Court Information

Ontario Court of Justice

Date: February 2, 2018

Court File No.: Cornwall, Ontario 3960 999 00 1986039Z

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-

Ronald McLeese Appellant

Before the Court

Before: Justice D. A. Kinsella

Heard on: November 21, 2017

Reasons for Judgment released on: February 2, 2018

Counsel

M Maclean — counsel for the Crown

R Riddell — agent for the defendant Ronald McLeese

Appeal Information

On appeal from a conviction by Justice of the Peace Winchester on July 26, 2017

Decision

KINSELLA J.:

Introduction

[1] The defendant was charged with entering inaccurate information in a daily log, contrary to the Highway Traffic Act Ontario Regulation 555/06 section 27(1). He was represented at trial by Mr. Riddell. Mr. McLeese was found guilty and fined $400.00 plus costs.

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:

Categories of Duty Status Time

There are four categories of duty status time for the purpose of this regulation:

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.

On-Duty Time (Other Than Driving)

The regulation sets out what is considered on-duty time other than time spent driving:

(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.

Off-Duty Time

The regulation states that a driver is off-duty "when he or she is not on duty." It goes on to state:

Despite subsection (2), a driver is off duty when he or she drives a commercial motor vehicle if:

(a) he or she is driving the vehicle for personal use that has no commercial purpose;

(b) the vehicle has been unloaded;

(c) any trailers have been unhitched;

(d) he or she does not drive the vehicle more than 75 kilometres in a day; and

(e) an entry is made in the "Remarks" section of the daily log or on the time record required by subsection 18(3):

• (i) stating that the driver used the vehicle for personal use, and
• (ii) setting out the odometer readings at the start and the end of the personal use driving.

O. Reg. 555/06, s. 2(4).

Daily Log Requirements

Every driver must keep a daily log (either in handwriting or by way of computer entry). The following information must be entered into the log 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

Information During the Day

The following information must be entered into the log 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.

Possession Requirements

A driver is not permitted to drive unless he or she has in her possession a copy of the daily log for the previous 14 days, the daily log for the current day, completed up to the time at which the last change in the driver's duty status occurred, and all supporting documents.

Inspection and Surrender

The driver must surrender all of these documents (i.e. daily log book, copy of the daily log for the preceding 14 days, and all supporting documents) for inspection upon the demand of an inspector.

[6] Section 27(1) of the same regulation sets out the following offence:

No person shall enter inaccurate information in a daily log or falsify, mutilate or deface a daily log or any supporting documents. O. Reg. 555/06, s. 27(1).

Facts

[7] At the outset of the proceeding, the prosecutor advised the court that they were only seeking to establish that Mr. McLeese had entered inaccurate as opposed to false information. This was a short trial with one witness. Constable Smit, an officer with the Ministry of Transportation for Ontario ("MTO"), was on duty June 20, 2016. On this date he was conducting routine enforcement of commercial motor vehicles, operating out of the Lancaster Inspection Station on Highway 401 Westbound.

[8] At approximately 12:03 pm, he approached a commercial motor vehicle, later identified as being driven by the defendant, at the Lancaster Inspection Station. The defendant was operating a tractor-trailer unit. The truck tractor had an Ontario plate number 7453PS. It was pulling a trailer with Ontario plate number E1516Z. He satisfied himself that the vehicle had a gross weight of 63500 kilograms.

[9] On consent, the Crown filed as exhibit 1 in the trial an MTO document under seal setting out that Ontario plate number 7453PS was registered to Duane McLaughlin Transport Inc. at an address in Haley Station, ON and attached to a commercial motor vehicle.

[10] Constable Smit testified that he asked the defendant to supply him with his daily log and any supporting documentation including fuel receipts. He testified that Mr. McLeese handed over his log and the following additional documents: a fuel receipt showing that the vehicle had been fueled in Arnprior, Ontario on June 19, 2016 at 11:12 pm; a mileage report written in the defendant's handwriting; a bill of lading from a business in Tatlock, ON with a loading date of June 20, 2016 at 6:31 am for a load weighing 85180 pounds; and finally a bill of lading from a company in St. Hubert, Quebec showing a load of 85180 lbs being delivered on June 20, 2016 at 10:28 am.

