Court File and Parties

Ontario Court of Justice

Date: 2019-09-03

Court File No.: 17 0522

In the Matter of: An appeal under subsection 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— And —

Rickey Bruce Minish Appellant

Before: Justice D.A. Kinsella

Heard on: July 16, 2019

Reasons for Judgment released on: September 3, 2019

Counsel

Matthew MacLean — counsel for the prosecution

Gerry McDougall — agent for the defendant Rickey Bruce Minish

Appeal

On appeal from the conviction by Justice of the Peace Girault on October 18, 2018.

Reasons for Judgment

KINSELLA J.:

Facts and Charge

[1] Mr. Minish was charged with driving a commercial motor vehicle with a major defect in it, contrary to section 107 of the Highway Traffic Act (HTA). This charge arose out of events which occurred on June 18, 2017.

[2] The matter proceeded to trial on October 18, 2018 and Mr. McDougall acted as agent for Mr. Minish. The Crown called Rejean Laframboise, an officer with the Ministry of Transportation for Ontario (MTO). Mr. Minish testified in his own defence and also called John Maloney, whose company owned the trailer. The learned Justice of the Peace found Mr. Minish guilty and imposed a $750 fine. Mr. Minish appeals against conviction only.

[3] Mr. McDougall represents Mr. Minish on appeal. He argues that the Justice of the Peace made the following errors of law:

i. There was no evidence before the learned justice of the peace that the defendant had been properly summonsed for this offence;

ii. She improperly applied the W.D. analysis; and

iii. She failed to consider the defence of due diligence and unfairly reversed the onus of proof onto the defendant.

Factual Background

[4] The facts in this case can be summarized simply. On June 18, 2017 at 7:25 am, a commercial motor vehicle owned and operated by Rickey Minish was stopped by MTO Officer Laframboise for inspection at the Lancaster truck inspection station on highway 401 in South Glengarry after the officer noticed that the brakes on one trailer did not appear to be applying. During that inspection the officer measured the push rod travel of the wheel brakes for the second trailer and found there was no push rod travel at all for any of the four brakes, rendering them inoperative. Furthermore, he discovered a crack to the left side outer wheel rim on the power unit. As a result, Mr. Minish was charged with the offence before the court. Both the defect to the brakes as well as the defect to the wheel rim were considered major defects.

[5] Mr. Minish testified that he was the owner-operator of the tractor involved and that he was contracted out to MacEwan Petroleum to transport fuel using their trailers. He said that he had done a pre-trip inspection in the early morning hours before leaving and had not seen any defects. He also testified that he had not noticed any issues with the brakes on the trailer when he was driving the vehicle to Montreal and back. He testified that the trailer was examined after the offence and it was determined that the brakes had failed because of a faulty valve, which was subsequently replaced. He said there was no way to test that valve saying, sometimes, "brakes fail". He testified that, while he believed the trailers were examined bi-weekly by a mechanic hired by MacEwan Petroleum, he did not know when that inspection had been last done prior to the incident.

[6] Mr. John Maloney also testified for the defence. He is the operations coordinator for MacEwen Petroleum. He testified that his company did arrange to have the rim replaced after the incident and that he observed a hairline crack in it once it was removed, although added that it was "very hard to see". In cross-examination he confirmed that a faulty valve had been repaired but that he had not asked the mechanic any details as to when it might have failed or how it might have failed, adding that "parts fail on a regular basis."

Alleged Errors in Process

[7] Mr. McDougall's first ground of appeal is that there was no evidence before the court that Mr. Minish had ever been served with a summons for the offence set out in the information. He refers to several sections of the Provincial Offences Act (POA), specifically sections 22, 23, 24, 25 and 26, and says that the prosecution failed to "give evidence" on any of these sections. He submits that the learned Justice of the Peace erred in proceeding to trial without noticing this error and hearing evidence on it.

[8] The defendant's submissions on this point are difficult to understand. Mr. Minish was charged under information 17 0522, which was sworn to on July 17, 2017. Attached to that information is a summons issued to Mr. Minish for this offence. That summons is dated June 18, 2017 and includes with it an affidavit of service from Officer Laframboise that he served Mr. Minish with this summons on June 18, 2017. The summons includes Mr. Minish's name, the charge he is facing, date and location for that alleged offence, and sets out his court date. These documents were before the learned Justice of the Peace on October 18, 2017.

[9] Mr. Minish testified on his own behalf and never testified that he had not been served a summons. The issue was never raised by Mr. McDougall at trial.

[10] The relevant POA sections are as follows:

Section 22 provides:

22. Where a provincial offences officer believes, on reasonable and probable grounds, that an offence has been committed by a person whom the officer finds at or near the place where the offence was committed, he or she may, before an information is laid, serve the person with a summons in the prescribed form.

Sections 23 and 24 state:

23.(1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

24.(1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,

(a) where he or she considers that a case for so doing is made out,

(i) confirm the summons served under section 22, if any,

(ii) issue a summons in the prescribed form, or

(iii) where the arrest is authorized by statute and where the allegations of the informant or the evidence satisfy the justice on reasonable and probable grounds that it is necessary in the public interest to do so, issue a warrant for the arrest of the defendant; or

(b) where he or she considers that a case for issuing process is not made out,

(i) so endorse the information, and

(ii) where a summons was served under section 22, cancel it and cause the defendant to be so notified.

