Court File and Parties

Court File No.: Central East - Newmarket 4960-12-2865-00 Date: 2016-06-20 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mr. Ice Man Ltd.

Before: Justice P.N. Bourque

Counsel: M.D. Peachey, for the Respondent P. Andrews, for the Defendant/Applicant

Reasons for Judgment on Appeal

Released on June 20, 2016

Overview

[1] The defendant corporation appeals the decision of Justice of the Peace Clarke, who found the defendant guilty of an offence under section 121 Highway Traffic Act that the defendant operated a commercial motor vehicle in excess of its registered gross weight.

[2] The offence date is June 25, 2012 and the trial was held and judgment given on April 20, 2015.

[3] The main issue on appeal is what, if any, evidence is required to make out a prima facie case, and conversely what evidence need be presented to bring this finding into doubt.

The Facts

[4] The evidence before that Court was as follows:

(i) The defendant owned and operated a commercial motor vehicle bearing licence plate 8109ZL, which, on June 25, 2012, was pulling a trailer;

(ii) The vehicle entered the weigh station on 400 highway;

(iii) The vehicle had an authorized gross vehicle weight of 8,043 kg. and the actual weight as determined by the weigh scale was 31,510 kg.;

(iv) The weigh scale was operated by Laura Benson, an employee of the Ministry of Transportation, whose job it was to enforce the Provincial Highway Traffic Act;

(v) It was her evidence that she had performed these duties for many years and on that day, was operating the scale as she had been instructed;

(vi) Several vehicles had preceded the defendant's vehicle onto the scales and the witness stated that the scales were operating normally;

(vii) She found that the vehicle drove onto the scale and she gave evidence as to the readings on the scale;

(viii) The witness had been trained on the use of the device many years before. She could not remember details of her training, nor her trainer. She did not know the name of the manufacturer of the scale.

[5] As an aside, the witness gave contradictory evidence as to whether she saw the contents of the defendant's vehicle. I don't think that issue is at all relevant to any issues and I do not think it affects her credibility.

[6] In cross-examination, the defendant made reference to a Certificate of Calibration that was dated May, 2015. The defendant wished her to testify that the document stated that the scales needed to be "calibrated". The witness testified that while she had no personal knowledge of the calibration, she believed it and believed that the scales were calibrated every 6 months. There was much back and forth between Crown and defence counsel about whether this document should be put in evidence and it eventually was.

[7] As the matter unfolded, the Crown first objected to having this document put into evidence and finally asked for it to be taken into evidence. The defence, while wanting to glean some information from the document, did not want it to be put in evidence as it also contained some evidence helpful to the Crown.

[8] For the purpose of this appeal, I will decide the matter as if the Certificate of Calibration was not put into evidence for the truth of its contents.

The Law

[9] In R. v. Bland, 20 C.C.C., (2d) 332, the Ontario Court of Appeal stated that with respect to a speedometer or a watch, which records time or a particular speed, and it is the purpose of that instrument to record, then that by itself can be prima facie evidence on which a court can act on time or speed. There would have to be some evidence elicited on cross-examination or otherwise to suggest that the devices were inaccurate.

[10] In R. v. B. Gottardo Construction Ltd., [2004] O.J. No. 2139, Justice Knazan of the Ontario Court of Justice, held that the Bland decision also applied to a weigh scale and stated at paragraph 60: "As I have already decided above that these scales fit into the class of mechanical devices discussed in Bland, there was no need for such evidence to make out a prima facie case. Lack of evidence of calibration may still be relevant when determining whether or not the case has been proven beyond a reasonable doubt".

[11] In R. v. R.W. Tomlinson Ltd., [2010] O.J. No. 6172, the Gottardo decision was cited the correct statement of law and "Evidence that a measuring instrument such as scales is accurate has repeatedly been held to be prima facie evidence of accuracy".

[12] The question which the Justice of the Peace had to decide is whether, having proven a prima facie case, taking into account all of the evidence, whether the weight of the vehicle was proven beyond a reasonable doubt.

[13] The defence argues that the Justice of the Peace did not consider the evidence that the scales required some calibration. I believe it is implicit in his judgment that he did consider that evidence when he stated: "There's been no evidence to the contrary that the scales were out significantly and an inability to give the weight that was indicated as being a total of 31,510 kg".

