Court File and Parties

Ontario Court of Justice

Date: September 4, 2015

Court File Nos.: 2860-1723463Z & 2860-1723480z

Between:

Regional Municipality of Durham

— and —

D. Crupi & Sons Ltd.

Before: Justice of the Peace M. Coopersmith

Heard on: January 20, 2015 and June 16, 2015

Reasons for Judgment released on: September 4, 2015

Counsel

Y. Pejman — counsel for the prosecution

T. Walton — agent for the defendant D. Crupi & Sons Ltd.

JUSTICE OF THE PEACE COOPERSMITH:

[1] Charges and Statutory Framework

[1] On December 18, 2013, D. Crupi & Sons Ltd. was charged pursuant to Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, ["POA"] with:

1. "Drive motor vehicle, no currently validated permit" contrary to subclause 7(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ["HTA"]; and

2. "Overweight vehicle – violate permit 6400 kg.", contrary to subsection 121(1) of the HTA.

These charges were brought pursuant to subsection 207(1) of the HTA, which provides for the owner of a vehicle to be charged with and convicted of an offence unless its vehicle was in the possession of another person without its consent.

I. BACKGROUND AND ISSUES

[2] Transportation Enforcement Officer James Gray provided evidence on behalf of the Ministry of Transportation ["MTO"] on January 20, 2015. On June 16, 2015, Sam Di Filippo, Human Resources Manager for D. Crupi & Sons Ltd., testified for the defendant corporation, following which submissions were provided by the prosecutor, Ms. Pejman, and by the defence agent, Mr. Walton.

[3] The two main issues to be determined are:

1. Was the defendant's commercial motor vehicle being driven on a highway without a currently validated permit, contrary to s.7(1)(a) of the HTA, and, if so, is the defence of officially induced error of law available to and made out by the defendant?

2. Was the defendant's commercial motor vehicle overweight by 6400 kilograms, contrary to s. 121(1) of the HTA, or was it exempt from the weight provisions of the HTA?

[4] For the reasons that follow, I will be staying one of the charges and dismissing the other charge against D. Crupi & Sons Ltd.

II. SUMMARY OF EVIDENCE

a.) Evidence of Transportation Enforcement Officer James Gray

[5] At noon on December 18, 2013, Transportation Enforcement Officer James Gray was on duty at the Whitby Truck Inspection Station ["TIS"], which is located eastbound on Highway 401 in the Regional Municipality of Durham. The lights on the highway were flashing to direct trucks to proceed into the TIS. Officer Gray greeted the driver of a three-axle straight truck, who provided Officer Gray with his driver's licence and the vehicle's CVOR certificate, registration, insurance and trip log. This commercial motor vehicle bore plate 8977WY and showed a registered gross weight of 8000 kg.

[6] Officer Gray introduced several Ministry of Transportation certified documents as exhibits:

Exhibit 1 - Vehicle Record Profile for plate 8977WY, showing the registered plate owner as D. Crupi & Sons Ltd. and a registered gross weight of 8000 kg for this 2009 blue, three-axle, straight, Sterling commercial motor vehicle. The expiry date was April 30, 2013.

Exhibit 2 – Carrier Record Profile – CVOR # 027-821-268 for operator D. Crupi & Sons Ltd.

Exhibit 3 – Driver's licence for Angelo Derocchis, showing a Class "D" licence.

[7] The commercial motor vehicle was placed on the weigh scales and Exhibit 4 shows the printout total weight of 14400 kg. Exhibit 5 is the "Certificate of Calibration – Vehicle Scale" from Active Scale Manufacturing Inc., dated April 19, 2013, with the comment "Scale weighs Good".

[8] Officer Gray testified that the validation sticker on the vehicle's front licence plate had expired April 2013. He further described the commercial motor vehicle as having mounting brackets on the front for a front or side plough attachment and having a salt spreader attachment on the back. The truck salter was empty and there were no plough blades attached to the vehicle. It was Officer Gray's understanding that the driver was taking the vehicle for repairs.

