Brampton (City) v. Comrie, 2023 ONCJ 513

Date: November 21, 2023

In the Matter of: the Highway Traffic Act, R.S.O 1990, c. C.8

Between: His Majesty the King, prosecutor And: Lance Comrie, defendant

Court: Ontario Court of Justice Location: Brampton, Ontario

Before: Quon J.P.

Reasons for Ruling on Non-Suit Motion

Prosecution’s case completed on: September 22, 2023. Ruling on motion for non-suit released on: November 21, 2023.

Charges: s. 172(1) H.T.A. – “stunt driving”

Counsel: J. Valencia, municipal prosecutor Lance Comrie, self-represented defendant

Cases Considered or Referred To:

• Gill et al. v Elwood (1969), 9 D.L.R. (3d) 681 (Ont. C.A.), per Aylesworth, Laskin, and Jessup JJ.A.
• R. v. Bharath, [2016] O.J. No. 3416, 2016 ONCJ 382 (Ont. C.J.), per Quon J.P.
• R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253 (Ont. C.A.), per O'Connor A.C.J.O., Doherty, Sharpe, Epstein JJ.A. and Cavarzan J. (ad hoc), rev’g R. v. Hajivasilis, [2012] O.J. No. 859 (Ont. C.J.), per Mocha J. and rev’g R. v. Hajivasilis, 2009 ONCJ 310, [2009] O.J. No. 2731 (Ont. C.J.), per Cremisio J.P.
• R. v. Mansour, [1979] 2 S.C.R. 916, S.C.J. No. 77 (S.C.C.).
• R. v. Tresham, [1998] O.J. No. 1744 (Ont. Ct. (Gen. Div.)), per Boyko J.
• Shah v. Becamon, 2009 ONCA 113, [2009] 94 O.R. (3d) 297, [2009] O.J. No. 478 (Ont. C.A.), per Laskin, MacPherson, and Armstrong JJ.A.
• Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Ct. (Gen. Div.)), per Campbell J.

Statutes, Regulations and Rules cited:

• Highway Traffic Act, R.S.O. 1990, C. H.8, ss. 1(1), 1.1, and 172(1).
• Races, Contests and Stunts Regulation (Highway Traffic Act, R.S.O. 1990, C. H.8), O. Reg. 455/07, ss. 3, 5, 5(1), 5(5), and 5(6).
• O. Reg. 598/21, ss. 1 and 2 (regulation amending O. Reg. 455/07 (Races, Contests and Stunts Regulation).

Authorities or Reference Material Referred to or Considered:

• Sullivan, R. Sullivan on the Construction of Statutes, 7th ed. (Markham, Ont.: LexisNexis, June 2022).
• Sullivan, Ruth, Statutory Interpretation In A New Nutshell, The Canadian Bar Review, Vol. 82, No. 1, pp. 51-82, The Canadian Bar Review: online: cba.org website<<cba.org https://cbr.cba.org/index.php/cbr/article/view/3963/3956 >>

1. Introduction

[1] Although for the most part, the application of Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8 (“H.T.A.”) is limited to “highways” as defined under the H.T.A., and as a general rule, not applicable on private property, to which the general public does not have access or if that access is for a limited purpose other than for the passage of motor vehicles, such as for the parking of motor vehicles, it nevertheless would apply on private property or to parking lots if that particular statutory provision expressly states that the provision would apply on private property or on parking lots. This “general rule” on the applicability of the H.T.A. that had been established by the Court of Appeal for Ontario in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, specifically provides that where a H.T.A. provision expressly refers to a driving offence having to be committed on a “highway”, then the application of that H.T.A. provision is limited to only highways within the meaning of the H.T.A. On the other hand, if the H.T.A. provision setting out an offence does not expressly refer to the offence having to be committed on a “highway”, or that the prohibited act or omission is not necessarily related to having to be committed on a “highway” by implication or by definition, then that particular offence provision’s application is not strictly limited to having to occur only on a “highway” as defined under the H.T.A. As such, that provision may in context apply also to private property or to a non-highway and is not automatically precluded from applying to private property or to a non-highway. Ergo, a H.T.A. offence provision would apply on private property or on a non-highway if the provision or a related regulation expressly states that it does so, or if the provision does not by necessary implication, by definition, or expressly requires that the offence has to be committed on a highway, then that provision is not limited to only applying on a highway as defined under the H.T.A. and may in context apply also to a non-highway or to private property.

[2] In the present case, the issue that has to be decided is whether the “racing or stunt driving” offence set out in s. 172(1) of the H.T.A. which expressly states that it has to be committed on a “highway”, and for which Lance Comrie, the defendant, has been charged with committing this particular offence in a “parking lot” on private property on January 10, 2023, at 6:04 p.m., would apply to a parking lot located on private property. Subsection 172(1) expressly states that “No person shall drive a motor vehicle on a highway in a race or contest, on a bet or wager or while performing a stunt” [emphasis is mine below]:

Racing, stunts, etc., prohibited 172(1) No person shall drive a motor vehicle on a highway in a race or contest, on a bet or wager or while performing a stunt.

[3] In particular, the defendant has been charged with a “stunt driving” offence that allegedly involved him making donuts with the motor vehicle that he had been driving, by squealing the tires on his motor vehicle in oval-shaped movements in that private parking lot, which also left tire markings on the surface of that parking lot. Witnesses at trial had testified that the parking lot in question is a church parking lot located at 11613 Bramalea Road in Brampton, Ontario, which is directly beside the apartment building located at 11655 Bramalea Road where the defendant was residing at the time of the alleged offence. The superintendent of that apartment building had testified that she had heard the noise made by the motor vehicle making those so-called donuts in the parking lot and when she had looked out of her window of her apartment to see what had been causing that noise, she said that she had recognized the driver of that motor vehicle that had been doing the donuts in the parking lot as the defendant, Lance Comrie. She also said that other tenants of the apartment building had also called the police about the motor vehicle doing the donuts in the parking lot. She then said that the police arrived a short time later and that the police had stopped behind the motor vehicle she had identified as the motor vehicle doing the donuts in the parking lot while the defendant had been sitting in the driver’s seat of that motor vehicle. The superintendent had also said that she had gone outside and had overheard the defendant telling the police that the defendant had been doing nothing wrong, since the defendant had been on “private property”. And, after the police had interviewed witnesses and after the police had identified the defendant through his Ontario driver’s licence that had been provided by the defendant, the defendant has been subsequently charged with the “stunt driving” offence under s. 172(1) of the H.T.A.

