simply speeding did.

[102] Even if one accepts her opinion on this, she never offered any evidence that speed limiters cause such speed differential. She conceded that she knew little, if anything about speed limiters.

[103] As a result, her evidence failed to provide any link between speed limiters and the increased dangers described by her.

[104] Even if this were not the case, Ms. Cirillo's evidence, taken together with the other evidence, did not establish on a balance of probabilities that speed differential did cause more accidents than simply speeding did.

[105] As I noted before, Ms. Cirillo agreed that when a motor vehicle is going faster, the driver must react more quickly if obstacles appear, the driver has less time to react, the distance needed to stop is greater and any injury outcome in a motor vehicle collision will be more severe.

[106] She was not prepared to concede however that speeding trucks posed a significant danger on our highways.

[107] I note as well what I found to be her rather flippant comment that "After the fuel crisis in the early 70's, you know, when the speed limit was dropped, they [the National Highway Traffic Safety Administration] just thought that was the greatest thing since sliced bread" partly because "the number of fatalities dropped".

[108] When addressing the fact that the National Highway Traffic Safety Administration did not take the same view that she did, she declared that they were anti-truck and anti-speed. They would like to get everyone to drive slower because their goal is to reduce the number of fatalities and if you are going faster and have a motor vehicle collision, then more people will get injured.

[109] These comments left me with the clear impression that Ms. Cirillo did not attach much value to slowing commercial motor vehicles in order to reduce fatalities and to avoid such situations where more people might get injured.

[110] They also left me with the clear impression that she was quite prepared to summarily dismiss the views of anyone she disagreed with.

[111] These comments were definitely not what I would expect to hear coming from an expert in traffic safety.

[112] Mr. Michaud also failed to offer any evidence that speed limiters endangered his life. He expressed his opinion that speed limiters were the cause of nearly every dangerous situation that existed for trucks on the highway, but he was never able to support those opinions with any established facts.

[113] He blamed speed limiters for trucks bunching up when they were entering 400 series highways. At that time of course, the drivers of these trucks would be attempting to increase the speed of their vehicles until they reached the maximum speed limit. Common sense should make it clear to anyone that the speed limiter should not come into play in this situation.

[114] Mr. Michaud blamed speed limiters for trucks bunching up as they exited 400 series highways. These trucks would of course be slowing down and not travelling at the speed limit either. Again, common sense should make it clear that the speed limiter should not come into play here.

[115] Mr. Michaud also blamed speed limiters for trucks bunching up when they were travelling at the maximum speed along the 400 series highways.

[116] He never did however satisfactorily explain how speed limiters were responsible for all of this.

[117] So he too failed to establish that speed limiters created more dangerous situations for truck drivers like him.

[118] That of course should not be a surprise to anyone in light of the fact that the evidence of Mr. Michaud was accepted by the presiding Justice of the Peace as being observational and that of an experienced professional transport driver only. Everyone agreed that he had no academic or other qualifications that would justify him giving expert evidence with respect to speed limiters.

[119] In that same vein, I make the observation that anyone who has driven on any 400 series highway in Ontario will have observed not only big trucks but all sorts of other motor vehicles bunching up and making it difficult for others to change lanes. These other vehicles do this despite the fact that they are not equipped with speed limiters.

[120] Mr. Michaud blamed speed limiters for creating situations where one large truck would take a long time to pass another large truck on a multi-lane highway thereby holding up other cars behind it. He did not attach any blame for this to the obvious desire of the driver who was overtaking the other vehicle to drive as fast as he could even if that was only two or three km/h faster than the truck ahead of him was going. He did not address the possibility that the truck driver who chose to pass under these circumstances might not be showing a reasonable concern for others using the highway.

[121] Mr. Michaud clearly exhibited the attitude described by Dr. Saccomanno to the effect that many truck drivers are most concerned about minimizing the time they take to deliver their loads.

[122] Mr. Michaud also expressed his opinion that "the best Speed Limiter is a police officer at the side of the highway with a radar gun". It should be evident to anybody that a police officer with a radar gun will only limit the speed of a few vehicles, being those on the same highway at the same time as the police officer is. The speed limiters mandated by section 68.1(1) on the other hand limit the speed of all commercial motor vehicles.