[11] Section 25 sets out the requirements for the substantive content of the information and is not related to process.

[12] While there is no statutory definition of what it means to "confirm" a summons under section 24, it is clear that the confirmation process is intended to provide a judicial safeguard and ensure that matters for which there are insufficient reasonable and probable grounds do not proceed to trial. Furthermore, there is a "presumption of regularity" to the confirmation process and an assumption that the confirming justice turned his or her mind to the requisite facts before confirming the summons issued to the defendant (R. v. Tait, [2001] O.J. No. 2948, at paragraph 106).

[13] As noted above, this issue was not raised at trial. It is trite law to say that, as a general rule, courts should not permit an issue to be raised for the first time on appeal (R. v. Brown, [1993] 2 S.C.R. 918).

[14] Furthermore, even had the issue been raised at trial, the law is clear that a defect in process does not nullify the proceedings especially when a defendant appears before the court (R. v. Naylor, (1978), 42 C.C.C.(2d) 12 (Ont. C.A.)). This approach has been codified in section 90 of the POA, which states:

(1) The validity of any proceeding is not affected by,

(a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or

(b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.

(2) Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs.

[15] As such, this ground of appeal is dismissed.

The Justice of the Peace Erred in Her Application of the Principles Relating to Assessment of Credibility

[16] Mr. McDougall alleges that the learned Justice of the Peace failed in her assessment of the evidence of Mr. Minish. He alleges that she accepted some of Mr. Minish's evidence but rejected other components of it.

[17] In a case where the accused has chosen to call evidence, the trial court must consider the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-758 when determining whether or not the prosecutor as proven the guilt of the defendant beyond a reasonable doubt:

1. If the court believes the evidence of the defendant, the trial justice must find him not guilty.

2. Even if the court does not believe the defendant's evidence, if his evidence leaves the trial justice with a reasonable doubt of his guilt, she must find him not guilty of this offence.

3. Even if the evidence of the defendant does not leave the trial justice with any reasonable doubt as to his guilt, the court may only find him guilty if, based on the evidence that the trial justice does accept, she is satisfied beyond a reasonable doubt of his guilt.

[18] A trier of fact is entitled to accept some, all or none of any person's evidence, including that of an accused (R. v. Samuels, [2005] O.J. No. 1873 (Ont. C.A.)).

[19] A review of the learned justice of the peace's reasons reveals that she properly applied the analysis as set out in W.D., supra. She was clear that she in fact accepted the testimony of Mr. Minish about how he conducted his pre-trip inspection and the evidence of his witness John Maloney that, while a crack was present, it was difficult to see. While the transcript is not clear that she rejected any of Mr. Minish's evidence (as opposed to finding it insufficient to meet the legal burden), in the event that I am wrong about that conclusion she was entitled to do so.

[20] As such, this ground of appeal is dismissed.

Failure to Consider the Defence of Due Diligence

[21] Mr. McDougall submits that the learned justice of the peace failed to properly consider the defence of due diligence. He further submits that the learned justice of peace inserted an "impossible element" into the case by requiring the defendant to put forward evidence in support of this defence that he simply could not.

[22] The offences charged here are 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.

[23] 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.

[24] 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."

[25] In this case, Mr. Minish candidly testified that, while he had done a pre-trip inspection, it was not done to the extent of the one conducted by the MTO officer. He did not, for example, crawl under the vehicle to check the travel of the push rods, something which could have demonstrated that the brakes were not working properly. His evidence on why he believed the brakes were working properly came down to the simple fact that, because he did not feel he had to apply excessive force while driving, he assumed they were in functioning order.

[26] In her reasons, the learned Justice of the Peace noted that there was no real dispute between the evidence called by the prosecutor and defendant as to the fact that the brakes had failed and that there had been a crack in the wheel rim. She correctly identified that the issue before her was really whether or not the steps taken by Mr. Minish were sufficient to support the defence of due diligence.

[27] In concluding that they were not as it related to the brakes[i], the learned Justice of the Peace noted that additional information may have been beneficial, for example evidence about how the valve which failed worked and when it might have been serviced last. The learned Justice of the Peace was entitled to point out these gaps in the defence evidence and, contrary to Mr. McDougall's submissions, "impossible elements" for the defence to meet.

[28] Ultimately, the learned Justice of the Peace found that steps taken by Mr. Minish were insufficient to meet the standard of due diligence. She noted in her judgment "The onus on a due diligence defence is relatively high, if I can put it that way, because of the safety of the public at large and it has not been met in this case on the brakes."

[29] The learned justice of the peace's findings are consistent with the guidance provided by the courts in this area and set out above. As noted, Mr. Minish could not say when the trailer had been last serviced; could not offer any information about when or how the valve failed; and by his own admission had done a cursory inspection at best. The learned Justice of the Peace's findings are, in any event, subject to considerable deference (see R. v. Gill, [2003] O.J. No. 4761).

[30] For these reasons, this ground of appeal is also dismissed.

Conclusion

[31] The appeal is therefore dismissed.

Released: September 3, 2019

Signed: Justice Kinsella

[i] The learned justice of the peace did find that Mr. Minish had met the defence of due diligence as it related to the crack in the rim.