[4] On whether a “parking lot” is a “highway” as defined under the H.T.A., it has been held by the courts that most privately owned parking lots are not "highways" as defined in the H.T.A.: see R. v. Mansour, [1979] 2 S.C.R. 916; Gill v. Elwood, [1970] 2 O.R. 59 (Ont. C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.). In addition, s. 172(1) does specifically refer to the prohibited act having to be committed on a “highway”, and as held by the Court of Appeal for Ontario in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, provisions in Ontario’s H.T.A. that specifically and expressly refer to a “highway” would be limited in its application to only a highway as defined under the H.T.A., unless other statutory provisions expressly state that it applies to non-highways or to private property or that it would not be limited in application to only a highway by necessary implication or by definition, so that the statutory provision may in context apply to non-highways or to private property, such as a private parking lot.

[5] For the present case, the prosecution had been able to complete its case in the trial of the “stunt driving” offence on September 22, 2023. However, as the defendant was self-represented and evidence had been elicited which had revealed that the defendant had raised the issue with Officer Kosakowski of the Peel Regional Police, who had charged the defendant with the stunt driving offence, that the defendant had done nothing wrong for the reason that the defendant had been on “private property”, the court informed the defendant that the issue of whether s. 172(1) of the H.T.A. applied to a parking lot on private property would be considered and decided first by the court before the defendant would be asked if the defendant wishes to consider the option of putting up a defence by electing to testify in the trial. Ergo, deciding the issue of the applicability of the stunt driving offence under s. 172(1) to a parking lot on private property is analogous to deciding this applicability issue under a motion for non-suit brought by the defendant.

[6] And, as to whether the stunt driving offence under s. 172(1) of the H.T.A. applies to private property, the prosecution submits that by virtue of s. 5 of O. Reg. 455/07 and O. Reg. 598/21, s. 172 would apply to a “specified place” that is defined in O. Reg. 455/07 and which also set out the places where it would apply.

[7] Accordingly, after a review of the jurisprudence on whether the H.T.A. applies to a parking lot on private property and a review of O. Reg. 455/07 and O. Reg. 598/21, the “stunt driving” offence proscribed in s. 172(1) does apply to both public and private parking lots, and even to private parking lots for which the public would ordinarily be excluded. This change regarding the application of s. 172(1) to parking lots on private property became law on September 12, 2021. Specifically, s. 5(1) of the Races, Contests, and Stunts Regulation, O. Reg. 455/07, expressly states that s. 172 of the H.T.A. applies to a “specified place”, and that under s. 5(6) of the Races, Contests, and Stunts Regulation, a “specified place” means any “parking lot, beach, park, bike path or trail, farm field or sports field”. Moreover. s. 5(6) defines a “parking lot” to include “any parking lot, garage or structure, whether public or private, paved or unpaved, flat or multilevel, above or below grade, including any driveway or road that connects the parking lot to a highway, any private, commercial or industrial parking lot or empty lot from which the public would ordinarily be excluded, and any parking lot into which drivers are expressly or impliedly invited or permitted to enter, with or without payment, and no matter whether payment is made or whether the driver entered with or without permission”. Hence, the stunt driving offence by regulation does apply to a parking lot located on private property, and even to a parking lot on private property from which the public would ordinarily be excluded.

[8] Furthermore, by virtue of s. 1.1 of the H.T.A. the Lieutenant Governor in Council of Ontario (i.e. Minister of Transportation) has been empowered and authorized to make regulations in respect to the application of the H.T.A. or any provision of the H.T.A. or of a regulation “to a specified place or class of place that is not a highway”. In short, the Lieutenant Governor in Council of Ontario is legally empowered by s. 1.1 of the H.T.A. to pass a regulation that would make the racing and stunting offence under s. 172(1) applicable to a parking lot on private property, even though it is not a highway within the meaning of the H.T.A.

[9] Finally, after the prosecution had completed its case and after submissions were made by the prosecution on the applicability of s. 172(1) of the H.T.A. to a parking lot on private property, the ruling on its applicability was reserved and adjourned to December 15, 2023, for the continuation of the trial if needed. These, therefore, are the written reasons for the ruling on the applicability of the stunt driving offence under s. 172(1) to a parking lot on private property that are being released as of November 21, 2023:

2. Analysis

(A) Does s. 172(1) of the Highway Traffic Act apply to private property?

(1) The General Rule

[10] The “general rule” on whether the H.T.A. applies to private property was established by the Court of Appeal for Ontario in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253.

[11] Doherty J.A. writing for the Court of Appeal in R. v. Hajivasilis, had held that their obiter in Shah and Becamon, 2009 ONCA 113, [2009] O.J. No. 478 (O.C.A.), which had pronounced that the entire H.T.A. had been limited in application to only highways as defined under the H.T.A. had been incorrect and should not be followed. The obiter in question had been contained in para. 23 and in para. 35 of Shah and Becamon which had been expressed as the following [emphasis is mine below]:

The entire HTA, including the graduated licensing system, is limited to "highways". Thus the essential question on this appeal, in terms of determining whether Becamon's driving in the strip mall was "authorized by law", is whether or not, when the accident occurred, Becamon was driving on a "highway".

I disagree. The legislature has struck the balance explicitly -- the graduated licensing scheme applies to the operation of a motor vehicle on a "highway". Indeed, not surprisingly, the entire HTA applies to what its title foreshadows, highways.

[12] In Shah and Becamon, 2009 ONCA 113, [2009] O.J. No. 478, the Court of Appeal had also considered the meaning a “highway” as it had been defined in the H.T.A. and held, at paras. 25 to 31, that "the paramount use" test from Gill v. Elwood and the "established primarily for" formulation in Mansour supported the trial judge's conclusion that the strip mall parking lot is essentially a private parking lot for the customers of the stores in the mall, although it was also being used as a shortcut for some thru-traffic from Wilson Avenue to Bathurst Street [emphasis is mine below]:

The trial judge concluded that the accident took place on private property, not a highway. In so doing, he relied extensively on two decisions, Gill v. Elwood, [1970] 2 O.R. 59, and R. v. Mansour, [1979] 2 S.C.R. 916.