[123] Mr. Michaud did describe one occasion when he accelerated to avoid a dangerous situation. He described only the one occasion. Dr. Saccomanno addressed this very situation when he testified that acceleration was used in fewer than two per cent of conflicts to avoid potential crashes. Braking or steering are better and more common evasive actions employed by truck drivers.

[124] I note also that every dangerous situation described by Mr. Michaud involved someone who was breaking the law.

[125] It is an offence contrary to the Highway Traffic Act to drive a motor vehicle in excess of the speed limit.

[126] It is also an offence to drive a motor vehicle "on a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic thereon except when the slow rate of speed is necessary for safe operation having regard to all of the circumstances."

[127] It is an offence to follow another vehicle too closely.

[128] It is an offence for a commercial motor vehicle to follow within 60 metres of another motor vehicle.

[129] Commercial motor vehicles may not be driven in the left lane of any highway that has three or more lanes for traffic in each direction.

[130] It is an offence to operate a motor vehicle without due care and attention or without reasonable consideration for others using the highway.

[131] I take special note of this careless driving provision because the presiding Justice of the Peace somehow incorporated a variation of it into his decision, concluding that the speed limiter somehow prevented Mr. Michaud from driving with due care and attention and from having "full care and control" of his truck.

[132] With all respect to the presiding Justice of the Peace, that was not the question he had to decide. In addition, it was not a conclusion that was supported by the evidence that was before him.

[133] All of the provisions listed above and many others are part of the Highway Traffic Act along with the provision mandating the use of speed limiters on commercial motor vehicles. All of these provisions combine to create a comprehensive scheme designed to ensure that Ontario's highways are as safe as possible.

[134] The evidence presented in this case failed to establish that the result was otherwise.

[135] To the contrary, the evidence of Dr. Saccomanno, including both the evidence given at trial and the fresh evidence, established that the use of speed limiters does contribute to increased safety on the roads.

[136] In that regard, I have noted the comments of the presiding Justice of the Peace where he said that

there is no research that says 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 effects of speed limiters.

[137] Counsel for the Appellant argued that the presiding Justice of the Peace shifted the burden of proof here. I am not prepared to conclude that he went that far.

[138] I do note however that there was evidence from Dr. Saccomanno at trial to the effect that the use of speed limiters had resulted in increased safety and a decrease in the accident rates.

[139] Later, the fresh evidence of Dr. Saccomanno clearly addressed this very issue.

[140] As I stated earlier, I accepted the evidence of Dr. Saccomanno. I accepted his evidence at trial and his fresh evidence provided for the appeal.

[141] He was highly qualified to express the opinions that he did. He was clear in his evidence. He showed no bias in his evidence. He relied on data that pertained directly to the issues before the court.

[142] His evidence made sense, and I attached significant weight to common sense here.

[143] For the reasons referred to by me above, the same comments could not be made with respect to the witnesses who provided evidence on behalf of Mr. Michaud.

[144] I do note however that even they did not contradict significant portions of Dr. Saccomanno's evidence and in fact sometimes agreed with him.

[145] After considering all of the above, I find that the presiding Justice of the Peace erred in finding that Mr. Michaud had met his onus of proving on a balance of probabilities that requiring truck drivers to have working speed limiters set at 105 km/h deprived Mr. Michaud of his security of the person.

[146] That decision by me should be dispositive of this appeal. I will however also address the issue of arbitrariness, just in case.

Was Section 68.1(1) Arbitrary?

[147] It is not enough for a claimant to prove that legislation deprived him of his security of the person. The claimant must also establish that the deprivation of his security of the person was not in accordance with the principles of fundamental justice. The legislation will not be in accordance with the principles of fundamental justice if it is arbitrary.

[148] The Supreme Court of Canada stated in Bedford that:

Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law's purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person. A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests.