[11] The log book and supporting documents were filed as exhibits 2, 3, 4, 5, & 6 respectively. At the time that exhibits 3-6 were submitted, Mr. Riddell objected to them being tendered if they were being relied on for the truth of their contents. The prosecutor was clear that the documents were not to be filed for the truth of their contents but as supporting documents, which the defendant was obligated by the legislation to produce. The documents were made exhibits over Mr. Riddell's objections.

[12] The daily log book consists of two pages. It is both a pre-printed form as well as hand-written entries. The pre-printed aspects of the form indicate that it is for Duane McLaughlin Transport Inc. in Haley Station, ON. There is a grid which requires the driver to mark in his off duty, sleeper berth, driving, and on duty (not driving) activities. There is handwritten information showing the driver as Ronald McLeese, the plate of the vehicle as being 7453PS. The first page shows the date as "Sun 19/06/2016" and indicates that the driver was off-duty for the full 24 hours. The second page shows the date as "Mon 19/06/2016" and then the following entries:

• the driver started work at 04:30 am performing on duty (not driving) duties until 05:00 am in Haley Station, ON
• the driver was driving from 05:00 am until 06:00 am
• the driver is shown as off-duty from 06:00 am until 07:00 am while in Tatlock, ON
• the driver is then driving from 07:00 am until 10:30 am
• the driver is shown as off-duty from 10:30 am until 11 am in St. Hubert, PQ

[13] The handwritten mileage log, also provided as a supporting document, appears to be in the same handwriting as the handwritten entries on the daily log. Although difficult to read, it has the following notations:

• "Off Sat/Sun"
• "Fuel Arnprior June 19 Sun 11:10 pm"
• "Tatlock load"
• "in QC 9:18 am"
• "Tech Bloc 10:28 am"
• "Out QC 11:50 am"

[14] Constable Smit testified that, in comparing the supporting documents provided by the driver to the driver's daily logs, he found the following inaccuracies:

i. The fuel receipt was dated for June 19, 2016 at 11:12 pm, a time when the daily log showed the driver to be off-duty;

ii. The bill of lading from the business in Tatlock, Ontario showing a shipment being loaded on June 20, 2016 at 06:31 am, a time when the daily log showed the driver to be off-duty;

iii. The bill of lading from the business in St. Hubert, Quebec showing a shipment being loaded on June 20, 2016 at 10:28 am where the driver's log book shows him as being off-duty from 10:30-11:00 am; and

iv. The second page of the log book was dated as "Mon 19/06/2016" when Monday was in fact the 20th of June, 2016.

[15] In cross-examination, Constable Smit acknowledged that he had not spoken with anyone at any of the companies shown in the supporting documents to confirm the accuracy of the information. He acknowledged he had not questioned the defendant about any of the documents or asked him about the surrounding circumstances.

[16] He also acknowledged that, on his commercial vehicle inspection report ("CVIR"), he had incorrectly noted the plate number for the vehicle as "2453PS". He also acknowledged he had not checked the Vehicle Identification Number ("VIN") for the vehicle in question.

[17] Mr. McLeese did not call any evidence.

[18] At trial, Mr. Riddell argued that there was insufficient evidence to prove beyond a reasonable doubt that there were inaccuracies in the log book as the prosecutor had failed to prove that the records provided by Mr. McLeese were accurate and as such could not prove that the differences in the log book were inaccuracies. Second, he submitted that the learned Justice of the Peace misapprehended the legislation concerning the definition of on-duty and off-duty hours. He submitted that, unless there is evidence that the driver is participating in the loading or unloading of a vehicle, they are permitted to show their time as "off-duty". Finally he advanced the argument that the Crown failed to prove beyond a reasonable doubt that his client was operating a commercial motor vehicle given some confusion in the evidence about the licence plate.

