R. v. Hisey, (1985) 12 O.A.C. 191 (CA)

• Judge: Morden, Goodman and Grange, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 08, 1985
• Jurisdiction: Ontario
• Citations: (1985), 12 O.A.C. 191 (CA)

R. v. Hisey (1985), 12 O.A.C. 191 (CA)

MLB headnote and full text

R. v. Hisey

Indexed As: R. v. Hisey

Ontario Court of Appeal

Morden, Goodman and Grange, JJ.A.

December 20, 1985.

Summary:

The accused was convicted of an offence under s. 189(a) of the Highway Traffic Act for failing to stop when requested by a police officer. The accused appealed his conviction on the ground that s. 189 of the Highway Traffic Act was ultra vires of the powers of the Province of Ontario.

The Ontario Court of Appeal dismissed the appeal. The court held that s. 189(a) of the Highway Traffic Act was not ultra vires.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - The accused was convicted under the Highway Traffic Act for failing to stop when requested by a police officer - The accused appealed his conviction on the ground that s. 189 of the Act was ultra vires the Province of Ontario because it conflicted with s. 118 of the Criminal Code of Canada - The Ontario Court of Appeal held that the paramountcy test applies only where there is actual conflict or contradiction between federal and provincial legislation - The court stated that the test cannot be applied where the two pieces of legislation are in harmony with each other - See paragraph 8.

Constitutional Law - Topic 6444

Federal jurisdiction - Constitution Act, 1867, s. 91(27) - Criminal law - Matters not criminal - Section 189 of the Highway Traffic Act of Ontario made it an offence to refuse to stop when requested to do so by a police officer - The Ontario Court of Appeal held that s. 189(a) is legislation in relation to a provincial object and cannot be characterized as legislation in relation to criminal law - The court stated that the offence created by the section is subsidiary and ancillary to the conferral of the power to stop - See paragraphs 15 to 17.

Constitutional Law - Topic 7082

Provincial jurisdiction - Constitution Act, 1867, s. 92(10) - Local works and undertakings - Highway or street traffic regulation - Section 189 of the Highway Traffic Act of Ontario made it an offence for a person to refuse to stop when requested to do so by a police officer - The Ontario Court of Appeal held that the section was intra vires the provincial legislature under s. 92(10) of the Constitution Act, 1867 - See paragraph 11.

Constitutional Law - Topic 7295

Provincial jurisdiction - Constitution Act, 1867, s. 92(13) - Property and civil rights - Regulatory statutes - Streets and traffic - Section 189 of the Highway Traffic Act of Ontario made it an offence for a person to refuse to stop when requested to do so by a police officer - The Ontario Court of Appeal held that the section was intra vires the provincial legislature under s. 92(13) of the Constitution Act, 1867 - See paragraph 11.

Constitutional Law - Topic 7515

Provincial jurisdiction - Constitution Act, 1867, s. 92(16) - Matters of local or private nature - Street or highway regulation - Section 189 of the Highway Traffic Act of Ontario made it an offence for a person to refuse to stop when requested to do so by a police officer - The Ontario Court of Appeal held that the section was intra vires the provincial legislature under s. 92(16) of the Constitution Act, 1867 - See paragraph 11.

Motor Vehicles - Topic 3251

Regulation of vehicles and traffic - Directions of police officer - Police chase provisions - Wilful evasion - Validity of - The accused was convicted of an offence under s. 189(a) of the Ontario Highway Traffic Act - He appealed his conviction on the ground that s. 189 was ultra vires the Province of Ontario because it was in conflict with s. 118 of the Criminal Code - The Ontario Court of Appeal held that s. 189(a) is legislation in relation to a provincial object and cannot be characterized as legislation in relation to criminal law - The court stated that the offence created by the section is subsidiary and ancillary to the conferral of the power to stop - See paragraphs 15 to 17.

Cases Noticed:

Multiple Access Limited v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 8].

R. v. DiLorenzo; R. v. Bancroft (1984), 2 O.A.C. 62; 11 C.C.C.(3d) 13, consd. [para. 9].

O'Grady v. Sparling, [1960] S.C.R. 804, consd. [para. 10].

Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, refd. to. [para. 10].

R. v. Yolles (1959), 123 C.C.C. 305, refd to. [para. 10].

R. v. Corry, [1932] 4 D.L.R. 399, consd. [para. 16].

R. v. Dedman (1981), 32 O.R.(2d) 641; 122 D.L.R.(2d) 655; 59 C.C.C.(2d) 97; 23 C.R.(3d) 228; 10 M.V.R. 59, refd to. [para. 18].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 20 C.C.C.(3d) 97; 46 C.R.(3d) 193, refd to. [para. 18].

Di Iorio et al. v. Warden of the Common Jail of the City of Montreal, [1978] 1 S.C.R. 152; 8 N.R. 361, refd to. [para. 18].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 118.

Highway Traffic Act, R.S.O. 1980, c. 198, sect. 189(a).

Provincial Offences Act, R.S.O. 1980, c. 400 [para. 1].

Constitution Act, 1867, sect. 91(27), sect. 92(10), sect. 92(13), sect. 92(16) [para. 11].

Police Act, R.S.O. 1980, c. 381, sect. 57 [para. 18].

Authors and Works Noticed:

Hogg, Constitutional Law of Canada (2nd Ed. 1985), pp. 398 [para. 18]; 418 [para. 11]; 425-426 [para. 18]; 456 [para. 11].

Counsel:

Jocelyn Van Overbeck, for the respondent;

Donald G. Plaxton, Q.C., for the appellant.

This appeal was heard on October 8, 1985, before Morden, Goodman and Grange, JJ.A., of the Ontario Court of Appeal. On December 20, 1985, the following decision of the court was delivered by Morden, J.A.: