Court Information
Ontario Court of Justice
Date: October 9, 2018
Court File No.: 3960-999-00-2015076Z and 3960-999-00-2015075Z
In the Matter of: An appeal under subsection 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Parties
Between:
HER MAJESTY THE QUEEN Respondent
-AND-
JUGJIT DHALIWAL and 6291856 CANADA INC. Appellants
Judicial Information
Before: Justice D.A. Kinsella
Heard on: August 1, 2018
Reasons for Judgment released on: October 9, 2018
Counsel:
- Matthew Maclean, counsel for the prosecution
- Gerry McDougall, agent for the defendants Jugjit Dhaliwal and 6291856 Canada Inc.
On appeal from: Convictions by Justice of the Peace Winchester on October 25, 2017
KINSELLA J.:
Facts and Charges
[1] Mr. Dhaliwal was charged with driving a commercial motor vehicle with a major defect in it, contrary to section 107 of the Highway Traffic Act (HTA). 6291856 Canada Inc. was charged with the offence of push rod stroke exceeds prescribed limit – commercial motor vehicle, contrary to HTA Regulation 587 and pursuant to section 207(1), s. 5(1). Both charges arose out of events which occurred on September 14, 2016.
[2] The matter proceeded to trial on October 25, 2017 and Mr. Riddell acted as agent for both Mr. Dhaliwal and the numbered company. The trial was brief. The Crown called Charles Cadieux, who is an officer with the Ministry of Transportation for Ontario (MTO). The defence did not call any evidence. The learned justice of the peace found both Mr. Dhaliwal and the numbered company guilty of the offences as charged and imposed fines on each.
[3] Mr. McDougall represents both appellants on appeal. He argues that the justice of the peace made the following errors of law:
i. She failed to distinguish between the owner, operator and driver;
ii. She failed to consider the defence of due diligence;
iii. She failed in finding the numbered company guilty where there was no evidence tendered that owner-operator knew about any defects with the vehicle's brakes; and
iv. She failed in finding that the inspector had tested the brakes in accordance with the regulations and, as such, erred in finding that the prosecution had proved its case beyond a reasonable doubt.
[4] The facts in this case can be summarized simply. On September 14, 2016 shortly after 2:00 p.m., a commercial motor vehicle owned by 6291856 Canada Inc. and being driven by Jugjit Dhaliwal was stopped by MTO Officer Cadieux for inspection at the scale house on highway 401 in South Glengarry. During that inspection the officer measured the push rod travel of the wheel brakes and found that four of the six brakes had push rod travel in excess of the prescribed limit, which is set out in HTA Regulation 587. As a result, both Mr. Dhaliwal and the numbered company were charged.
Distinction Between Owner/Operator/Driver
[5] Mr. McDougall's submissions on this ground appear to be based on a comment made by the learned justice of the peace in her reasons. At page 44, Her Worship initially misspeaks and begins to refer to Mr. Dhaliwal as the "operator" of the numbered company, but then quickly corrects herself and says Mr. Dhaliwal is "of" the company. Other than that slip, a review of her reasons make clear that there was no confusion in the learned justice of the peace's mind as to which role each appellant had and the law to be applied.
[6] Perhaps more importantly, there was never any dispute concerning identity in this case, either for Mr. Dhaliwal or the numbered company. Exhibit 1 at the trial, entered on consent, was a certified copy of the MTO record for Mr. Dhaliwal's licence. Exhibit 2 in these proceedings, also entered on consent, was a certified copy of the MTO documentation confirming identity of the numbered company as owner-operator of the vehicle being driven by Mr. Dhaliwal.
[7] As such, this ground of appeal is dismissed.
Failure to Consider the Defence of Due Diligence and Failure to Establish Owner-Operator's Knowledge of Defects
[8] Mr. McDougall submits that the learned justice of the peace failed in her conclusion that, because the defence had not called any evidence, the defence of due diligence could not be met. He further submits that the Crown failed to meet its burden of proof in that there was no evidence tendered that the owner-operator knew about the vehicle's defects.
