February 2004

You Picked a Fine Time to Leave Me "Loose Wheel"
(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 offered.

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

This newsletter is published to keep our clients and friends informed of new and important legal developments. The articles are not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.