[14] It is implicit in his judgment that once there was a prima facie case (as was here), unless there was some evidence of any sort (a lack of calibration perhaps) casting the reading into doubt, then the Justice of the Peace had no doubt.

[15] Ultimately, I agree with the Justice of the Peace, that barring some evidence which could put the reading into doubt, there was no doubt. I believe that the presiding Justice of the Peace was within his purview to make that decision based on the evidence that he had.

[16] In my opinion, simply raising the issue that the device requires some calibration, does not, without some evidence of a lack of calibration, rise to the point of creating a reasonable doubt. With regard to the issue of credibility of the Crown witness, I agree that the Justice did not address it directly. However, I think it was implicit in his judgment, that he accepted the evidence of the scale's operator, and was not in doubt about the essential element of the evidence, that is, that the operator knew how to operate the scale and the reading of the scale was accurate.

[17] Of most importance as a matter of law, the Justice of the Peace clearly did not consider that the issues raised in cross-examination rose to the level that it would deter him from finding that the Crown's case was proved and he had no doubt. Based on all of the evidence from the transcript, I believe he had the right to come to that conclusion.

[18] I agree that he could have particularized the issues raised but in not doing so, I do not believe that he was in error.

[19] Even if I am incorrect and the Justice of the Peace's reasons do not come to the standard of R. v. Sheppard, I would be prepared to look at the transcript and make my own determination. It would be my ruling on this transcript that the evidence presented does not rise creating a reasonable doubt that the prima facie case should be believed.

Bias

[20] While it was not a part of the applicant's written factum, he did outline several areas during argument where he felt that the Justice of the Peace was showing a bias against the defence:

(a) The adjudicator threatened to start the case without counsel for the defence in the room, even though the Justice of the Peace was aware that counsel was tied up in another courtroom;

(b) During the trial when counsel for the defendant complained that the Crown had not provided him with a judicial authority before the case started, the Justice of the Peace stated: "Mister – to be fair, he would have given it to you if you had been here on time" (page 45, line 3);

(c) The Justice of the Peace stated, "Okay, if you want to bring in hearsay, that's fine" (page 26, line 2);

(d) After rendering his judgment, he pronounced his sentence without giving the defence an opportunity to be heard. After being informed of this by the counsel, he offered to hear what the defendant had to say, but counsel felt that "but now it's too late and you've given the fine" (page 56, line 20).

[21] In Ontario Provincial Police v. Mac, the Ontario Court of Appeal set out the test for the determination of whether an adjudicator should be removed as a result of bias:

Test for Reasonable Apprehension of Bias

[41] It has long been established that the removal of an adjudicator is appropriate where a reasonable apprehension of bias has been demonstrated. The applicable legal test was set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude..."

[42] The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must also be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further, "[t]he grounds for this apprehension must … be substantial… and the test [will not] be related to the very sensitive… conscience": R. v. S. (R.D.), [1997] 3 S.C.R. 484 at paras. 31 and 37.

[43] The reasonable person also knows and considers the context surrounding the impugned behaviour, including the length and difficulty of the proceedings: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.).

[44] There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: see, for example, R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.) at paras. 37-39; Chainauskas Estate v. Reed (2009), 2009 ONCA 572, 251 O.A.C. 209 (C.A.) at para. 12.

[22] Considering the actions complained of and referring to the law above, I do not think that it is sufficient to support an allegation of bias on the part of the Justice of the Peace. I do not believe that the Justice of the Peace was serious in threatening to start without the defendant, but perhaps an outburst of frustration when the parties are not ready to proceed at the appointed time. With the regard to the reference to "hearsay", I do not think it shows any bias. Any evidence can be admitted with the consent of the parties and in any event, the certificate was eventually admitted by both parties. I also note that the Justice did not refer to it in his reasons. I do not think he considered it as part of his judgment.

[23] It does concern me that the Justice would pronounce sentence without hearing from the defendant. I think that counsel for the defence was quite right in assuming that any submissions from him at that point would be a wasted exercise.

Disposition

[24] I dismiss this appeal.

[25] While the defendant did not appeal sentence, I would allow the defendant to present sentencing submissions before me, and after hearing argument from Crown and defence, would pronounce sentence anew.

Signed: "Justice P.N. Bourque"

Released: June 20, 2016