[9] The same legal principles lie at the heart of both of these issues.
[10] The offences charged here are regarded as strict liability offences. In the context of these type of regulatory offences, the Crown must prove the actus reus of the offence beyond a reasonable doubt. That is an important distinction between these types of offences and pure criminal offences, where the Crown also bears the burden of establishing the requisite mental element beyond a reasonable doubt.
[11] R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 is the seminal case on due diligence. It establishes that the onus rests on the Crown to prove beyond a reasonable doubt the fact of non-compliance with the governing legislation. Once proven, the burden shifts to the defendant to establish on a balance of probabilities that all reasonable care was taken to avoid non-compliance.
[12] Mr. McDougall argues that there is no obligation for a defendant to testify in order to establish the defence of due diligence. This statement, at least in theory, is accurate. The defence of due diligence may arise from a number of sources. As noted by the Supreme Court of Canada in R. v. Wholesale Travel Group, [1991] S.C.J. No. 79, a defendant may "adduce evidence capable of amounting to evidence of due diligence, either through the testimony of the accused or that of other witnesses, including the cross-examination of Crown witnesses or by other means. It goes without saying that if the Crown has adduced such evidence, the accused can rely on it in discharge of the evidentiary burden (at paragraph 80.)
[13] While a defendant is not obligated to testify or present any evidence, there must still be a factual basis or air of reality to the defence (see R. v. Eastgaard, [2011] A.J. No. 519 (A.C.A.); aff'd 2012 SCC 11, [2012] S.C.J. No. 11.)
[14] There are solid policy grounds for this approach. As Justice Dickson observed in R. v. Sault Ste. Marie (City), supra, the defendant is in the best position to know what actions, if any, were taken to avoid a breach of the statute.
[15] In the decision of R. v. Timminco, [2001] O.J. No. 1443, the Ontario Court of Appeal supported this approach to strict liability offences, noting at paragraph 25: "As a policy consideration, where the hazard in question is caused by equipment that the employer has a special knowledge and control over, it is appropriate that the employer bear the burden of proving a defence."
[16] In this case, Mr. McDougall argues that the pre-trip inspection report, filed as Exhibit 4 at trial, amounts to proof on a balance of probabilities that both Mr. Dhaliwal and the numbered company exercised due diligence in that they took all reasonable care to avoid non-compliance with the statute. In summation, his submission on appeal (as it was at trial) is that the inspection report shows the brakes were in proper working order at the time Mr. Dhaliwal commenced his trip and, as such, supports the theory that the defect happened after the trip was commenced. While this argument might at least theoretically assist Mr. Dhaliwal, who prepared the report, it is difficult to see how it could apply to numbered company.
[17] In support of this submission, Mr. McDougall relies on the decision of Morton v. Sykes, [1951] O.J. No. 250 (Ont. H.C.J.). That case stands for the proposition that an owner and driver of a motor vehicle cannot be expected to guarantee the mechanical perfection of their vehicles at all times. That decision, however, arises out of a civil negligence case and is not of assistance to the appellants in the case at bar.
[18] Absent testimony from the defendants in this case as to exactly what inspection was done and when, and in light of the accepted evidence of Officer Cadieux that it would be unusual to have four out of six brakes fail within the time frame involved, any suggestion that the defects in the brakes occurred only after the trip was commenced, is in fact mere speculation.
[19] For these reasons, these two grounds of appeal are dismissed.
Failure to Consider that Brake Testing Not Done in Accordance with the Regulations
[20] Mr. McDougall submits that the learned justice of the peace erred in concluding that the Crown had met its burden to prove beyond a reasonable doubt the actus reus of the offence, namely that four of the six brakes on the commercial motor vehicle had push rod travel in excess of the prescribed limit. This same argument was advanced at trial.
