The Corporation of the City of Sault Ste. Marie v. Powley
[Indexed as: Sault Ste. Marie (City) v. Powley]
Ontario Reports Ontario Court of Justice J.G. McMahon J.P. November 19, 2015
128 O.R. (3d) 390 | 2015 ONCJ 712
Case Summary
Criminal law — Provincial offences — Seat belts — Exemptions — Certificate under s. 106(6)(b)(ii) of Highway Traffic Act certifying that person is unable to wear seat belt because of size not being required to stipulate expiry date — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 106(6)(b)(ii).
The defendant was charged with driving without wearing a seat belt, contrary to s. 106(2) of the Highway Traffic Act ("HTA"). He produced a note signed by a doctor stating that he was unable to wear a seat belt because of his size. The note did not stipulate an expiry date. The prosecution took the position that the exception under s. 106(6)(b)(ii) of the HTA only applies where the defendant produces a certificate that stipulates the time period for which it is valid.
Held, the defendant should be acquitted.
While a certificate under s. 106(6)(b)(i) of the HTA certifying that a person is unable to wear a seat belt for medical reasons is required to set out a time period, there is no such requirement under s. 106(6)(b)(ii). A certificate under s. 106(6)(b)(ii) which does not contain an expiry date is valid.
Cases Referred To
- R. v. Bixby, [1987] N.J. No. 454, 7 M.V.R. (2d) 196, 3 W.C.B. (2d) 225 (S.C. (T.D.))
- R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 85 D.L.R. (3d) 161, 21 N.R. 295, 40 C.C.C. (2d) 353, 7 C.E.L.R. 53, 3 C.R. (3d) 30, EYB 1978-147041, 2 W.C.B. 321
- R. v. Wilson, [2014] O.J. No. 1295, 2014 ONCA 212, 317 O.A.C. 314, 63 M.V.R. (6th) 1, 308 C.C.C. (3d) 350, 112 W.C.B. (2d) 158
- Roggie v. Ontario, [2012] O.J. No. 5476, 2012 ONCA 808, 299 O.A.C. 84, 293 C.C.C. (3d) 46, 104 W.C.B. (2d) 1078, 225 A.C.W.S. (3d) 706
- York (Regional Municipality) v. Tassone, [2007] O.J. No. 1109, 2007 ONCA 215, 222 O.A.C. 121, 44 M.V.R. (5th) 81, 73 W.C.B. (2d) 350
Statutes Referred To
- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 106(2), (6), (b)(i), (ii)
- Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 46(4), 47(3)
Rules and Regulations Referred To
Trial
TRIAL on a charge of driving without wearing a seat belt.
Matthew Caputo, for prosecution.
Defendant Roddy Powley, on his own behalf.
Judgment
[1] J.G. MCMAHON J.P.: — It is alleged that on April 12, 2015, Mr. Roddy Powley drove a motor vehicle without wearing his seat belt, contrary to s. 106(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
[2] On November 10, 2015, I dismissed the charge after making a finding that, on the alleged offence date, Mr. Powley met the requirements for the statutory seat belt exemption set out in s. 106(6)(b)(ii) of the HTA. At that time, I promised to deliver written reasons.
[3] The facts in this case were not in dispute. The trial proceeded by way of agreed facts. The guiding purpose of the trial was the search for clarification of the law related to the content and duration of medical certificates that exempt a person from the legal obligation of wearing a seat belt. The prosecution of Mr. Powley was only a secondary consideration. It would seem that, in this municipality, there exists some confusion as to whether such medical certificates expire after a period of time unless renewed for an additional period.
The Facts and Background
[4] On April 12, 2015, Mr. Powley was driving a motor vehicle on a highway in the City of Sault Ste. Marie. He was not wearing his seat belt. When stopped by Sgt. Wreggitt of the Sault Ste. Marie Police Service, Mr. Powley produced a medical note stating that he was unable to wear a seat belt because of his size. According to the agreed statement of facts, Sgt. Wreggitt found the note to be inadequate "... due to the lack of a time period on the doctor's note and the lack of a definitive statement indicating that the Defendant does not need to wear his seatbelt...". As a result, Mr. Powley was issued an offence notice for a contravention of s. 106(2) of the HTA.
[5] Mr. Powley says that seat belts do not fit him. He says that, at one time, he would have weighed in excess of 500 lbs. He would have lost weight, but that weight loss left him with some 90 lbs of excess skin, which would be contributing to his continued inability to wear a seat belt. He explained that doctors have refused to perform the surgery to remove the excess skin because of his history of heart attacks.