Gill v. Elwood is a case very similar to the present appeal. It involved a small mall with an entrance, exit and marked parking spaces. This court held that the premises were not a highway. Aylesworth J.A. said, at pp. 59-60:

Something first we think should be said about the nature of the premises which it is sought to be made a highway or part of the highway and the use thereof. The premises involved consist of a large area upon which are delineated ways or routes, including an exit and an entrance and in which are delineated spaces for parking of vehicles. The people invited to park are not the public as a whole, but the people who have business to transact with the stores surrounding the parking space. Thus the premises involved are of a composite nature and in our view in deciding the applicability or non-applicability to those premises of the Act, one is not permitted to cut up the premises as it were into various parcels and minutely analyse the particular uses of the particular parcels. On the contrary, in our view, and realistically the premises must be viewed as a whole and so viewing the premises the paramount use thereof will emerge as a parking lot with ingress and egress to and fro and with passages within it, but all subordinate to the paramount use of parking vehicles. [Emphasis added.]

In Mansour, the Supreme Court of Canada embarked upon a similar analysis and reached a parallel conclusion. Estey J.A. stated, at p. 921:

I conclude that the term "highway" in its ordinary and popular sense and as illustrated by the words employed in s. 1(1) 11 of the Act does not embrace the concept of a parking lot, and particularly, a parking lot adjacent to an apartment building, and presumably one which was established primarily for the provision of parking to its inhabitants. [Emphasis added.]

There is no doubt that "the paramount use" test from Gill v. Elwood and the "established primarily for" formulation in Mansour support the trial judge's conclusion that the strip mall parking lot, although used for some thru-traffic from Wilson Avenue to Bathurst Street, was essentially a private parking lot for the customers of the stores in the mall.

On appeal, the appellant attempts to overcome the trial judge's conclusion with three submissions.

First, the appellant submits that Gill v. Elwood and Mansour should not govern because these cases were decided under a different definition of "highway" in the HTA. Unlike the definition in the HTA in force when these cases were decided in the 1970s, the current definition, after listing the various locations which can be a highway, including "square" and "place", continues with the new words "any part of which" is intended for or used by the general public for the passage of vehicles. The appellant contends that "a part" of the strip mall traffic area is regularly used by some drivers as a shortcut from Wilson Avenue to Bathurst Street; accordingly, this area is "a highway".

I do not accept this interpretation. All of the locations that constitute a "highway" according to the definition found in the HTA are qualified by the adjectival phrase "common and public". These words govern the analysis, whether the location is being considered in its entirety or in part. In the present case, the evidence was clear; although the parking lot was used by some drivers as a shortcut, both the intended use and actual use were overwhelmingly as a parking area for customers. Accordingly, the trial judge was correct to state near the end of his reasons: "I am not convinced that Gill and Mansour are no longer the law of this province by virtue of the amendments to the definition of ["highway" in the] Highway Traffic Act in 1983."

[13] Also, prior to the Ontario Court of Appeal’s decision in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, Ontario courts had followed that incorrect obiter from Shah v. Becamon by finding that the H.T.A. did not apply to private property. Therefore, those decisions rendered prior to January 21, 2013, that had held that the H.T.A. does not apply to private property should be disregarded, except for the ones which had held that the H.T.A. does not apply to “parking lots” on private property and where it had been determined that the private property in question was primarily used as a parking lot.

[14] But more importantly, Doherty J.A. at para. 4 in R. v. Hajivasilis, had held that the operation of the H.T.A. is limited when the term "highway" is expressly contained in a statutory provision. On the other hand, Doherty J.A. concluded that where a provision in the H.T.A. does not mention or refer to a “highway”, or to a “highway” by implication or definition, then that provision is not so limited and it context may apply to the event or circumstances in question that occurred on a non-highway or on private property, even if a particular act or omission in respect to the operation of a motor vehicle did not physically occur on a highway, as defined under s. 1(1) of the H.T.A. Moreover, Doherty J.A. also concluded that there is nothing in the overall structure of the H.T.A. or its purpose that would compel the reading of the word "highway" into sections or provisions of the H.T.A. in which the word “highway” does not appear [emphasis is mine below]:

I agree with the position advanced by the appellant. I would hold that the obiter in Shah limiting the operation of the "entire HTA" to "highways" is wrong and should not be followed. Many provisions of the HTA are by their terms limited to "highways". Other provisions, however, are not so limited. Nothing in the overall structure of the HTA or its purpose compels the reading of the word "highway" into sections in which it does not appear. Section 199 is one such section. I would hold that the reporting requirement in s. 199 generally applies even if the accident does not occur on a "highway" as defined in the HTA.

[15] Furthermore, Doherty J.A. in R. v. Hajivasilis, at paras. 45 to 47, also reasoned that far too much weight has been placed on the title of the legislation, namely the Highway Traffic Act, to suggest that a word that is given a specific definition in the text of the statute effectively becomes a description of the scope of the statute because that word is used in the title. In addition, Doherty J.A. also looked at the title of the French version of the H.T.A. as "Code de la route" and considered it along with the definition of "highway" in the French version as "voie publique" and found that the French version of the H.T.A. would suggest that it is not limited in its application to only "highways" and since the French and English versions of a statute are equally authoritative then the H.T.A. is not limited in its application to only "highways" [emphasis is mine below]:

The Title

I conclude my search for context in the legislation by reference to the title of the legislation - the Highway Traffic Act.6 In Shah, at para. 35, the court stated:

Indeed, not surprisingly, the entire HTA applies to what its title foreshadows, highways.

The title of an enactment can assist in the interpretation of a provision within the enactment: see Temelini v. Ontario Provincial Police (Commissioner) (1999), 44 O.R. (3d) 609 (C.A.), at pp. 620-21. In my view, it places far too much weight on the title of the HTA to suggest that a word that is given a specific definition in the text of the statute effectively becomes a description of the scope of the statute because that word is used in the title. Had the legislature intended the word "highway" to define the scope of the HTA, I would have expected a specific statutory provision addressing the scope of the Act, and not merely a definition of the word "highway" applicable to the legislation.

I also agree with counsel for the appellant that a comparison of the English and French titles of the HTA supports his position. The French title of the HTA is "Code de la route". The French version defines "highway" as "voie publique". The title of the French version of the HTA considered along with the definition of "highway" in the French version suggests that the Act is not limited to "highways". The French and English versions of a statute are equally authoritative: Legislation Act, 2006, S.O. 2006, c. 21, Sch. F., s. 65.

