R. v. Michaud (G.), 2015 ONCA 585

• Judge: Watt, Lauwers and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Tuesday March 10, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 585;(2015), 339 O.A.C. 41 (CA)

R. v. Michaud (G.) (2015), 339 O.A.C. 41 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.025

Her Majesty the Queen (respondent) v. Gene Michaud (appellant)

(C59271; 2015 ONCA 585)

Indexed As: R. v. Michaud (G.)

Ontario Court of Appeal

Watt, Lauwers and Hourigan, JJ.A.

August 31, 2015.

Summary:

The accused, a commercial truck driver, was required by law to equip his truck with a functional speed limiter set to a maximum speed of 105 km/h. The speed limiter on the accused's truck was functional, but was set to 109.4 km/h. He was charged by way of a ticket with contravening s. 68.1(1) of the Highway Traffic Act (HTA) and s. 14(1) of the Equipment Regulation, which together imposed the speed limiter requirement. The justice of the peace at first instance acquitted the accused on the basis that the legislation infringed his right to security of the person and thereby violated s. 7 of the Charter. The Crown appealed. The accused died, but his wife was substituted as the party, and the appeal proceeded.

The Ontario Court of Justice, in a decision with neutral citation 2014 ONCJ 243, admitted fresh evidence, found no Charter violation, allowed the appeal and set aside the trial decision. However, instead of entering a conviction against the deceased accused, the proceedings against him were stayed. The accused's wife pursued a second appeal, which was a test case for the trucking industry. Leave to appeal was granted under s. 139 of the Provincial Offences Act (POA) on two questions of law:

"1. What is the scope of an appeal to the Ontario Court of Justice on a Part I POA offence, pursuant to s. 135 of the POA?

"2. Is s. 68.1(1) of the HTA unconstitutional because it violates the right to security of the person, which is protected by s. 7 of the Charter?"

The Ontario Court of Appeal, as to the first ground of appeal, held that the Court of Justice did not exceed the scope of appellate review. As to the second ground of appeal, the court held that while the legislation resulted in a violation of s. 7 Charter rights, it could be upheld under s. 1 of the Charter. In the result, the appeal was dismissed.

Civil Rights - Topic 1200

Security of the person - General - [See first Civil Rights - Topic 1345 and both Civil Rights - Topic 8546].

Civil Rights - Topic 1345

Security of the person - Safety legislation - Highway and traffic safety - The accused, a commercial truck driver, was charged with contravening s. 68.1(1) of the Highway Traffic Act (HTA) and s. 14(1) of the Equipment Regulation, which together imposed a requirement that trucks be equipped with a functional speed limiter set to a maximum speed of 105 km/h - At issue was whether s. 68.1(1) of the HTA was unconstitutional because it violated the right to security of the person by endangering the accused's safety (Charter, s. 7) - The Ontario Court of Appeal, using the analytical framework set out in Bedford v. Canada (SCC 2013), held that the legislated speed limiter requirement deprived the truck driver of his right to security of the person by preventing him from accelerating beyond 105 km/h in all situations where it was needed to avoid collisions - The legislation was overbroad - The court, however, upheld the legislation under s. 1 of the Charter - See paragraphs 59 to 145.

Civil Rights - Topic 1345

Security of the person - Safety legislation - Highway and traffic safety - [See second Civil Rights - Topic 8546].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See first Civil Rights - Topic 1345].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See first Civil Rights - Topic 8546].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Ontario Court of Appeal reviewed the recent Supreme Court of Canada jurisprudence on the analytical framework to be used in determining whether legislation deprives a person of their right to security of the person (Charter, s. 7) - The court stated that according to Bedford v. Canada (SCC 2013), the focus of s. 7 was relentlessly on the individual claimant - If, as the result of legislation, a single individual was left in danger in even a single situation, then the legislation breached the claimant's s. 7 Charter rights - The balancing of the private impact on the individual and the public benefit of a law was addressed only in the s. 1 Charter analysis, after a claimant had established a breach - See paragraphs 59 to 79.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Ontario Court of Appeal, using the analytical framework in Bedford v. Canada (SCC 2013), found that the provincially legislated speed limiter requirement for trucks deprived a truck driver of security of the person contrary to s. 7 of the Charter - The court noted that according to Bedford that a negative impact affecting a single person was a sufficient basis for finding a breach of s. 7 - Here, the truck driver met that test - The court explained that it reached its conclusion reluctantly, but felt compelled to apply Bedford - The court, however, explained why applying Bedford was problematic in the context of safety regulation - See paragraphs 76 to 80 and 146 to 154.

Motor Vehicles - Topic 3172

Regulation of vehicles and traffic - Equipment - Speed-limiting system - [See first Civil Rights - Topic 1345 and both Civil Rights - Topic 8546].