[6] Mr. Powley's medical note simply states: "is unable to wear a seat belt properly because of his size". The note was filed as an exhibit. It is handwritten on a prescription pad, dated September 20, 2011, and signed by what appears to be "G Yee, MD".
The Positions of the Prosecution and Defence
[7] The prosecution admitted, in submissions, that Mr. Powley's medical note qualifies as a medical certificate signed by a legally qualified medical practitioner as required by s. 106(6)(b)(ii) of the HTA. However, the prosecution takes the position that Mr. Powley's certificate is not valid because it is too old, having been issued in 2011, and it does not stipulate an expiry date. The prosecution's view is that Mr. Powley's medical certificate and the resulting seat belt exemption must expire after a period of time or be renewed because a person's weight-related size can change in time. It was suggested that one year would be an appropriate duration for a valid certificate.
[8] Mr. Powley relied on his medical certificate to establish that, on the date of the alleged offence, he was exempt from wearing a seat belt pursuant to s. 106(6)(b)(ii) of the HTA. That provision lists "size" as grounds for certifying that a person is unable to wear a seat belt. However, Mr. Powley's greatest desire is for clarification of the law so that he will know precisely what he must do to comply with the law.
[9] Neither the prosecution nor the defence presented any case law in support of their respective positions.
The Legal Questions
[10] The legal analysis required to decide this case calls for answers to three questions:
(a) What are the relevant statutory provisions that govern a seat belt exemption arising from a medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA?
(b) Does a medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA expire after a period of time and must the certificate state a period of time for which it is valid?
(c) What are the mechanics of proving a seat belt exemption arising from a medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA?
The Analysis
(a) What are the relevant statutory provisions that govern a seat belt exemption arising from a medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA?
[11] Subsection 106(2) of the HTA creates a strict liability offence for the driver who fails to wear a complete seat belt assembly: see R. v. Wilson, [2014] O.J. No. 1295, 2014 ONCA 212, 308 C.C.C. (3d) 350. Therefore, to secure a finding of guilt, the prosecution must prove each constituent element of the offence beyond a reasonable doubt: see R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59; R. v. Wilson, supra. In the present case, the prosecution and defence agree that this legal threshold is met. However, there are two additional ways by which a defendant can avoid a guilty verdict.
[12] A defendant can, on a balance of probabilities, establish that he or she took all reasonable steps to avoid the problem act or omission, which is commonly referred to as a defence of due diligence: see R. v. Sault Ste. Marie (City), supra; R. v. Wilson, supra. Mr. Powley did not advance such a defence.
[13] A defendant can also avoid a guilty verdict by proving, on a balance of probabilities, that he or she meets the requirements for one or more of the statutory exemptions set out in s. 106(6) of the HTA or the applicable regulations in R.R.O. 1990, Reg. 613. This is the avenue pursued by Mr. Powley with respect to the exemption authorized by s. 106(6)(b)(ii) of the HTA.
[14] For convenience and for ease of reference, it will be helpful to reproduce the relevant legislative provisions of the HTA and the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"). Subsections 106(2) and 106(6) of the HTA read as follows:
106(2) Use of seat belt assembly by driver — Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat assembly as required by subsection (5).
(6) Exception — Subsections (2) and (3) do not apply to a person,
(a) who is driving a motor vehicle in reverse;
(b) who holds a certificate signed by a legally qualified medical practitioner certifying that the person is,
(i) for the period stated in the certificate, unable for medical reasons to wear a seat belt assembly, or
(ii) because of the person's size, build or other physical characteristic, unable to wear a seat belt assembly; or
(c) who is actually engaged in work which requires him or her to alight from and re-enter the motor vehicle at frequent intervals and the motor vehicle does not travel at a speed exceeding 40 kilometers per hour.
[15] Subsection 47(3) of the POA states that it is the defendant who carries the burden of proving that he or she meets the requirements of a statutory exemption. The provision reads as follows:
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.
[16] These are the legislative provisions that guide the legal analysis.
(b) Does a medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA expire after a period of time and must the certificate state a period of time for which it is valid?
[17] In my view, there are no such legal requirements. A medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA does not have to be of limited duration. The certificate should state the date it was issued, but the certificate does not have to stipulate a time period for which it is valid or an expiry date. These conclusions flow from the results of statutory interpretation.