[16] Moreover, Doherty J.A. in R. v. Hajivasilis, explained in general terms what the object of Ontario’s H.T.A. is at paras. 48 to 53. He first indicated that there is no preamble to the H.T.A. and nothing in the Act that speaks directly to the objects of the H.T.A. He then canvassed Court of Appeal decisions where it had been held that the H.T.A. is "public welfare legislation designed to protect those who use the roads of the province and “is the regulation of the use of the highways by persons on foot and in vehicles”. However, Doherty J.A. also recognized that regulations that protect the public using the province's roads is not necessarily limited to roads that fall within the meaning of "highway" in the H.T.A. and that public safety concerns might well demand regulation in respect of traffic in large private parking facilities even though those facilities are not used by the general public for "the passage of vehicles" [emphasis is mine below]:

B. THE OBJECT OF THE HTA

The modern approach to statutory interpretation looks to the purpose or object of the statute as an aid in interpreting the statute's provisions. This approach is legislatively mandated in Ontario by s. 64 of the Legislation Act, 2006:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

There is no preamble to the HTA and nothing in the Act speaks directly to the objects of the HTA. Nor did counsel in their comprehensive presentations refer to any of the usual secondary sources that might assist in pinpointing the objects of the Act. In attempting to discern the object of the HTA, one is left with the circular proposition that the words of the HTA enlighten the reader as to the objects of the HTA which in turn assist the reader in giving meaning to the words in the HTA. As Rothstein J. recently cautioned in Canada v. Craig, 2012 SCC 43, 347 D.L.R. (4th) 385, at para. 30, interpreting words by reference to unexpressed legislative intention purportedly discovered through a purposive reading of those words must be avoided: see also Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622, at para. 43.

Bearing that caution in mind, the case law does identify in broad terms the object of the HTA. In R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at para. 33, the court refers to the HTA as "public welfare legislation designed to protect those who use the roads of the province." Earlier, in Hydro-Electric Power Commission of Ontario v. Bruell Float Service Ltd. (1974), 3 O.R. (2d) 108, at p. 114, aff'd on other grounds , [1976] 1 S.C.R. 9, this court said:

The general purpose of the Highway Traffic Act is the regulation of the use of the highways by persons on foot and in vehicles; that is not to say that certain provisions of the statute will not apply to the use of vehicles other than on a highway, but in an over-all sense the Legislature is directing itself to the regulation of vehicular traffic and not to commerce conducted in or by means of vehicles.

In my view, regulation to protect the public using the province's roads is not necessarily limited to roads that fall within the meaning of "highway" in the Act. Public safety concerns might well demand regulation in respect of traffic in large private parking facilities even though those facilities are not used by the general public for "the passage of vehicles". Similarly, public safety concerns might well demand the regulation of private parking facilities as incidental to regulations maintaining the safety of the "highway" leading into and out of that facility.

Insofar as s. 199 is concerned, I think it can be argued that public safety is enhanced by a general reporting requirement with respect to accidents involving injury or a certain level of property damage. Lessons learned from the reports with respect to those accidents may enhance the overall safety of the roads by identifying safety concerns that have application beyond the immediate circumstances of the particular accident.

When I place the language of s. 199 in the context of its related provisions, the HTA as a whole, and the object of the HTA, I see no reason to read the word "highway" into the Act. In my view, the section makes perfect sense and is consistent with the object of the HTA if it is read as written.

[17] Therefore, for sections or provisions of the H.T.A. that do expressly refer to an offence having to be committed on a “highway” or by implication or by definition of having to be committed on a “highway”, then those sections or provisions are still limited in application to only a “highway” within the meaning of the H.T.A., but where the section or provision does not make reference specifically or by implication or definition to a “highway”, then that particular section or provision may in context apply to such locations or places that are not a “highway” within the meaning of the H.T.A.

[18] Consequently, the H.T.A. may in context apply to private property unless the elements of an offence set out in the H.T.A. expressly, by implication or by definition requires that it has to occur on a “highway” within the meaning of the H.T.A. or unless the Ontario Legislature has expressly stated that a particular statutory provision in the Highway Traffic Act specifically applies to private property or to non-highways.

(2) The stunt driving offence set out in s. 172(1) of the H.T.A.

Racing, stunts, etc., prohibited 172(1) No person shall drive a motor vehicle on a highway in a race or contest, on a bet or wager or while performing a stunt.

[19] Subsection 172(1) of the H.T.A. does expressly state that the prohibition against stunt driving is in respect to it being done on a “highway”, as a highway that is defined under s. 1(1) of the H.T.A. Ergo, the “general rule” that the H.T.A. applies to only highways when the statutory provision explicitly refers to a highway that has been established by the Court of Appeal for Ontario in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, presumptively applies to the stunt driving offence set out in s. 172(1) of the H.T.A.

[20] Accordingly, under the “general rule” established by the Court of Appeal for Ontario in R. v. Hajivasilis, s. 172(1) would at first glance appear to apply only to driving a motor vehicle on a “highway” as defined under the H.T.A. and not to driving conduct committed on non-highways or on private property which is not intended to be nor primarily used by the public for the passage of motor vehicles. However, if some other statutory provision, regulation, definition, or by necessary implication under the H.T.A., expressly states that s. 172(1) would apply to a parking lot on private property, then the “general rule” in respect to the application of s. 172(1) being limited to a “highway” would be superseded by that other statutory provision, regulation, definition, or by necessary implication under the H.T.A.

(3) The definition of “highway” under s. 1(1) of the H.T.A.

[21] A ‘highway” is defined in s. 1(1) of the H.T.A. and means “a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof [emphasis is mine below]:

Definitions 1(1) In this Act,

“highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; (“voie publique”)

(4) Parking lots on private property are not highways within the meaning of the H.T.A.

[22] The Supreme Court of Canada in R. v. Mansour, [1979] S.C.J. No. 77, had to consider the question of whether the term “highway” under Ontario’s H.T.A., in force at that time, had included “a parking lot adjacent to an apartment building and to which the public had access”. It was decided by the Supreme Court that for the particular circumstances, the term "highway" in its ordinary and popular sense and as illustrated by the words employed in the definition of ‘highway”, as if was defined at that time in the H.T.A., did not embrace the concept of a parking lot, especially a parking lot adjacent to an apartment building, and presumably one which had been established primarily for the provision of parking for its inhabitants, even though the public had access to the parking lot.

I have not overlooked the fact that the definition employs the expansive word "includes" rather than the word "means." In applying this definition to the facts in question, I adopt the statement in Maxwell on Interpretation of Statutes, 12th ed., p. 270 which reads as follows:

Sometimes, it is provided that a word shall mean what the definition section says it shall mean: in this case, the word is restricted to the scope indicated in the definition section. Sometimes, however, the word "include" is used "in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include." In other words, the word in respect of which "includes" is used bears both its extended statutory meaning and "its ordinary, popular, and natural sense whenever that would be properly applicable."