[9] Officer Gray accepted that road building machines, such as sewer suckers, concrete or cement pumpers, etc., are exempt from the permit provisions under the HTA, but the particular vehicle in question was a snow-clearing vehicle. Furthermore, unlike the defendant's vehicle, most snow clearing machines are plated and equipped as such.

[10] Officer Gray also agreed that s.114(3) of the HTA exempts some vehicles from the weight provisions of Part VIII of that Act. However, such exception applies only when the vehicle is equipped with a snow clearing device. The defendant's vehicle came through the Whitby TIS with mounting brackets, but no ploughs attached. In the absence of any such snow clearing device, he issues a Part I Offence Notice.

b.) Evidence of Mr. Sam Di Filippo, for D. Crupi & Sons Ltd.

[11] Mr. Sam Di Filippo is the Human Resources Manager for D. Crupi & Sons Ltd., a family company that has been in business for 65 years. It operates in the construction and snow ploughing industries and has contracts with several municipalities for clearing snow from municipal roads.

[12] The impugned motor vehicle was part of the equipment for a seven-year contract the company had with the City of Toronto, covering the winter months from 2008 to 2015. The vehicle's sole purpose was for ploughing and clearing snow and salting the roadways to prevent ice build-up. Under the contract, each vehicle had to be parked at a specific City Depot, ready to be put into snow removal service when called upon by the municipality. This vehicle was assigned to cover a southern portion of Scarborough, roughly bounded by Markham Road in the east, Steeles Avenue on the north, Ellesmere on the south and Victoria Park on the west.

[13] The truck was having engine/exhaust system problems and required servicing. Under the contract, there are penalties and charges against the company if the vehicle is out of commission for any period of time, as it would not be able to fulfil its contractual obligations. Hence, the truck was being driven along Highway 401 to Durham Mack in Oshawa for repairs. There was a repair facility in the part of Scarborough covered by the contract and closer to the Depot where the vehicle had to be parked. However, this closer repair facility needed three days' response time, whereas Durham Mack had a three- to four-hour turn-around time. In order to get the vehicle back in good repair so that it could continue to service the contract, and to avoid financial penalties, D. Crupi & Sons Ltd. decided to drive the vehicle to be repaired in Oshawa. Since it could not be serviced with ploughs attached, the front and side wing ploughs were removed prior to setting out on the highway.

[14] The vehicle had been plated prior to 2012; however, the plates expired on April 30, 2013. The defendant left the expired plates on the truck. The defendant understood that since the vehicle was used to clear snow, it was exempt under the weight provisions of the HTA. Hence, at 'zero' weight, it did not require a plate. The defendant had visited and made inquiries at a MTO office counter and, as a result of such inquiries, received information that no registration or permit could be given for a 'zero' weight class vehicle. Furthermore, Mr. Di Filippo referenced s.121(1) of the HTA, which provides that the fee for the permit is based upon the gross vehicle weight – given the 'zero' weight class designation, the Ministry would not give the defendant a permit for this vehicle.

[15] Subsequently, the defendant made further inquiries to verify this information with the MTO. On January 26, 2012, Mr. Alf Brown, Head, Carrier Enforcement Liaison, Dangerous Goods Coordinator with the Ministry of Transportation, emailed Mr. Di Filippo under the subject heading "RE: Snow Plough registration exemption". Mr. Brown referenced s. 114(3) of the HTA, exempting vehicles equipped with a snow clearing device. Consequently, the defendant understood this as confirming the vehicle can be used without a validated permit.

[16] There was no reference made in the contract with the City of Toronto or in law that the truck could not travel from one municipality to another. Furthermore, there was no dispute – the impugned vehicle was not being used to clear snow that day, as it was being driven to Durham Mack for engine repairs.

III. SUBMISSIONS, FINDINGS AND ANALYSIS

1.) Was the defendant's commercial motor vehicle being driven on a highway without a currently validated permit, contrary to s.7(1)(a) of the HTA and, if so, is the defence of officially induced error of law available to and made out by the defendant?

(i.) Was the defendant's vehicle in contravention of s.7(1)(a) of the HTA?