[18] In Roggie v. Ontario, [2012] O.J. No. 5476, 2012 ONCA 808, 293 C.C.C. (3d) 46, at para. 30, the Ontario Court of Appeal again confirmed the proper approach to statutory interpretation:
The approach to statutory interpretation adopted by the Supreme Court of Canada is well known and summarized in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. No. 27, at para. 21:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
[19] There is no doubt that the legal requirement to wear a seat belt is grounded in the pursuit of greater public safety on our roadways: see York (Regional Municipality) v. Tassone, [2007] O.J. No. 1109, 2007 ONCA 215, at para. 8. However, s. 106(6) of the HTA and the applicable regulations in R.R.O. 1990, Reg. 613 expressly recognize specific circumstances in which a person may be exempt from the legal requirement to wear a seat belt. In R. v. Wilson, at para. 32, the Ontario Court of Appeal described such provisions as excluding persons with specific needs and reasons from prosecution. Two such related, but distinct exemptions, are found at s. 106(6)(b)(i) and (ii) of the HTA.
[20] In my view, taken together, both of these provisions would cover most, if not all, of the physiological reasons why a person may be unable to wear a seat belt. The phrase "medical reasons" in s. 106(6)(b)(i) and the phrase "size, build or other physical characteristic" in s. 106(6)(b)(ii) are quite broad and inclusive when considered in their grammatical and ordinary sense. These words are not defined in the HTA.
[21] Both s. 106(6)(b)(i) and (ii) require that a legally qualified medical practitioner sign the medical certificate, but they target different circumstances. A medical certificate issued pursuant to s. 106(6)(b)(i) must certify that the person is unable to wear a seat belt because of medical reasons for the period stated in the certificate. Therefore, the words of this provision, taken in their grammatical and ordinary sense, convey the requirement of a time-limited seat belt exemption. The seat belt exemption ends when the medical certificate reaches its expiry date. However, I see nothing to prohibit a medical practitioner from issuing a new time-limited certificate if the underlying medical reason subsists past the expiry date of the original certificate.
[22] The wording and design of s. 106(6)(b)(ii) are different. This provision does not refer to medical reasons and does not refer to any time limitation. It speaks of the size, build and physical characteristic of a person as the source of the inability to wear a seat belt. The Legislative Assembly of Ontario could have expressly included a requirement that such a certificate have an expiry date. In my view, it did not do so because the size, build or physical characteristics of a person communicate a state of some permanence, which would dispense with the need for a certificate with an expiry date or one which must be renewed.
[23] It is clear that the Legislative Assembly of Ontario has placed considerable reliance on the expert professional judgment of medical practitioners to determine when medical reasons or physical characteristics render a person unable to wear a seat belt. In my view, this expert professional judgment rightly merits deference.
[24] To implement s. 106(6)(b)(i) and (ii) of the HTA, the medical practitioner must apply his or her expert judgment to make two related decisions. The first decision obviously involves determining whether the person is unable to wear a seat belt. The second involves determining whether the cause is related to either one of the two statutorily recognized categories of reasons: medical reasons and reasons associated to the person's size, build or other physical characteristics. A medical certificate for a seat belt exemption may not issue for any other reason. A medical certificate should sufficiently set out the reasons for which it is issued given the difference between a certificate issued pursuant to s. 106(6)(b)(i) and a certificate issued pursuant to s. 106(6)(b)(ii).
[25] The task of deciding whether a person's condition should be categorized as a medical reason or a physical characteristic may sometimes prove challenging. Physiological factors can combine and interact in innumerable ways in and among individuals. It is easy to imagine how an individual may be burdened by both medical reasons and physical characteristics that contribute to his or her inability to wear a seat belt. How to categorize these reasons for the purposes of s. 106(6)(b)(i) and (ii) fits well within the realm of the professional expertise of the legally qualified medical practitioner.
[26] Mr. Powley's case illustrates how multiple factors can contribute to a person's inability to wear a seat belt and why each case turns on its own facts. Mr. Powley says that he has lost weight, which would point to the potential of an improving outlook with respect to the ability to wear a seat belt. However, that same weight loss would have left him with excess skin that cannot be removed and that is contributing to his inability to wear a seat belt. The prosecution argues that the certificate must be of limited duration because Mr. Powley's weight-related size is subject to change. In contrast, based on the evidence before the court, the medical practitioner categorized Mr. Powley's issue as one of size, which is part of the recognized grounds under s. 106(6)(b)(ii), and issued a medical certificate without an end date. The medical practitioner's certificate would appear to be in compliance with the legislative provisions. Absent evidence to the contrary, the certificate and the expert judgment behind it merit deference.