I conclude that the term "highway" in its ordinary and popular sense and as illustrated by the words employed in s. 1(1) 11 of the Act does not embrace the concept of a parking lot, and particularly, a parking lot adjacent to an apartment building, and presumably one which was established primarily for the provision of parking to its inhabitants.

It seems clear therefore that the term highway, in respect of which a licence to drive is, in Ontario, required, does not include a parking lot "adjacent to an apartment building and to which the public had access." …

[23] Similarly in Gill v. Elwood, (1969), 9 D.L.R. (3d) 681, which had been a civil matter, the Court of Appeal for Ontario held, at paras. 1 to 3, that the shopping plaza premises at issue consisted of a large area upon which were delineated ways or routes, including an exit and an entrance, and in which there were delineated spaces for the parking of vehicles, and that its use had been for the parking of vehicles, and was therefore, not a highway within the meaning of the H.T.A. Moreover, the Court of Appeal held that the people invited to park at the plaza premises are not the public as a whole, but the people who have business to transact with the stores surrounding the parking space [emphasis is mine below]:

… That issue is whether or not the plaza premises in question in this action comprise a highway or part of a highway as highway is defined in the Highway Traffic Act, R.S.O. 1960, c. 172, with the consequence, if the Act applies, of importing into the conduct of those using that plaza the guidance of the rules of traffic and the like spelt out in the Act. Something first we think should be said about the nature of the premises which it is sought to be made a highway or part of the highway and the use thereof. The premises involved consist of a large area upon which are delineated ways or routes, including an exit and an entrance and in which are delineated spaces for parking of vehicles. The people invited to park are not the public as a whole, but the people who have business to transact with the stores surrounding the parking space. Thus the premises involved are of a composite nature and in our view in deciding the applicability or non-applicability to those premises of the Act, one is not permitted to cut up the premises as it were into various parcels and minutely analyse the particular uses of the particular parcels. On the contrary, in our view, and realistically the premises must be viewed as a whole and so viewing the premises the paramount use thereof will emerge as a parking lot with ingress and egress to and fro and with passages within it, but all subordinate to the paramount use of parking vehicles.

Having so ascertained the salient features pertaining to the premises themselves and turning to the Act and the definition of the Act, one finds by para. 10 of s. 1(1) of the Highway Traffic Act that "highway" is to include and I quote --

. . . a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct, or trestle, designed and intended for, or used by, the general public for the passage of vehicles;

We think of great significance in that designation are the concluding words "designed and intended for, or used by, the general public for the passage of vehicles". We think too that those words taken together with all of the words comprising the clause in their cumulative effect fall short of including therein as a highway the premises with which the case deals.

[24] Furthermore, in R. v. Tresham, [1998] O.J. No. 1744 (Ont. Ct. (Gen. Div.)), at para. 35, Boyko J. noted that the term "highway", as defined under the Ontario Highway Traffic Act, although a fairly expansive definition unlike similar legislation in other provinces, does not expressly include the term "parking lot". Furthermore, Boyko J. held that even though the definition does include the term "place" and specifies "any part of which is intended for or used by the general public for the passage of vehicles," the provision did not apply to a parking lot since the definition states for the "passage" of vehicles and not for the "parking" of vehicles [emphasis is mine below]:

… The term "highway", as defined under the Ontario Highway Traffic Act, although a fairly expansive definition unlike similar legislation in other provinces, does not expressly include the term "parking lot". While the definition does include the term "place" and specifies "any part of which is intended for or used by the general public for the passage of vehicles," I do not find that this provision applies to a parking lot. It states for the "passage" of vehicles and not for the "parking" of vehicles. In this regard the Supreme Court of Canada decision in Mansour, supra, applies, that the definition of highway under the Ontario Highway Traffic Act "does not embrace the concept of a parking lot."

[25] And, in the civil matter of Shah v. Becamon, 2009 ONCA 113, [2009] O.J. No. 478, the Court of Appeal for Ontario confirmed, at paras. 30 and 31, that the parking lot on private property in that case was not a highway within the meaning of the H.T.A., even though the parking lot of the strip mall was used by some drivers as a shortcut from Wilson Avenue to Bathurst Street, since both the intended use and actual use of the parking lot were overwhelmingly a parking area for customers [emphasis is mine below]:

First, the appellant submits that Gill v. Elwood and Mansour should not govern because these cases were decided under a different definition of "highway" in the HTA. Unlike the definition in the HTA in force when these cases were decided in the 1970s, the current definition, after listing the various locations which can be a highway, including "square" and "place", continues with the new words "any part of which" is intended for or used by the general public for the passage of vehicles. The appellant contends that "a part" of the strip mall traffic area is regularly used by some drivers as a shortcut from Wilson Avenue to Bathurst Street; accordingly, this area is "a highway".

I do not accept this interpretation. All of the locations that constitute a "highway" according to the definition found in the HTA are qualified by the adjectival phrase "common and public". These words govern the analysis, whether the location is being considered in its entirety or in part. In the present case, the evidence was clear; although the parking lot was used by some drivers as a shortcut, both the intended use and actual use were overwhelmingly as a parking area for customers. Accordingly, the trial judge was correct to state near the end of his reasons: "I am not convinced that Gill and Mansour are no longer the law of this province by virtue of the amendments to the definition of ["highway" in the] Highway Traffic Act in 1983."

[26] Recently, Doherty J.A. for the Court of Appeal for Ontario in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, confirmed at para. 10, that most privately owned parking lots are not "highways" as defined in the H.T.A. and referred to the holdings in R. v. Mansour, [1979] 2 S.C.R. 916 (S.C.C.); Gill v. Elwood, [1970] 2 O.R. 59 (O.C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Ct. (Gen. Div.)) [emphasis is mine below]:

The phrase "intended for or used by the general public for the passage of vehicles" limits the meaning of "highway". If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of "highway". Most privately owned parking lots are not "highways" as defined in the HTA: see R. v. Mansour, [1979] 2 S.C.R. 916; Gill v. Elwood, [1970] 2 O.R. 59 (C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.). It is accepted that the parking lot where the respondent allegedly struck the parked vehicle does not fall within the meaning of "highway" in the HTA.