[17] D. Crupi & Sons Ltd. has been charged under s. 7(1)(a) of the HTA, which reads:

7. (1) Permit, etc. required – No person shall drive a motor vehicle on a highway unless,

(a) there exists a currently validated permit for the vehicle;

[18] The evidence is consistent and unequivocal. The defendant's motor vehicle was being driven eastbound on Highway 401 in the Regional Municipality of Durham on December 18, 2013. The permit for the impugned motor vehicle had expired on April 30, 2013, over seven months prior to the December 18, 2013 stop at the Whitby TIS. Therefore, I am satisfied that all of the elements of s.7(1)(a) have been proven beyond a reasonable doubt.

(ii.) Determining the category of an offence under s.7(1)(a) of the HTA as a strict liability offence

[19] Once it has been proven that the offence of driving its vehicle on a highway without having a currently validated permit has been committed, the defendant then may bring a defence on a balance of probabilities. In order to determine the defences available to the defendant, one must determine into which of the three categories set out in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, this offence fits.

[20] Justice Dickson, writing for the court states:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. 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 will be primary considerations in determining whether the offence falls into the third category.

[21] As stated above, public welfare offences or regulatory offences are prima facie strict liability offences. Moreover, LeBel J., writing for the Supreme Court of Canada in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] 1 S.C.R. 420, at paragraph 17 writes:

Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself.

[22] I have looked at the four factors set out by Justice Dickson, above, starting with the overall regulatory pattern of the legislation. The HTA is legislation aimed at public safety on our highways, including regulating or licencing the users, vehicle owners and vehicles using such roads.

[23] The subject matter of section 7(1)(a) speaks more particularly to ownership of motor vehicles on our highways. Although R. v. Joncas, 2007 NBCA 28, [2007] N.B.J. No. 152; 49 M.V.R. (5th) 100 is a decision out of the New Brunswick Court of Appeal, I am satisfied that the purpose for registering vehicles explained by Justice Drapeau applies here in Ontario. As stated at paragraph 29:

The purpose of vehicle registration under the Act is self-evident. It is explained in the following terms in M.D. Segal, Manual of Motor Vehicle Law, 3rd ed. Vol. 1, looseleaf, (Toronto: Carswell, 1982) at p. 2-10.2: "it is a matter of prime importance that the law respecting the registration of motor vehicles be strictly observed. The number on a registration plate of a car proclaims to the world its ownership, and is the first essential step towards the enforcement of laws controlling the operation of motor vehicles on the public highways: Ritchie v. Rayner, [1933] 5 M.P.R. 568 (P.E.I.C.A.), affirmed, [1933] 4 D.L.R. 808 (S.C.C.)." The general rule is that all motor vehicles must be registered under Part II of the Act (see s. 21(1)). The Act provides, in s. 21(1)(b), for an exception in respect of "implements of husbandry" that are only incidentally operated upon a highway.

[24] In determining the potential penalty for an offence under s.7(1)(a) of the HTA commenced under Part I of the POA, the general penalty provision in section 12 of the POA applies and no more than $1000 may be imposed.

12. (1) Penalty – Where the penalty prescribed for an offence includes a fine of more than $1,000 or imprisonment and a proceeding is commenced under this Part, the provision for fine or imprisonment does not apply and in lieu thereof the offence is punishable by a fine of not more than the maximum fine prescribed for the offence or $1,000, whichever is the lesser.

[25] Finally, in reviewing the precision of the language, there is no language which provides clear legislative intent to make the impugned legislation an absolute liability offence. And I am satisfied that words which may be found in mens rea offences such as "knowingly" or "intentionally" or "recklessly" are absent.

[26] Regulatory offences are deemed strict liability in all but exceptional cases. [See R. v. Nickel City Transport (Sudbury) Ltd., 14 O.R. (3d) 115, 82 C.C.C. (3d) 541 (C.A.)]. Therefore, given the presumption of regulatory offences being strict liability offences, given absolute liability offences having become the exception, requiring clear proof of legislative intent, given the absence of mens rea wording and looking at my analysis of the four factors above, I am satisfied that the offence under s.7(1)(a) of the HTA is a strict liability offence.