[19] The learned Justice of the Peace rejected these submissions and concluded that the prosecutor had established beyond a reasonable doubt that Mr. McLeese had been operating a commercial motor vehicle and that he had inaccuracies in his daily log book.

Analysis

[20] On appeal Mr. Riddell advances the same grounds as those put forward at trial.

[21] As has been noted many times before, 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. However, there are 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]

Failure to Prove Inaccuracies

[22] Mr. Riddell's argument on this point appeared to be somewhat inconsistent. On the one hand, he argued that the Crown's failure to prove the inaccuracies of the supporting documents meant that they could not be used comparatively to show that the entries in the daily log book which appear to contain different data were inaccuracies.

[23] On the other hand, at trial and during submissions he seemed not to question the authenticity of the supporting documents insofar as they supported the defendant's version that he was in fact off-duty.

[24] That being said, there is no doubt that the supporting documents do not match the entries in the driver's daily log. A review of the legislation leaves little doubt that the driver's daily log is intended to be reviewed in conjunction with the supporting documents. Doing so in this case can leave no doubt that there are in fact inaccuracies between the two. The justice of the peace's finding in that regard was reasonable and well supported by the evidence.

[25] As for the argument that the Crown must prove the accuracy of the supporting documents in a case where inaccuracy as opposed to falsification is alleged, I rely on the decision of the Court of Appeal in R. v. Fickling [2013] O.J. No. 5597, which is dispositive on this issue.

Interpretation of Legislation

[26] Mr. Riddell submits that the learned Justice of the Peace erred in her interpretation of the regulations. He submits that a driver is permitted to show his status as off-duty if he is not participating in the loading or off-loading of a vehicle. He seemed to suggest that, because the daily log showed him as "off duty", the court had to accept that unless the Crown could prove otherwise. He further submitted that it was accepted practice within the industry for drivers who were not participating in the loading or unloading to show their time as "off duty". Mr. Riddell was unable to provide any case law or authority to support this interpretation.

[27] Be that as it may, the legislation in my view is clear and unambiguous. The regulation sets out seven ways in which a driver may be on-duty but not driving. Two of these are "participating in the loading and unloading of a commercial motor vehicle" and "waiting for a commercial motor vehicle to be serviced, loaded, unloaded and dispatched". In this case, there was ample evidence upon which the learned Justice of the Peace could conclude, as she did, that the defendant was either participating in or waiting for his vehicle to be loaded or unloaded. Her finding was reasonable and supported by the evidence.

[28] I would add that, 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 or explanations. Absent testimony from the defendant in this case, and in light of the accepted evidence, any suggestion that the supporting documents he provided were the wrong ones or handed in erroneously and that his log entries were accurate is nothing more than 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.

[29] These two grounds of appeal are therefore dismissed.

Failure to Prove that the Vehicle was a Commercial Motor Vehicle

[30] On appeal, Mr. Riddell filed a copy of the CVIR prepared by Constable Smit on June 20, 2016 to show that the court should have been left with a reasonable doubt about whether or not the vehicle Constable Smit was dealing with was in fact a commercial motor vehicle. He says that, because there is no evidence before the court that the vehicle with the plate number "2453PS" was a commercial motor vehicle...

[31] A reasonable doubt cannot be based on conjecture or speculation. Rather, a reasonable doubt is one that is "logically connected to the evidence." 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 (R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.))

[32] The overwhelming evidence before the court was that the motor vehicle Constable Smit was dealing with on June 20, 2016 was the vehicle with the licence plate number "7453PS". That was the plate the officer testified to under oath and the plate number that shows up on the driver's daily log, as well as in the certified MTO documents. As such it was abundantly reasonable for the learned Justice of the Peace to conclude, as she did, that the vehicle being operated by the defendant was a commercial motor vehicle.

[33] This ground of appeal is also dismissed.

Conclusion

[34] The appeal is therefore dismissed.

Released: February 2, 2018

Signed: Justice D.A. Kinsella

Note: The handwriting on the log book is quite poor and the "7" could look like a "2".