[27] In addition, Doherty J.A. in R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253, at para. 1, emphasized that their holdings in Shah v. Becamon, 2009 ONCA 113, [2009] O.J. No. 478 (O.C.A.), that the graduated licence scheme set out in the H.T.A. applied only to the operation of a motor vehicle on a "highway" as defined in the H.T.A. and that the shopping plaza parking lot where an accident had occurred was not a “highway” within the meaning of the H.T.A. had been correctly decided:

In Shah v. Becamon, 2009 ONCA 113, 94 O.R. (3d) 297, this court held that the graduated licence scheme set out in the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA" or the "Act") applied only to the operation of a motor vehicle on a "highway" as defined in the HTA. The court further held that the shopping plaza parking lot where the accident occurred was not a "highway" within the definition in the HTA. No one questions the correctness of either holding.

(a) Could the “general public” use or have access to the parking lot on the private property of 11613 Bramalea Road in Brampton, Ontario for the passage of their motor vehicles?

[28] The definition for “highway” that is set out in s. 1(1) of the H.T.A. also contains the phrase “any part of which is intended for or used by the general public for the passage of vehicles”. As such, only the portion of the church parking lot where members of the public may use primarily for the passage of vehicles may fall within the definition of a highway, but the portion of the parking lot used mainly for parking and not for the passage of vehicles would not be a “highway” within the meaning of the H.T.A. However, if the “general public” is not permitted to use or access the private property at 11613 Bramalea Road in Brampton, Ontario, which has been described as a parking lot for a church, then the parking lot would not be a “highway” within the meaning of the H.T.A.

[29] Also, at para 10, in Hajivasilis, Doherty J.A. held that the phrase "intended for or used by the general public for the passage of vehicles" constrains the meaning of "highway", so that if a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of "highway" [emphasis is mine below]:

The phrase "intended for or used by the general public for the passage of vehicles" limits the meaning of "highway". If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of "highway". Most privately owned parking lots are not "highways" as defined in the HTA: see R. v. Mansour, [1979] 2 S.C.R. 916; Gill v. Elwood, [1970] 2 O.R. 59 (C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.). It is accepted that the parking lot where the respondent allegedly struck the parked vehicle does not fall within the meaning of "highway" in the HTA.

[30] Furthermore, for the second part of Doherty J.A.’s holding in para. 10 in Hajivasilis, that states the property where a motor vehicle is being driven would not fall within the meaning of “highway” under the H.T.A., if access to the property is for a limited purpose other than for the passage of vehicles, such as for the parking of vehicles, would mean that a parking lot on private property by definition is not a highway.

[31] Ergo, the church parking lot that is adjacent to the apartment building where the defendant resides and where the defendant had been observed making donuts in the motor vehicle he had been observed operating on January 10, 2023, for the purposes of the H.T.A. is not a highway as defined under the H.T.A. However, s. 172(1) may still apply to the parking lot on private property if there is some statutory provision or regulation that expressly states that s. 172(1) applies to parking lots on private property.

(5) The Lieutenant Governor in Council may make regulations providing that the H.T.A. or any provision of the H.T.A. or of a regulation made under the H.T.A. applies to a specified place or class of place that is not a highway.

(a) S. 1.1 of the H.T.A. provides a broad regulation-making power that can extend the application of the H.T.A. to a specified place or class of place that is not a highway.

[32] Doherty J.A. also considered in Hajivasilis, in his determination of whether the H.T.A. applied only to highways, the effect of s. 1.1 of the H.T.A. (which had been added in 2007), which would allow the Lieutenant Governor in Council to make a regulation that would make the H.T.A. or any provision of the H.T.A. or of a regulation made under the H.T.A. apply to a specified place or class of place that is not a highway:

Application of Act to places other than highways 1.1 The Lieutenant Governor in Council may make regulations providing that this Act or any provision of this Act or of a regulation applies to a specified place or class of place that is not a highway.

[33] Presumably, the addition of s. 1.1 to the H.T.A. is an indication that the legislators had been aware of the difficulty of meeting the objective of the H.T.A. of being able to promote traffic safety through the regulation of vehicular traffic with the current definition of “highway” set out in s. 1(1) and how that definition limits the application of certain provisions of the H.T.A. to only highways, considering that people do not drive or operate motor vehicles only or exclusively on public roads.

[34] After reviewing s. 1.1 of the H.T.A., Doherty J.A. held at paras. 42 to 44 of R. v. Hajivasilis that s. 1.1 was added to the H.T.A. by the Safer Roads for a Safer Ontario Act, 2007, S.O. 2007, c. 13, s. 2, and that s. 1.1 contemplates the extension of the entire H.T.A. or parts of it to places other than highways. Moreover, Doherty J.A. also found that this broad regulation-making power is inconsistent with the obiter in Shah and Becamon that would limit the H.T.A. to “highways”. In addition, Doherty J.A. reasoned that s. 1.1 is a broad regulation-making power which is consistent with an interpretation of the H.T.A. that would extend the application of the H.T.A. beyond highways [emphasis is mine below]:

Section 1.1 was added to the HTA by the Safer Roads for a Safer Ontario Act, 2007, S.O. 2007, c. 13, s. 2. Mocha J. interpreted s. 1.1 as indicating that provisions of the HTA could extend to places beyond a "highway" only by the exercise of the regulation-making power in s. 1.1: at paras. 19-20. She read the section as supporting the obiter in Shah.

Section 1.1 does not suggest that, absent an appropriate regulation, all provisions of the HTA are limited to "highways". The section permits the extension by regulation of the HTA, or a provision of the HTA, to places other than highways. Thus, a section that by its terms was limited to "highways" could be extended to other places by regulation without the need to amend the provision itself. Section 1.1 offers no support for the contention that absent an appropriate regulation, all provisions of the HTA are referable only to "highways".

Section 1.1 does, however, provide context in a somewhat different way. The section contemplates the extension of the entire HTA or parts of it to places other than highways. This broad regulation-making power is inconsistent with the obiter in Shah that would limit the HTA to "highways". The regulation-making power in s. 1.1 is, however, entirely consistent with an interpretation of the HTA that extends beyond highways.

[35] Therefore, by virtue of s. 1.1 of the H.T.A., the Lieutenant Governor in Council is empowered and authorized to enact a regulation that would make the H.T.A. or any provision of the H.T.A. or of a regulation made under the H.T.A. applies to a specified place or class of place that is not a highway.

[36] In addition, Doherty J.A. held in Hajivasilis, at para. 43, that by virtue of s. 1.1 of the H.T.A., a section in the H.T.A. that by its terms was limited to "highways" could be extended to other places by regulation without the need to amend the provision itself.