(iii.) Defences available to the defendant

[27] Since the prosecution has proven its case beyond a reasonable doubt, it turns to the defendant to show due diligence or any other defence available to it in dealing with a strict liability offence. In accordance with section 80 of the POA, D. Crupi and Sons Ltd. may rely upon whatever common law defences may be appropriate in the circumstances:

80. Common law defences – Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act.

(iv.) Submissions of the parties on s.7(1)(a) of the HTA

[28] The defendant company attempted to register the vehicle. However, the MTO informed the corporation that it could not register a 'zero' weight class vehicle. On further follow up by the defendant, the Ministry confirmed this exemption. Based on these investigations made by the defendant, the ambiguity in the Act and any officially-induced error, the Defence Agent requested his client be acquitted of the permit violation offence under s. 7(1)(a) of the HTA.

[29] Under s.7(1)(a) of the HTA, the Prosecution submits that a motor vehicle driven on a highway requires a currently validated permit. Under s.47(3) of the POA, the burden is on the defendant to prove any exemption prescribed by law that may work in its favour. Since the impugned motor vehicle is not a "road building machine", as it did not have its ploughs attached and Mr. Di Filippo testified it was not such a vehicle, then it is a motor vehicle under the definition section 1(1) of the Act. Hence, it is not exempt from requiring a currently validated permit.

[30] The Prosecutor further submits that this issue does not meet the test of 'officially induced error'. The verbal conversation the defendant had at the MTO office has no context and the defendant has no idea who the person was at the counter that day. The January 26, 2012 email from Mr. Alf Brown at the MTO also is not set into any context. Further, s.114(3) is a weight-related exemption, not a plate-related exemption. Clearly, Provincial Offences Officer James Gray's email to the defendant on February 10, 2014, clarifies that the vehicle is not a road-building machine, so it requires plates. He also writes that the City of Toronto contract would not apply when the vehicle is outside the boundaries of the contract and the absence of a validated plate "would place any contract with a municipality null and void". He further stated, "The defendant's vehicle was inspected as a regular commercial motor vehicle since no exemptions applied to the vehicle at the time of the stop and location of the inspection." Hence, the defendant required a permit for its vehicle, it did not have one, the defence of officially induced error has not been made out and, hence, the defendant should be convicted of this charge under s.7(1)(a) of the HTA.

[31] The Defence Agent advised that Officer James Gray's email opinion post-dated the offence and is the same opinion he had at the time he laid the charges. Hence, no weight should be given to this email. Furthermore, the defence argues that in order for the defendant to satisfy its contract with the City of Toronto, it needed to maintain the equipment in good running order. It made no sense not to require a plate while the vehicle was doing snow clearing, but then required a plate when it was being repaired. The Prosecutor advised that the vehicle had to be plated at all times, as long as it is a motor vehicle. Any exemption is for the weight, not the plate. She indicated that she had read the contract in its entirety and nowhere does it reference repairs as an activity under that contract. And with no evidence of what the repairs were, there is no nexus to the contract. Defence Agent responded that the vehicles under the contract need annual safety inspection stickers, so they need to be kept in a proper state of repair. As for snow clearing equipment, this vehicle had a salter on it.

[32] The Prosecutor advised that had the ploughs been left on the vehicle, it is likely that the charges would not have been laid. The ploughs could have been left on the vehicle and removed at the repair shop. This earlier removal of the ploughs took it outside the definition of a road building machine and, hence, the motor vehicle required a permit. When I asked for clarification on the jurisdictional area of travel of the vehicle vis-à-vis the boundaries circumscribed in the contract, the Prosecutor advised that, "Had the ploughs been on and this vehicle was indeed a vehicle that was going to fulfil responsibilities under this particular contract, was being repaired to meet the obligations of the contract, it could have very well operated outside, so long as the repair shop was in close proximity or had some nexus to the contract itself." To show such a nexus, it was the Prosecutor's position that the driver of the vehicle would have to carry around a copy of the very large contract between the defendant corporation and the City of Toronto.