[27] I must, therefore, reject the prosecution's position that a certificate issued pursuant to s. 106(6)(b)(ii) must be limited in duration and must include an expiry date. I have not been directed to any case law or statutory provisions in support of that argument. More importantly, the prosecution's position runs counter to what I believe are clear statutory provisions that create two categories of medical certificates. The first category of certificates are to be issued for medical reasons pursuant to s. 106(6)(b)(i) and must stipulate an expiry date. The second category of certificates are to be issued on account of physical characteristics pursuant to s. 106(6)(b)(ii) and need not stipulate any expiry date.
[28] I would, however, add that a third option may be available in appropriate circumstances. Cases may arise in which a medical practitioner determines that a s. 106(6)(b)(ii) certificate is appropriate, but that circumstances also call for a certificate that is of limited duration and that must be renewed on a regular basis. Even though I have found that there is no legal requirement for an expiry date on such a certificate, nothing would prevent a medical practitioner from imposing such a limitation, in the exercise of his or her professional judgment. Such a conclusion is consistent with the professional discretion the legislation confers upon medical practitioners.
[29] However, it is important to confirm that possession of a certificate signed by a medical practitioner is not necessarily determinative of the validity of a seat belt exemption. The legislative provisions confer significant professional discretion upon the practitioner, but that is with the expectation that the discretion will be exercised appropriately. At trial, the validity of a medical certificate and the grounds upon which it was issued may be challenged.
(c) What are the mechanics of proving a seat belt exemption arising from a medical certificate issued pursuant to s. 106(6)(b)(ii) of the HTA?
[30] This case is unique in that it proceeded on the basis of agreed facts with the main purpose of obtaining clarification of the applicable law. The prosecution tightly framed its legal argument on the issue of the duration of medical certificates. There were no other challenges to Mr. Powley's certificate or the grounds upon which it was issued.
[31] Nonetheless, this was a trial in which the parties jointly agreed that the constituent elements of the offence were made out. I must, therefore, apply the relevant legal provisions, principles and standards of proof to determine whether Mr. Powley is guilty or not guilty of the offence charged. Some legal analysis of the process of proving statutory exemptions is required.
[32] Given that s. 47(3) of the POA imposes on a defendant the burden of proving a statutory exemption, the defendant must lead evidence to that end. In the case of an exemption under s. 106(6)(b)(i) or (ii) of the HTA, the first step will necessarily be the production of evidence that the defendant held a medical certificate, on the date of the alleged offence, as required by the exempting provision: see R. v. Bixby, [1987] N.J. No. 454, 7 M.V.R. (2d) 196 (S.C. (T.D.)).
[33] More than the mere production of the medical certificate may be required depending on the circumstances of the case. It is always open for the prosecution to challenge a defendant's evidence and to present evidence to prove that an exemption does not operate in favour of a defendant. The wording of s. 47(3) is clear on this point. Therefore, a defendant may have to address a prosecutor's rebuttal evidence and arguments in order to prove, on a balance of probabilities, that an exemption operates in his or her favour.
[34] As already discussed, the professional judgment exercised in the decision to issue a medical certificate merits deference, but a medical certificate is not immune from challenge. At trial, the prosecution may question whether a certificate meets the legal requirements of the exempting provision. This again would be consistent with the prosecution's right of rebuttal as confirmed in s. 47(3) of the POA.
[35] One can easily imagine fact situations in which the prosecution could seek to challenge a medical certificate on grounds such as the certificate is not authentic; the practitioner is not legally qualified; or the content of the certificate is insufficient to establish the exemption. In my view, the prosecution may even, in the appropriate circumstances, seek to challenge a certificate on the basis that the underlying medical reason or physical characteristic that led to the certificate being issued was insufficient, was overstated or no longer exists. In the present case, none of these issues or challenges were raised by the prosecution. However, I believe that the prosecution that does set out to question a medical practitioner's professional judgment would be well advised to present cogent, if not expert, rebuttal evidence.
Conclusion
[36] In the present case, Mr. Powley's certificate was entered into evidence, on consent, as an exhibit and is, therefore, admissible pursuant to s. 46(4) of the POA. The certificate sets out "size" as the reason for the inability to wear a seat belt, which constitutes a recognized ground under s. 106(6)(b)(ii). I rejected the prosecution's legal argument that the certificate had to have and stipulate an expiry date. There were no other challenges to Mr. Powley's certificate.
[37] As a result, I find that Mr. Powley has met his burden of proof pursuant to s. 47(3) of the POA and established, on a balance of probabilities, that he met the requirements of the statutory exemption set out in s. 106(6)(b)(ii) of the HTA on April 12, 2015.
[38] The charge is dismissed.
Defendant acquitted.
End of Document