[37] Ergo, as it applies to the case at bar on whether the stunt driving offence under s. 172(1) applies to a parking lot on private property, it would be initially governed by the “general rule”, which by its terms contained in that section would limit its application to "highways", but by virtue of s. 1.1 of the H.T.A. its application could be extended by regulation, so as to apply to parking lots on private property without the need to amend s. 172(1) itself.

(6) S. 172 of the H.T.A. applies to public and private parking lots by virtue of O. Reg. 455/07

[38] Subsection 5(1) of the Races, Contests and Stunts Regulation (Highway Traffic Act, R.S.O. 1990, c. H.8, s. 172(1)), O. Reg. 455/07, expressly states where the stunt driving offence under s. 172 would apply. Specifically, it states that “[p]ursuant to section 1.1 of the Act, section 172 of the Act applies to a specified place” while s. 5(5) expressly states where the stunt driving offence under s. 172 would not apply. In addition, s. 5(6) of the same regulation expressly states that a “specified place” means “any parking lot, beach, park, bike path or trail, farm field or sports field” and a “parking lot” is then defined in s. 5(6) and includes both private and public parking lots: [emphasis is mine below]:

2(1) For the purposes of section 172 of the Act, “race” and “contest” include any activity where one or more persons engage in any of the following driving behaviours:

1. Driving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.
2. Driving a motor vehicle in a manner that indicates an intention to chase another motor vehicle.
3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by, i. driving a motor vehicle at a rate of speed that is a marked departure from the lawful rate of speed, ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, or iii. repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed. O. Reg. 455/07, s. 2 (1).

(2) In this section,

“marked departure from the lawful rate of speed” means a rate of speed that may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway.

Definition, “stunt” 3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

1. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.
2. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.
3. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.
4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.

Exceptions 4(1) Despite section 2, “race” and “contest” do not include, (a) a rally, navigational rally or similar event that is conducted, (i) under the supervision of the Canadian Association of Rally Sport, (ii) under the supervision of a club or association approved in writing by the Ministry, or (iii) with the written approval of the road authority or road authorities having jurisdiction over the highway or highways used; (b) motor vehicle owners engaged in a tour, scenic drive, treasure hunt or other similar motoring event in which the participants drive responsibly and in a manner that indicates an overall intention to comply with the provisions of the Act; or (c) an event held on a closed course with the written approval of the road authority having jurisdiction over the highway, including any event lawfully using any of the trademarks “CART”, “Formula One”, “Indy”, “IndyCar”, “IRL” or “NASCAR”.

(2) Despite sections 2 and 3, “race”, “contest” and “stunt” do not include any activity required for the lawful operation of motor vehicles described in subsections 62 (15.1) or 128 (13) of the Act, or the lawful operation of an emergency vehicle as defined in subsection 144 (1) of the Act.

Application of Act 5(1) Pursuant to section 1.1 of the Act, section 172 of the Act applies to a specified place. O. Reg. 598/21, s. 1.

(2) For greater certainty, a provision in section 172 of the Act that governs the suspension of a driver’s licence or the impoundment of a motor vehicle applies to a specified place. O. Reg. 598/21, s. 1.

(3) Where section 172 of the Act applies to a specified place, the following provisions of this Regulation also apply in respect of the place:

1. Paragraph 2 of subsection 2 (1).
2. Paragraph 1, 2, 3, 5 or 6 of section 3. O. Reg. 598/21, s. 1.

(4) Where section 172 of the Act applies to a specified place, the following provisions of the Act also apply in respect of the place:

1. Subsection 7 (5).
2. Subsection 14 (1).
3. Section 33.
4. Subsection 35 (3).
5. Section 82.
6. Section 134.
7. Section 212.
8. Section 216.
9. Subsection 217 (2).
10. Section 221. O. Reg. 598/21, s. 1.

(5) This section does not apply to, (a) a race track, motor speedway or go-cart track that is built specifically for that purpose in a specified place; or (b) an event similar to those described in section 4 that is held in a specified place with the written approval of the road authorities having jurisdiction over any highways from which there is road access to the specified place. O. Reg. 598/21, s. 1.

(6) In this section,

“driver” includes a person with care, charge or control of a motor vehicle; (“conducteur”)

“parking lot” includes, (a) any parking lot, garage or structure, whether public or private, paved or unpaved, flat or multilevel, above or below grade, including any driveway or road that connects the parking lot to a highway, (b) any private, commercial or industrial parking lot or empty lot from which the public would ordinarily be excluded, and (c) any parking lot into which drivers are expressly or impliedly invited or permitted to enter, with or without payment, and no matter whether payment is made or whether the driver entered with or without permission; (“parc de stationnement”)

“specified place” means any parking lot, beach, park, bike path or trail, farm field or sports field. O. Reg. 598/21, s. 1.

[39] Moreover, s. 5 of the present Races, Contests and Stunts Regulation was amended on August 26, 2021, by s. 1 of O. Reg. 598/21, that was filed on August 27, 2021, and those amendments by virtue of s. 2 of O. Reg. 598/21 came into legal effect and force on September 12, 2021 [emphasis is mine below]:

1. Section 5 of Ontario Regulation 455/07 is revoked and the following substituted:

Application of Act 5. (1) Pursuant to section 1.1 of the Act, section 172 of the Act applies to a specified place.

Commencement 2. This Regulation comes into force on the later of September 12, 2021 and the day it is filed.

[40] The previous s. 5 of O. Reg 455/07 had been a provision which originally established when the original regulation came into force in 2007 and was then revoked and substituted with the present s. 5, which states that s. 172 applies to a specified place. The previous s. 5 which is produced below had not made reference to where s. 172 would have applied:

5. Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 455/07, s. 5.

[41] Ergo, as of September 12, 2021, the stunt driving offence set out in s. 172(1) of the H.T.A. would legally apply to parking lots on both public and private property, and even to private parking lots for which the public would ordinarily be excluded, by virtue of s. 5 of O. Reg. 455/07, as amended by O. Reg. 598/21.

(7) As the statutory provisions in O. Reg. 455/07 (as amended) Is In conflict with the “general rule” established in R. v. Hajivasilis, do the statutory provisions which state that s. 172(1) applies to parking lots on private property supersede the “general rule” which limits the application of s. 172(1) to only highways?