(v.) Officially induced error of law

[33] As stated by Lacourciere J.A., writing for the Ontario Court of Appeal in R. v. Cancoil Thermal Corp., [1986] O.J. No. 290:

But, although it may at times overlap with the defence of due diligence, the defence of "officially induced error of law" is separate and distinct and can be asserted, in the same way as other defences.

[34] I have determined that an offence under s.7(1)(a) of the HTA, drive motor vehicle, no currently validated permit, is one of strict liability. In the event I am in error and it is assumed to be an absolute liability offence, I am satisfied that the excuse of officially induced error remains available to the defendant. [See, e.g. Lévis (City), supra, at para.22.] In R. v. Bauman, [1994] O.J. No. 4475; 18 O.R. (3d) 772 (Ont. Ct. Prov. Div.), Justice Sparrow found "that officially induced error applies to the by-law in question, regardless of its categorization." At paragraph 29, she writes:

In my view, although regulations may cover simple acts, members of the public may seek information or advice and it is reasonable to provide a defence if they are misled by government authorities, regardless of the absolute versus strict liability categorization of the offence. While, as stated in R. v. Cancoil, supra, at p. 199, the defences of officially induced error and due diligence "may at time overlap", they are separate and distinct, with different rationales and implications.

[35] This defence of officially induced error of law may seem counterintuitive in light of section 81 of the POA, which reads:

81. Ignorance of the law – Ignorance of the law by a person who commits an offence is not an excuse for committing the offence.

[36] However, it is explained at paragraph 22 of Lévis (City), supra, where LeBel J. reaffirms this defence on behalf of the Supreme Court of Canada:

This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, [1980] 2 S.C.R. 356; Pontes). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in Jorgensen (R. v. Jorgensen, [1995] 4 S.C.R. 55), by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed.

[37] In his minority opinion in R. v. Jorgensen, [1995] 4 S.C.R. 55, at paragraphs 25 and 26, then Chief Justice Lamer explains:

Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.

As complexity of regulation is linked to the justification for this excuse, it is predictable that it will arise most often in the realm of regulatory offences. …

[38] Lamer C.J. established six elements or steps the defendant must prove in order to establish the defence of officially induced error of law. At paragraph 28 of Jorgensen, supra, he begins:

The first step in raising an officially induced error of law argument will be to determine that the error was in fact one of law or of mixed law and fact. Of course, if the error is purely one of fact, this argument will be unnecessary. Unlike Professor Barton, I do not agree that officially induced error should be used to eradicate the distinction between mistakes of fact and mistakes of law. This distinction is important for all the reasons that I believe the principle that ignorance of the law does not excuse must stand firm. Distinguishing between mistakes of fact and those of law remains conceptually important. Mistakes of law will only be exculpatory in narrowly defined circumstances.

Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences of her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible.

The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official. One primary objective of this doctrine is to prevent the obvious injustice which O Hearn Co. Ct. J. noted -- the state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other. In general, therefore, government officials who are involved in the administration of the law in question will be considered appropriate officials. I do not wish to establish a closed list of officials whose erroneous advice may be considered exculpatory. The measure proposed by O Hearn Co. Ct. J. is persuasive. That is, the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. Therefore, the Motor Vehicle Registrar will be an appropriate person to give advice about driving offences, both federal and provincial. The determination of whether the official was an appropriate one to seek advice from is to be determined in the circumstances of each case.

Once an accused has established that he sought advice from an appropriate official, he must demonstrate that the advice was reasonable in the circumstances. In most instances, this criterion will not be difficult to meet. As an individual relying on advice has less knowledge of the law than the official in question, the individual must not be required to assess reasonableness at a high threshold. It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable.

The advice obtained must also have been erroneous. This fact, however, does not need to be demonstrated by the accused. In proving the elements of the offence, the Crown will have already established what the correct law is, from which the existence of error can be deduced. Nonetheless, it is important to note that when no erroneous advice has been given, as in MacDougall, supra, this excuse cannot operate.

Finally, to benefit from this excuse, the accused must demonstrate reliance on the official advice. This can be shown, for example, by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.

In summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in her actions. Accordingly, none of the four justifications for the rule that ignorance of the law does not excuse which Stuart outlined is undermined by this defence. There is no evidentiary problem. The accused, who is the only one capable of bringing this evidence, is solely responsible for it. Ignorance of the law is not encouraged because informing oneself about the law is a necessary element of the excuse. Each person is not a law unto himself because this excuse does not affect culpability. Ignorance of the law remains blameworthy in and of itself. In these specific instances, however, the blame is, in a sense, shared with the state official who gave the erroneous advice.

[39] Finally, Lamer C.J. adds the following procedural considerations, at paragraphs 37 and 38:

As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses rather than justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed to the actor. (See R. v. Mack, [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment, the accused has done nothing to entitle him to an acquittal, but the state has done something which disentitles it to a conviction (Mack, at p. 975). Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.

[40] I have already determined that D. Crupi and Sons Ltd. committed an error of law when it contravened s.7(1)(a) of the HTA, as the permit for the impugned motor vehicle had expired on April 30, 2013 and the vehicle was being driven on Highway 401 on December 18, 2013.

[41] In the second step set out by Lamer C.J., the defendant must demonstrate that he considered the legal consequences of his actions. I am satisfied that the defendant has been in business for sixty-five years and is well aware of running a business in which commercial motor vehicles are employed. I also find the defendant understands the need to have ownership of its vehicles in good order. In fact, I accept the evidence of Mr. Di Filippo that the defendant attended at the counter of a MTO office in an attempt to renew the permit for its vehicle, in order to avoid non-compliance with the HTA. There, he was told that no registration or permit could be given for a 'zero' weight class vehicle.

[42] Step three requires that the advice obtained came from an appropriate official. Mr. Di Filippo could not say who gave the defendant the advice at the MTO counter. Nonetheless, the defendant took further actions to confirm the veracity of this information. Mr. Di Filippo contacted Mr. Alf Brown at the MTO. It is not difficult to find, on the facts before me, that it is reasonable for the defendant to consider Mr. Brown, as Head, Carrier Enforcement Liaison with the Ministry, to be an official with knowledge and advice in the law in question. In his email of January 26, 2012, Mr. Brown speaks clearly to the subject of "Snow Plough registration exemption" and states, "There is an exemption found in the Highway Traffic Act S. 114(3)".

[43] In the fourth step, determining that in the circumstances the advice was reasonable, in most cases, is not difficult to accomplish. As stated by Lamer C.J. in Jorgensen, supra, at para. 33, "As an individual relying on advice has less knowledge of the law than the official in question, the individual must not be required to assess reasonableness at a high threshold. It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable." I find that this defendant seeking to rely upon the defence of officially induced error of law is not in the same position as just any responsible citizen. This family company has been in business for sixty-five years operating commercial motor vehicles. I believe this experience in the industry led it to go beyond the information it had been given at the MTO counter. I find that the defendant has demonstrated that, in the circumstances, Mr. Brown's advice on "Snow Plough registration exemption" was reasonable.

[44] This brings me to step five, where I must determine whether, on a balance of probabilities, the advice provided by Mr. Brown was erroneous. This is not in dispute. Subsection 114(3) of the HTA is found in Part VIII of that Act and that Part deals with 'weight' not 'registration' of motor vehicles. However, Mr. Brown's email does not present subsection 114(3) within the proper context of weight exemption. Instead, he erroneously refers to the exemption under s.114(3) in speaking to the subject of "Snow Plough registration exemption" [Emphasis added].

[45] Finally, in the sixth and final step of my analysis I assess the overall reasonableness of the defendant's reliance on the advice provided by the MTO and Mr. Brown in committing the offence. On this point, Lacourciere J.A., writing for the Court of Appeal in Cancoil Thermal Corp., supra, elaborates:

In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.