Motor Vehicles - Topic 4282

Offences - Appeals - Scope of review - A commercial truck driver was issued a ticket under Part 1 of the Provincial Offences Act (POA) for contravening the speed limiter requirements in the Highway Traffic Act (Ont.) and the Equipment Regulation - He was acquitted by a justice of the peace because the legislation contravened the Charter - An issue arose as to the scope of an appeal to the Ontario Court of Justice on a Part I POA offence, pursuant to s. 135 of the POA - The Ontario Court of Appeal discussed the scope of appeal - The court held that Part 1 appeals were to be conducted as "robust reviews", so that deference to the trial justice was limited to credibility findings - The scope of an appellate review was broad - The court saw no basis upon which to depart from that principle simply because a case was not a "typical" Part 1 matter - See paragraphs 37 to 58.

Trials - Topic 1182.2

Summary convictions - Appeals - Scope of appeal - [See Motor Vehicles - Topic 4282].

Cases Noticed:

Bedford et al. v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 4264; 102 O.R.(3d) 321; 2010 ONSC 4264, folld. [para. 6].

Bedford et al. v. Canada (Attorney General) (2012), 290 O.A.C. 236; 109 O.R.(3d) 1; 2012 ONCA 186, refd to. [para. 22].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 22].

R. v. Duma, 2012 ONCJ 94, refd to. [para. 46].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 47].

R. v. Gill (2003), 46 M.V.R.(4th) 230 (Ont. C.J.), refd to. [para. 48].

R. v. Smith (O.E.) (2015), 472 N.R. 1; 372 B.C.A.C. 1; 640 W.A.C. 1; 2015 SCC 34, refd to. [para. 61].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 82].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 82].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201, refd to. [para. 102].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 104].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 105].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 105].

R. v. Timminco Ltd. (2001), 144 O.A.C. 231; 54 O.R.(3d) 21 (C.A.), refd to. [para. 106].

Ontario (Minister of Labour) v. Hamilton (City) (2002), 155 O.A.C. 225; 58 O.R.(3d) 57 (C.A.), refd to. [para. 106].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 107].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 107].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 107].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 109].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 109].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Paradis Honey Ltd. et al. v. Canada (Attorney General) (2015), 472 N.R. 75; 2015 FCA 89, refd to. [para. 110].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 111].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 112].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 112].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 117].

Cochrane v. Ontario (Attorney General) (2008), 242 O.A.C. 192; 92 O.R.(3d) 321 (C.A.), refd to. [para. 130].

Minister of National Revenue v. Craig, [2012] 2 S.C.R. 489; 433 N.R. 111; 2012 SCC 43, refd to. [para. 146].

R. v. Transport Robert (1973) ltée et al. (2003), 178 O.A.C. 361; 180 C.C.C.(3d) 254 (C.A.), refd to. [para. 153].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 131, footnote 4].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 79]; sect. 7 [para. 59].

Equipment Regulation - see Highway Traffic Act Regulations (Ont.), Equipment Regulation.

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 68.1(1) [para. 1].

Highway Traffic Act Regulations (Ont.), Equipment Regulation, R.R.O. 1990, Reg. 587, sect. 14(1) [para. 1].

Provincial Offences Act, R.S.O. 1990, c. P-33, sect. 135(1), sect. 136(2), sect. 136(3), sect. 138(1) [para. 45].

Authors and Works Noticed:

Archibald, Todd L., Roach, Kent W., and Jull, Kenneth E., Regulatory and Corporate Liability: From Due Diligence to Risk Management (2015) (Looseleaf), ss. 1:40 [para. 102]; 1:60 [para. 92]; 2:15:30 [para. 100, footnote 3].

Canada, Treasury Board of Canada Secretariat, Canada Cost-Benefit Analysis Guide: Regulatory Proposals (2007), generally [para. 94].

Hogg, Peter, The Brilliant Career of Section 7 of the Charter (2012), 58 S.C.L.R.(2d) 195, p. 209 [para. 67].

Ontario, Regulatory Policy (2015), generally [para. 94].

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), p. 151 [para. 67].

Sunstein, Cass R., Simpler: The Future of Government (2013), p. 156 [para. 93].

Sunstein, Cass R., The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers) (2014), 114 Colum. L. Rev. 167, pp. 168 to 169 [para. 95].

United States of America, Federal Motor Carrier Safety Administration, Research on the Safety Impacts of Speed Limiter Device Installations on Commercial Motor Vehicles: Phase II (2012), generally [para. 25].

Counsel:

David Crocker and Laura K. Bisset, for the appellant;

Joshua Hunter and Padraic Ryan, for the respondent.

This appeal was heard on March 10, 2015, before Watt, Lauwers and Hourigan, JJ.A., of the Ontario Court of Appeal. Lauwers, J.A., delivered the following decision for the court on August 31, 2015.