[21] In his evidence, Officer Cadieux testified that he used a device referred to as a "chamber mate" in order to assist him in identifying what size of clamp the vehicle's brake chambers had, as the size of clamp is relevant to the push rod travel. Once he obtained that information he then proceeded to conduct a visual inspection which requires the driver to release all of the brakes in the order requested by the officer. The officer also utilizes a steel measuring tape and chalk to mark the distance that the push rods travel.
[22] In cross-examination, Officer Cadieux described the chamber mate in some detail. It would appear that it essentially acts as a measuring device. Officer Cadieux acknowledged that he had never had the chamber mate verified for any accuracy. He also agreed that the device is not referenced specially in the legislation or regulations. He did testify that he had been using the same device since he had started working with MTO and had no concerns about its accuracy.
[23] Mr. McDougall submits at trial that the tests performed by the officer were not done in accordance with the regulations in three ways. First, he submits that there was no evidence before the court that the vehicle being tested had been shut off, something he says is required by the regulations. This issue was not raised at trial nor was Officer Cadieux cross-examined on this point. His second argument is that the chamber mate is not an approved instrument and, as such, there can be no "presumption of accuracy" for it. Finally he submits that Officer Cadieux was unable to provide the specific initial air system pressure for the vehicle, only that it was between 90 and 100 psi.
[24] There is nothing in Regulation 587 that sets out what types of testing devices are required. The regulation sets out the circumstances under which the measurements must be performed but does not specify what kind of devices can or should be used to do those measurements. It is hard to see how the chamber mate is any different from a ruler, a scale, measuring tape, or any other item that a person might use to conduct measurements.
[25] The regulation is specific, however, about the circumstances under which the measurements must be done. Section 5(4) of Regulation 587 states:
(4) Measurements of wheel brakes under subsections (1), (2) and (3) shall be taken with the vehicle engine turned off, an initial air system pressure between 90 and 100 psi, the park brakes released and the service brake actuator fully applied. O. Reg. 229/95, s. 1.
[26] Mr. McDougall argues that, because the officer could not provide the specific initial air pressure, the tests were not done in accordance with this section. A plain reading of does not support that interpretation. The officer testified that he found that he verified that the air pressure was in a certain range, namely 90 to 100 psi, by observing the air gauges on the commercial motor vehicle's instrument panel. The officer, therefore, complied with the regulation.
[27] Mr. McDougall is correct when he says that there was no direct evidence before the court that the commercial motor vehicle's engine was turned off, a necessary pre-requisite under section 5(4). This issue was not raised at trial nor was Officer Cadieux ever asked this question, either in chief or in cross. Is this fatal?
[28] Evidence may be direct or it may be circumstantial. While there was no direct testimony that the vehicle's engine was turned off, there is the following circumstantial evidence:
Officer Cadieux testified that he had Mr. Dhaliwal pull the vehicle over to the inspection station, weighed the vehicle and have the driver produce various documents;
Officer Cadieux, who is an experienced inspector with almost ten years of experience, testified that the measurement process involved him crawling under the vehicle to inspect the brakes;
He testified, at page 21, "I instruct the driver to release the brake go ahead and release all your brakes, your wheels are chalked, so you are not going to roll anywhere";
He testified that he had observed Mr. Dhaliwal park the vehicle prior to commencing his inspection.
[29] An inference that the vehicle's engine was off can reasonably and logically be drawn from the established primary facts. It defies logic that an experienced officer, who has nearly ten years of experience in conducting these inspections, would place himself at extreme risk by crawling around under a vehicle, having the driver release the brakes, if he believed the vehicle would move. The logical conclusion to be drawn is that Officer Cadieux knew the vehicle would NOT move because the engine was turned off, as the regulation requires.
[30] As such, this ground of appeal is also dismissed.
Conclusion
[31] The appeals are therefore dismissed.
Released: October 9, 2018
Signed: Justice Kinsella