[46] At first, the defendant was told at the MTO counter that the MTO would not issue a registration renewal for the impugned motor vehicle because it was 'zero' weight class. The defendant decided not to rely solely on this information. In response to the defendant's further queries, Mr. Brown, Head, Carrier Enforcement Liaison at the Ministry of Transportation, clearly and concisely provided his erroneous opinion on the law in the matter. And for the second time, the defendant was told it was exempt from registering its motor vehicle. Only after taking all of these actions did the defendant then drive the commercial motor vehicle on a highway with no currently validated permit. In these circumstances, I find that the defendant's reliance on this erroneous legal opinion provided by the MTO was reasonable.

[47] In summary, for all of the reasons I have provided, the defence of officially induced error of law clearly has been proven on a balance of probabilities and the offence against D. Crupi & Sons Ltd., of driving the impugned motor vehicle on Highway 401 in Durham without currently validated permit, contrary to s.7(1)(a) of the HTA, is stayed.

2.) Was the defendant's commercial motor vehicle overweight by 6400 kilograms, contrary to s. 121(1) of the HTA, or was it exempt from the weight provisions of the HTA?

(i.) Was the defendant's vehicle overweight, contrary to s.121(1) of the HTA?

[48] D. Crupi & Sons Ltd. has been charged under s.121(1) of the HTA:

121. (1) Operating within permitted weight – No vehicle or combination of vehicles having a permit issued in accordance with section 7 of this Act, the fee for which is based upon gross vehicle weight, shall be operated on any highway where the gross vehicle weight exceeds that for which the permit was issued.

[49] The evidence is unchallenged. On December 18, 2013, at the Whitby TIS, the defendant's truck weighed 14,400 kg. The expired registration and the Vehicle Record Profile for this commercial motor vehicle showed a registered gross vehicle weight of 8,000 kg. Hence, on December 18, 2013, the defendant's vehicle exceeded this gross vehicle weight by 6,800 kg. This would appear to put the vehicle in contravention of s.121(1) of the HTA as it was being driven along Highway 401 for repairs in Durham.

(ii.) Submissions of the parties on s.121(1) of the HTA

[50] The Defence Agent submits that the dispute surrounds the make-up of the impugned vehicle. It did not have a plough attached as it drove outside the boundaries of the snow clearing obligations under the contract with the City of Toronto, for engine repairs in Durham. However, it did have snow clearing equipment in the form of a salter on the vehicle. Hence, the defendant understood that s.114(3) of the HTA exempted the vehicle from the weight provisions of the HTA. He has asked the Court to dismiss the overweight vehicle charge under s.121(1) of that Act.

[51] The Prosecution argues that under s.121(1) of the HTA, the impugned vehicle had a register weight of 8000 kg. on its expired registration with the Ministry. On the scales at the Whitby TIS, it weighed 14,400 kg., making it 6800 kg. overweight. Under s. 47(3) of the POA, the burden rests with the defendant to show any exemption that may work in its favour. S.114(3) exempts vehicles from the weight provisions of the HTA that are "operated by or on behalf of a municipality or other authority having jurisdiction over highways" or "when the vehicle or machine is equipped with a snow clearing device". The prosecution submits that neither of these two criteria has been met. Firstly, the defendant's motor vehicle was not being operated on behalf of the City of Toronto at the time of this incident, but was on its way to being repaired in the Regional Municipality of Durham, which is outside the boundaries in Scarborough set out in the contract. She indicated that she had read the contract in its entirety and nowhere does it reference repairs as a task under that contract. And with no evidence of what the repairs were, there is no nexus to the contract. Secondly, the vehicle was not equipped with a snow clearing device, as its ploughs had been removed in order to take it to be repaired. The Prosecutor also submits that the purpose of the exemption is to serve vehicles operated on behalf of municipalities, to make it convenient for them to go into the municipality and do the job and fulfil and honour the contract. It does not allow the corporation to go to other municipalities and be exempt from weight charges. In other words, it was not being "operated by or on behalf of a municipality or other authority having jurisdiction over highways", as required under the s.114(3) exemption. Since the s.114 exemption did not apply to the defendant's vehicle at the location, time and date of the stop and given the make-up of the vehicle, s.121(1) of the HTA has been proven and the defendant should be convicted.

