Court Information

Ontario Court of Justice

Date: October 13, 2017

Court File No.: Cornwall, Ontario 3960 999 00 4604838B 00

Parties

In the Matter of an appeal under clause 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— And —

Jorosiav Hucik Appellant

Court Details

Before: Justice D.A. Kinsella

Heard on: July 4, 2017

Reasons for Judgment released on: October 13, 2017

Counsel:

• Matthew Collins — counsel for the Crown
• Gerry McDougall — counsel for the defendant Jorosiav Hucik

On appeal from: a conviction by Justice of the Peace Forgues on January 4, 2017

Judgment

KINSELLA J.:

Overview

Alice laughed. "There's no use trying," she said: "one can't believe impossible things."

"I daresay you haven't had much practice," said the Queen. "When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast."

― Lewis Carroll, Through the Looking Glass

[1] What is the difference between a reasonable inference and impermissible speculation? When is a "fact" a "fact", especially when that fact is based on circumstantial evidence? This appeal raises these issues.

Relevant Legislation

[2] In order to place the facts in their appropriate context, it is useful to first review the applicable legislation.

[3] Section 190(3) of the Highway Traffic Act requires the driver of a commercial motor vehicle to "maintain a daily log and shall carry it at all times while in charge of a commercial motor vehicle on the highway."

[4] Section 190(7) states that the Lieutenant Governor in Council may make regulations prescribing the books, logs and records which must be kept, including the information they must contain. The regulations may also prescribe "hours of work, periods of rest and other requirements…, including prescribing different hours or periods for different types of work or driving."

[5] The regulation which governs the contents of a log book are contained in Ontario Regulation 555/06 (Hours of Service). This regulation sets out, among other things, the following:

i. Four categories of duty status time:

1. Off-duty time, other than time spent in a sleeper berth.
2. Off-duty time spent in a sleeper berth.
3. On-duty time spent driving.
4. On-duty time, other than time spent driving.

ii. On-duty time, other than time spent driving, includes:

(a) inspecting, servicing, repairing, cleaning and warming up a commercial motor vehicle;

(b) travelling in a commercial motor vehicle as a co-driver, when the time is not spent in the sleeper berth;

(c) participating in the loading and unloading of a commercial motor vehicle;

(d) inspecting and checking the load of a commercial motor vehicle;

(e) waiting for a commercial motor vehicle to be serviced, loaded, unloaded and dispatched;

(f) waiting for a commercial motor vehicle or its load to be inspected; and

(g) waiting at an en-route point because of an accident or other unplanned occurrence or situation.

iii. Daily log requirements — information to be entered at the start of the day:

• The driver's name
• Licence plates for both the tractor the driver is operating as well as all trailers the driver is drawing during the day
• Company or operator the driver is working for
• The date and start time of the day being recorded if the day does not commence at midnight
• The odometer reading at the beginning and end of the day
• The number of hours of both on-duty and off-duty time, within the meaning of this regulation

iv. Information to be entered during the course of the day:

• The start and end times for each duty status during the day; and
• Each city, town, village or highway location and the province or state where the driver's duty status changes.

v. Possession requirement:

A driver is not permitted to drive unless he or she has in her possession a copy of the daily log for the current day, completed up to the time at which the last change in the driver's duty status occurred.

vi. Handwritten log requirements:

If the driver has a handwritten log, he or she must also include a duty status graph grid in Form 1.

Facts

[6] This was a short trial with one witness. Constable Latreille, a police officer with the Ontario Provincial Police Highway Safety Division, was on duty April 7, 2016. On this date he and other members of the Highway Safety Division were conducting a ride program in South Stormont Township at the Brookdale off-ramp for highway 401 traffic going westbound.

[7] At approximately 3:10 pm, he observed a commercial motor vehicle, later identified as being driven by the defendant, exiting on the off-ramp from highway 401 westbound. He could see the driver was leaning heavily to the right side of the cab, towards the passenger side. He spoke briefly with the driver and asked him to pull over. He watched as the driver continued to lean heavily to his right as he was pulling over to the shoulder, at times not looking at the road. When the vehicle came to a stop, Constable Latreille proceeded to jump up on the cab's perch and could see the defendant was holding a pen in his hand and was trying to complete his logbook.

[8] The officer took the log book and made a photograph of the page. That photograph was later entered as exhibit 1. The photograph shows a handwritten log book with a grid similar to that reproduced above. The log book shows the name of the defendant; the plate numbers for both the tractor he was operating as well as the trailer he was drawing; the date; the product he was carrying; his starting odometer reading; and next to his starting odometer reading the location of "Markham" was noted. All of these notations were made in blue-coloured ink. It appears to be accepted that Markham refers to Markham Ontario, a city in the east end of the Greater Toronto Area.

[9] On the grid, the word "Markham" was written in blue ink below the line for the time of 6:30 am. Below the time for approximately 1 pm the word "Montreal" was written in blue ink. In black ink there was a horizontal line commencing at the 6:30 am mark and ending just before the 11:15 am mark. It was this line that the officer believed the defendant was attempting to draw in when he was stopped.

[10] The officer testified that, in addition to his own observations as well as the log book entries, given the location, time and direction the defendant was travelling in when stopped, he concluded that the defendant had gone to Montreal, dealt with his load there, and then was returning to Markham. As such, the officer concluded that the defendant had failed to maintain his log as required by the regulation and charged him accordingly.