[149] The Court went on to say that:

the root question is whether the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose. This standard is not easily met. The evidence may, as in Morgentaler, show that the effect actually undermines the objective and is therefore "inconsistent" with the objective. Or the evidence may, as in Chaoulli, show that there is simply no connection on the facts between the effect and the objective, and the effect is therefore "unnecessary". Regardless of how the judge describes this lack of connection, the ultimate question remains whether the evidence establishes that the law violates basic norms because there is no connection between its effect and its purpose. This is a matter to be determined on a case-by-case basis, in light of the evidence.

[150] The presiding Justice of the Peace found that the decision to limit the speed of trucks to 105 km/h was an arbitrary decision. He made that finding because the Crown could not answer why the provincial legislature had picked 105 as the cut-off point.

[151] This was an error.

[152] To start with, the presiding Justice of the Peace was asking the wrong question.

[153] The correct question is now stated in the passages from Bedford set out above.

[154] Further however, a rational answer to his own question was there before the presiding Justice of the Peace.

[155] The maximum speed limiter setting of 105 km/h is 5 km/h more than the maximum speed permitted for any motor vehicle on a highway in Ontario.

[156] In other words, 105 km/h represents the maximum possible speed limit plus a five per cent margin of error.

[157] There is nothing arbitrary about that.

[158] There are other reasons why the legislation was not arbitrary.

[159] Driving any motor vehicle on a highway in Ontario is a highly regulated activity. Driving a commercial motor vehicle on a highway is regulated even more. Drivers participate voluntarily in this regulated activity knowing that failure to comply with the regulations could lead to penalties that include restrictions on their driving or even outright prohibition.

[160] The provincial legislature has enacted laws establishing maximum speed limits, laws against driving too slow, laws to keep trucks at least 60 metres apart and to keep them out of the left lane where three or more lanes exist. These are laws that are meant to regulate speed and attempt to minimize speed differential and to avoid bunched up convoys of trucks.

[161] These laws were enacted to, amongst other things, ensure that the province's highways are as safe as possible for the people travelling on them.

[162] These laws are not arbitrary.

[163] Neither is the law requiring speed limiters.

[164] Further, extracts from Hansard which were filed make it clear that the speed limiter legislation was introduced for two reasons.

[165] One reason was to improve air quality by reducing truck emissions.

[166] Michael Lepage expressed his opinion on behalf of Mr. Michaud that the "speed limiter legislation has only a very small effect on total greenhouse gas emissions in the province". In that regard even he did not say that it had no effect.

[167] Hansard made it clear that it was recognized in the provincial legislature that the use of speed limiters was only one small step towards the eventual goal but that enough small steps could lead there.

[168] In that regard speed limiters were endorsed by some members of the trucking industry, and by Pollution Probe, the Lung Association and Fleet Challenge.

[169] Even the presiding Justice of the Peace acknowledged that the legislation may have achieved this goal when he said:

Both sides provided two very different estimates with respect to how many metric tonnes of greenhouse gases might be eliminated with the legislation, but a reduction is still a reduction and so the government may have actually achieved this goal however disparate the numbers are.

[170] The second reason for this law was that the legislature believed that forcing truck drivers to slow down to a reasonable speed would improve road safety.

[171] This was a view endorsed by a number of safety organizations.

[172] It was a view that led to similar legislation in other countries and in the E.U.

[173] It was a view that was also consistent with common sense. Greater speeds create a greater risk of accidents including more serious accidents. When one combines that greater speed with the largest vehicles on the road, there is even more risk.

[174] The presiding Justice of the Peace clearly recognized this when he stated that "all agreed that speed is a factor in severity and affects response times and may contribute to frequency of accidents."

[175] After considering all of these facts, I find that the decision to implement this particular speed limiter law was not an arbitrary decision. It did not violate the principles of fundamental justice.

Conclusion

[176] The appeal is allowed.

[177] The decision below is set aside.

[178] In light of the death of Mr. Michaud, there is nothing to be accomplished by finding him guilty and entering a conviction. Instead, the proceedings will be stayed.

Released: May 15, 2014

Signed: "Justice D.A. Harris"

Justice D.A. Harris