[52] The defence Agent responded that there are financial penalties imposed by the City of Toronto under the contract for the defendant not having its vehicles available to be called out for snow removal as may be required. Also, the vehicles under the contract need annual safety inspection stickers, so they need to be kept in a proper state of repair. It is incumbent upon the defendant to have its commercial motor vehicles inspected and in proper operating order as may be required for permits and licences required under the HTA. As for snow clearing equipment, this vehicle had a salter on it.

(iii.) Is the impugned commercial motor vehicle exempt from the weight restrictions of the HTA?

[53] Sections 114 through 127 and Tables 1 through 5 make up Part VIII of the HTA. The Part is entitled "Weight" and sets out maximum allowable weights and exemptions to these weights for vehicles operating on our highways.

[54] Subsection 114(3) of the HTA reads:

114. (3) Application of Part – This Part does not apply to over-dimensional farm vehicles or to motor vehicles or to road building machines operated by or on behalf of a municipality or other authority having jurisdiction over highways when the vehicle or machine is equipped with a snow clearing device.

[55] The defendant is claiming a weight exemption under s.114(3) of the HTA. Hence, in accordance with subsection 47(3) of the POA, the burden of proving such exception is on the defendant. Subs. 47(3) provides:

47. (3) Burden of proving exception, etc. – The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[56] I cannot agree with the prosecutor that taking the truck for repairs on December 18, 2013 was not an activity under the snow clearing contract between the City of Toronto and D. Crupi & Sons Ltd. Having read the contract, I find that the defendant's vehicle, indeed, was being driven under a term of that contract. In addition to requiring the requisite inspections and repairs for permits and licenses required by law [See SS.38 – Notices, Permits and License], Section SS.54-010 – Equipment reads in part:

The Successful Bidder shall supply and maintain in good working order during the time limits of the Contract; such trucks and spreaders as are called for in the "Price Schedule".

[57] There is no contradictory evidence; the impugned commercial motor vehicle is one of the defendant's trucks being used under the contract between the defendant and the City of Toronto. It was being taken to Durham Mack for repairs, to ensure it was "maintain[ed] in good working order during the time limits of the Contract". Nowhere in the contract, nor elsewhere in law, am I able to find that the impugned truck is prohibited from driving outside the geographical boundaries of the contract. Hence, this trip to Durham Mack for repairs is an activity that is captured under a term of the contract and the vehicle was being operated by the defendant on behalf of the City of Toronto.

[58] The prosecutor further submits that the defendant's motor vehicle was not equipped with a snow clearing device, as the ploughs had been removed in order to have repairs done. She advised the court that if the ploughs had been left on, then the charges likely would not have been laid. This argument defies logic. In essence, Ms. Pejman is saying that had the vehicle weighed more, it could have been driven along Highway 401 from Toronto into the Regional Municipality of Durham and the charges likely would not have been laid. I cannot accept the prosecutor's rationale. The vehicle still had a salter attached and, applying common sense, I accept the defendant's submissions that the salter is a piece of snow clearing equipment. Hence, I find that the vehicle was within the realm of one which "is equipped with a snow clearing device".

[59] Consequently, on a balance of probabilities, I am satisfied that the defendant's vehicle is one which is intended to be captured by the exemption to weight contained in s. 114(3) of the HTA. This overweight charge against D. Crupi & Sons Ltd., pursuant to s.121(1) of the HTA, is dismissed.

IV. CONCLUSIONS

[60] For the reasons I have provided, I find that the defendant's vehicle was being operated on a highway without a currently validated permit, contrary to s.7(1)(a) of the HTA. Nonetheless, I am also satisfied that there is a successful defence of officially induced error of law. Accordingly, this charge against D. Crupi & Sons Ltd. is stayed.

[61] Also for the reasons given above, I am satisfied that the defendant's commercial motor was over the weight restrictions on its expired registration with the Ministry, contrary to s.121(1) of the HTA. However, I am satisfied that the defendant has proven that the exemption under s.114(3) of the HTA operates in its favour. Therefore, this charge against D. Crupi & Sons Ltd. is dismissed.

Released: September 4, 2015

Signed: "Justice of the Peace M. Coopersmith"