[11] Mr. Hucik did not testify.

[12] The agent for Mr. Hucik at trial, not Mr. McDougall, argued that the Crown had failed to prove its case beyond a reasonable doubt as there was no evidence before the court that Mr. Hucik had changed his duty status such that he was obligated to update the log book. He submitted that the officer's observations of Mr. Hucik adding a line to the log book did not amount to an offence and the balance of the Crown's case – namely that the defendant had stopped in Montreal, thereby changing his duty status – was nothing more than conjecture. He maintained that the only evidence before the court was that Mr. Hucik was driving on a highway and that is what his log book showed.

[13] In her reasons for judgment, the learned justice of the peace found that there was sufficient evidence to satisfy her beyond a reasonable doubt that Mr. Hucik had failed to maintain his daily log in accordance with the prescribed regulations. She noted that, while the log book showed that he had left Markham travelling towards Montreal, it did not show why he stopped at 11:15 am, the location where the black line ends. She also noted that she had no way to know whether he had reached Montreal, as there was nothing in the log book to say so. She concluded that she could draw the inference that he had stopped at some point, which would require him to make a notation of the change in his duty status. His failure to do so resulted in a failure to maintain his daily log book. The learned justice of the peace convicted Mr. Hucik and imposed the set fine.

Grounds of Appeal

[14] On appeal Mr. McDougall advances the same grounds as those advanced by the agent at trial, namely that there was no evidence before the court that the defendant had changed his duty status.

Scope of Powers of the Appellate Court

[15] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under section 135 of Part I offences is conducted by means of a review.

[16] There are some practical limitations. As observed by Justice Duncan in the case of R. v. Gill, [2003] O.J. No. 4761, "…it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case. The Act grants a defendant only one trial; it is not a trial run." [at para 10]

Case Law

[17] In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada has provided trial courts with guidance on the concept of "reasonable doubt". A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is a doubt that logically arises from the evidence, or the absence of evidence. It is not enough for the trier of fact to believe that the accused is probably or likely guilty; however it is further recognized that proof beyond a reasonable doubt is not proof to an absolute certainty.

[18] A reasonable doubt cannot be based on conjecture or speculation. Rather, a reasonable doubt is one that is "logically connected to the evidence" (R. v. Lifchus, supra, at paragraph 28).

[19] When a case is based solely or primarily on circumstantial evidence, the trier of fact is required to determine that a series of facts are unlikely to exist as a matter of coincidence. The trier of fact must consider the totality of the evidence and not focus on individual pieces of evidence considered in isolation. See R. v. Masterson, 2008 ONCA 481, [2008] O.J. No. 2382. Any inferences drawn from the circumstantial evidence must be reasonable inferences.

[20] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200, at pp. 205 and 211. The Crown, therefore, may need to negate reasonable possibilities. In R. v. Paul, [1975] S.C.J. No. 114, the S.C.C. was asked to consider the question of whether or not the Crown was required to call evidence which would exclude the possibility of any inference being allowed for other than one supportive of guilt. In rejecting this approach, the court held: "I do not think that the burden resting on the Crown to establish the guilt of the accused beyond a reasonable doubt includes the added burden of negativing every conjecture to which circumstantial evidence might be consistent with the innocence of the accused".

[21] More recently, in R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, the S.C.C. noted that the trier of fact was obligated to consider other reasonable possibilities or plausible theories based on "logic and experience applied to the evidence." The court went on to say, at paragraph 8:

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[22] In addition, while a defendant is not obligated to testify or present any evidence, there must still be a factual basis or air of reality for alternate inferences. Absent testimony from the defendant in this case, and in light of the accepted evidence, any suggestion that he had been continuously driving such that his log book was accurate is in fact mere speculation. The defendant could have testified to this effect but chose not to, something the court is entitled to consider. See R. v. Eastgaard, [2011] A.J. No. 519 (A.C.A.); aff'd 2012 SCC 11, [2012] S.C.J. No. 11.

Analysis

[23] In my view, the evidence at trial amply supported a conclusion that the appellant had left Markham ON around 6:30 am April 7, 2016 and travelled eastbound to Montreal Quebec, arriving there sometime around 1 pm the same date. The evidence supports a conclusion that the appellant's duty status changed in Montreal for a period of time and that sometime afterwards he was back operating a commercial motor vehicle on a highway, another change of his duty status. His failure to note those changes in his duty status in his logbook constitutes a breach of the regulation.

[24] The conclusion that he changed his duty status at least once if not twice resulting in his log book being improperly maintained is based on the following:

• The entry in the log book showing he left Markham ON at 6:30 am
• The entry in the log book showing he left Markham with a load of steel to be delivered
• The entry in the log book indicating that he intended to arrive in Montreal at approximately 1 pm the same day
• The fact that he was stopped travelling westbound in Cornwall, approximately 114 kilometres away from Montreal, at 3:10 pm
• The fact that he was attempting to fill out the grid in his log book at the time the officer stopped his vehicle

[25] These facts, taken together, strongly support the inference that he stopped his vehicle in Montreal, and that stop was a change in duty status. The learned justice of the peace's conclusions were neither speculative nor conjecture, and were entirely based on the facts before her.

[26] The appeal is therefore dismissed.

Released: October 13, 2017

Signed: Justice D.A. Kinsella