[42] To reiterate, s. 5(1) of the Races, Contests and Stunts Regulation, O. Reg 455/07, as amended by O. Reg. 598/21 on August 26, 2021, in which the amendments came into legal effect on September 12, 2021, expressly states that the “stunt driving” offence contained in s. 172(1) applies to a “specified place”. A “specified place” is defined under s. 5(6) of O. Reg 455/07 and includes a parking lot. And, also under s. 5(6) a parking lot is defined to include a parking lot on public and private property that also includes any driveway or road that connects the parking lot to a highway and also includes parking lots which a member of the public would be expressly or implicitly invited or ordinarily excluded or not given permission to enter. Therefore, by statutory pronouncement, s. 172(1) apples to a parking lot on private property which would put the regulations in conflict with the “general rule” that the application of the H.T.A. is limited to a “highway” if the word “highway” is expressly mentioned in the particular statutory provision. As such, since s. 172(1) does expressly state that the offence has to be committed on a “highway”, would s. 5(1) of the Races, Contests and Stunts Regulation (O. Reg 455/07) which expressly states that s. 172(1) applies to a “specified place” which includes a parking lot on private property supersede the “general rule” that limits the application of the H.T.A. to only a highway when the word highway is expressly mentioned in s. 172(1)?

[43] This conflict between the regulation and the “general rule” established in R. v. Hajivasilis is governed by the principle of “legislative paramountcy”, which provides that validly enacted legislation is paramount over the common law, as long as it does not infringe on the Charter of Rights and Freedoms. Professor Ruth Sullivan in her article, “Statutory interpretation in a new nutshell”, The Canadian Bar Review, Vol. 82, No. 1, pp. 51-82, explained at pp. 73 and 75 that in the paramountcy model of argument two things must be established: (1) first, that a conflict exists between two applicable provisions or rules, and (2) second, that one of them is paramount and therefore applies to the exclusion of the other. Professor Sullivan also noted that over the years the courts have established a number of paramountcy rules, in which some are based on hierarchy, namely that entrenched constitutional law prevails over legislation, federal legislation prevails over provincial legislation, and that legislation prevails over common law. In addition, Professor Sullivan remarked that because rules made by the legislature prevail over judge-mail rules, it would be relatively easy to establish that legislation is meant to exclude the common law and to the extent that the legislation changes the common law, Professor Sullivan explained that it would operate like an amendment, so that in effect it “repeals” inconsistent common law [emphasis is mine below]:

(1) Paramountcy

An interpreter who wishes to use the paramountcy model of argument must establish two things: first, that a conflict exists between two applicable provisions or rules, and second, that one of them is paramount and therefore applies to the exclusion of the other.

Establishing that there is a conflict between legal rules is relatively straightforward: two rules are in conflict if and only if it is impossible to comply with both. Establishing which rule is paramount in cases of conflict is rather more challenging. Over the years the courts have established a number of paramountcy rules. Some are based on hierarchy:

• entrenched constitutional law prevails over legislation
• federal legislation prevails over provincial legislation
• legislation prevails over common law

Because rules made by the legislature prevail over judge-mail rules, it is relatively easy to establish that legislation is meant to exclude the common law. To the extent legislation changes the common law, it operates like an amendment: in effect it “repeals” inconsistent common law. However, when legislation codifies, or partially codifies, the common law, the outcome can be difficult to predict, for the court must determine whether the legislation was intended to definitely displace the common law.

[44] Moreover, Professor Sullivan in her textbook, "Sullivan on the Construction of Statutes", 7th ed. (Markham, Ont.: LexisNexis, June 2022), in the 17th Chapter entitled "Common Law", under Parts 1 and 2, also wrote that it follows from the principle of legislative sovereignty that validly enacted legislation is paramount over the common law and that the legislature that is acting within its constitutionally defined jurisdiction can change, add to or displace the common law as it thinks appropriate and the courts must give effect to that intention. Moreover, Professor Sullivan noted that even though legislation is paramount, it is presumed that legislatures respect the common law and do not intend to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change the policy of the common law [emphasis is mine below]:

[1] Legislative paramountcy

It follows from the principle of legislative sovereignty that validly enacted legislation is paramount over the common law. Acting within its constitutionally defined jurisdiction, the legislature can change, add to or displace the common law as it thinks appropriate and the courts must give effect to that intention regardless of any reservations they might have concerning its wisdom. As stated by Martin J.A. in Schiell v. Morrison:

It is true that the legislation is an encroachment on the common-law doctrine ... but if it is clear that it was the intention of the Legislature in passing a statute to abrogate the common law, it must give way, and the provisions of the statute must prevail.

[2] Presumption against changing the common law

Although legislation is paramount, it is presumed that legislatures respect the common law and do not intend to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change the policy of the common law. In Lizotte v. Aviva Insurance Company of Canada, for example, the issue before the Supreme Court of Canada was “whether litigation privilege may be abrogated using general rather than clear, explicit and unequivocal language and, accordingly, whether s. 337 of the ADFPS [Act respecting the distribution of financial products and services] can be interpreted as establishing a valid abrogation of the privilege.” In concluding that it could not, the Court wrote:

Because litigation privilege is a common law rule, it will be helpful to reiterate the general principle that applies to legislative departures from such rules. This Court has held that it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect....

This presumption permits courts to insist on precise and explicit direction from the legislature before accepting any change. The common law is thus shielded from unclear or inadvertent legislative encroachment.

[45] Accordingly, s. 5 of the Races, Contests and Stunts Regulation (O. Reg 455/07), which expressly specifies that the stunt driving offence under s. 172(1) of the H.T.A. applies to a “specified place”, such as parking lots on private property, would supplant the “general rule” established by the Court of Appeal for Ontario in R. v. Hajivasilis, which limits the application of an offence provision of the H.T.A. to a highway if that offence provision expressly refers to the offence having to be committed on a highway as defined in the H.T.A.

3. Ruling

[46] Consequently, even though the stunt driving offence in s. 172(1) expressly refers to the requirement that the offence has to be committed on a “highway” as defined under the H.T.A., s. 5(1) of O. Reg. 455/07, countermands the requirement that the offence has to be committed on a “highway”, as it expressly states that s. 172(1) applies to a “specified place” that is defined under s. 5(6) of that regulation and a “specified place” expressly includes a “parking lot” as one of the specified places for which s. 172(1) would apply. Moreover, a “parking lot” is also defined under s. 5(6) of that regulation and includes parking lots that are on both public and private property, and even to private parking lots for which the public would ordinarily be excluded. Ergo, the “stunt driving” offence prescribed in s. 172(1) of the H.T.A. would apply to a parking lot on private property and the requirement that the stunt driving offence has to be committed on a “highway” within the meaning of the H.T.A. has been superceded by s. 5 of O. Reg. 455/07, as of September 12, 2021.

Dated at the City of Brampton on November 21, 2023.

QUON J.P. Ontario Court of Justice