You Picked a Fine Time to Leave Me "Loose
(With Apologies to Kenny Rogers)
The title might be flippant, but this subject is a
serious one of safety for all those who use our highways. The Ontario
Court of Appeal has recently confirmed that Section 84 of the Highway
Traffic Act, R.S.O. 1990, c. H.8 (levying sanctions against
commercial truck operators for wheels separating from vehicles)
is an absolute liability defence. As such, a carrier will be subject
to penalty under the Act strictly by virtue of the separation of
a wheel ? regardless of any explanation or excuse that might be
This case involved charges brought against two companies
? William Cameron Trucking and Transport Robert (1973) Lteé.
involving unrelated incidents of wheels separating from tractor-trailers
on the highway. Charges were laid under Section 84 of the Highway
Traffic Act. That provision stipulates that it is no defence
that the carrier exercised due diligence to avoid or prevent the
loss of a wheel. The penalty for the offence is a fine of not less
than $2,000.00 and not more than $50,000.00. A conviction will not
result in any imprisonment.
The carriers wanted to lead evidence explaining that
what occurred was beyond their control. They argued that the "absolute"
nature of the liability violated the guarantee of "security
of the person" under the Canadian Charter of Rights and Freedom
as well as the presumption of innocence thereunder.
The Court of Appeal's reasons are reported at R.
v. Transport Robert (1973) Lteé; R. v. 1260448 Ontario
Inc. (2003-11-14 ONCA C38402 and C39530).
The decision has great implications for the trucking
industry. Often there is an explanation as to the loss of a wheel.
Often third parties are to blame. Perhaps there was simply nothing
that could be done to prevent the incident. A conviction involves
both the sanctions listed above but also the ramifications of having
a regulatory record of an offence. A convicted trucker does not
have the ability to simply "claim over" against any third
party that might be responsible as might be done in Courts in a
civil suit for damages.
The Court of Appeal however ruled that there was no
breach of the Charter "presumption of innocence". It ruled
that it was open to the provincial legislature to define the offence
and in so doing eliminate the defence of "due diligence".
The issue then turned to whether or not there was
a breach of the "security of the person's "protection
of Section 7 of the Charter"". This provides that "everyone
has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles
of fundamental justice".
A defendant in alleging a violation of Section 7 must
establish both a violation of the right to life, liberty or security
of the person and that the deprivation of that right does not accord
with the principles of fundamental justice. The Court of Appeal
found that there was no violation of any "liberty" as
there was no possibility of any convicted individual being imprisoned
or placed on probation. The carrier submitted that their rights
will be infringed in not being able to provide a full explanation,
as being "without fault" they would then unfairly suffer
the stigma and effects of a conviction.
The Court of Appeal ruled that the absolute nature
of the offence does not violate the guarantee to "security
of the person" on a similar rationale that there was no risk
of imprisonment with a conviction.
In ruling that there was no breach of the Charter,
the Court noted that the section applies to only owners and operators
of commercial vehicles, operating for profit in a highly regulated
industry. The Court also noted that the maximum fine would be levied
only in exceptional circumstances. Carriers would still avoid a
conviction where it was established that a wheel became detached
as a result of a collision.
M. Gordon Hearn
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