R. v. Spacemaker Products Ltd.
Spacemaker Products Ltd., and
 O.J. No. 3039
7 M.V.R. 265
4 W.C.B. 289
Ontario County Court - Essex County
McMahon Co. Ct. J.
January 17, 1980.
R. v. Robinson (Robertson),  S.C.R. 522, 12 C.R. 101, 100 C.C.C. 1.
R. v. Smith, 56 N.S.R. 72, 38 C.C.C. 327,  1 D.L.R. 820 (C.A.).
R. v. Valihora, Ont. Co. Ct., Thomson Co. Ct. J. (unreported).
Highway Traffic Act, R.S.O. 1970, c. 202, s. 77(1).
s. 79 [re-en. 1977 c. 65 s. 3; am. 1978, c. 4, s. 19(a) to (e)].
Income War Tax Act, 1917 (Can.), c. 28, s. 9.
Black's Law Dictionary (rev. 4th ed.), p. 1060, "liable". Oxford English Dictionary (1933), vol. vi, "liable".
APPEAL by the accused from two convictions of operating a commercial motor vehicle of a gross vehicle weight in excess of the permitted weight contrary to s. 77(1) of the Highway Traffic Act (Ontario), and from the penalties imposed.
R. Thomas, Q.C., for the appellant.
R. Colautti, for the Crown.
1 MCMAHON CO. CT. J.:-- This is an appeal by Spacemaker Products Limited from two convictions, which were registered on the 4th day of April 1979, relating to charges which were alleged to have occurred on the 3rd day of February 1978, pursuant to s. 77(1) of The Highway Traffic Act R.S.O. 1970, c. 202. On the first conviction, the appellant company was found to be the owner of a vehicle carrying a load in excess of that for which the permit was issued, to wit: 89,700 pounds. On the second conviction, the same company on the same day was convicted of a breach of s. 77(1) of The Highway Traffic Act, in that the weight of the load was in excess of that for which the permit was issued, to wit: 31,500 pounds. The appeal taken against the disposition of these matters by the learned justice of the peace was against both conviction and sentence.
2 Upon the hearing of this appeal, counsel for the appellant has withdrawn all grounds against conviction except one ground, which he submitted admittedly, without a great degree of force. It is argued that the evidence before the learned justice of the peace would indicate that a mistake in fact had been made by employees of the said company, and that this afforded a defence to the appellant.
3 If one might just state in a very short summary of the facts, two tractor-trailer combinations, carrying loads of lumber were stopped at a weigh station on Highway 401, and upon the weight being taken, and upon a check being made of the permit, it was found that the vehicles were carrying an excess weight, and therefore, in contravention of s. 77. At the trial before the learned justice of the peace, Mr. Hollinder appeared and testified. Unfortunately, in the evidence, he was not clearly identified as to his position with the appellant company, but obviously, he was in some position of management, if not, ownership. He stated that at that time he was in the hospital. He then proceeded to give evidence that on the previous evening of the date of the offence, his premises had been broken into and two tractors, which should have been used for the conveyance of the loads in question, were damaged; that these tractors did have the permit, which would have permitted them to carry the loads which were carried; that because of the damage to the two tractors, two other tractors, by mistake were substituted, and that these substituted tractors were not certified to carry the loads, which became the subject of these charges.
4 Now first, all of this evidence, with relation to what occurred, the substitution of the two tractors and so on, was clearly hearsay and should not have been admitted by the trial Judge. However, even if the person who authorized the substitution, and there is some indication in the evidence that it was Mr. Hollinder's wife, had given evidence at the trial, surely, this would not relieve the company from responsibility. If a person is left in charge of an operation, and makes a mistake, such as was made in this case, then surely, that does not amount to an excuse, when dealing with a section of a statute, which, in my view, falls within the area of a strict liability statute and a strict liability offence.
5 Therefore, with reference to the question of the conviction, that part of the appeal against both charges will be marked "dismissed".
6 The main thrust of Mr. Thomas' submissions, however, have to do with the question of sentence, and that requires the Court to place an interpretation upon s. 79 of The Highway Traffic Act.
7 There is no question that on the evidence, one tractor-trailer combination did exceed the permissible weight by 89,700 pounds, and that the second one did exceed the permissible weight by 31,500 pounds. The penalty imposed on the first charge was $4,084.35, and on the second charge, $1,146.60.
8 The learned justice of the peace, in his reasons for judgment, indicated that he felt that he had no discretion with reference to the imposition of the penalties, and that the penalties were, in fact, fixed by statute. He indicated, also, that if there had been a discretion, that the discretion would have been exercised in such a way that some lesser penalty would have been imposed.
9 Section 79 [re-en. 1977, c. 65, s. 3; am. 1978, c. 4, s. 19(a) to (e)] of The Highway Traffic Act reads as follows:
"79. Every person who contravenes any of the provisions of Subsection (1) of section 71, sections 72, 73 and 74, subsection (3) of section 75, and section 76 is guilty of an offence and on summary conviction is liable to a fine of,"
and then, there are various categories:
"(a) $0.91 per hundredweight or part thereof for any weight in excess of that permitted under this Act or the Regulations, where the overweight is less than 11,000 pounds, but in no case, shall the fine be less than $50;
(b) $1.82 per hundredweight or part thereof for any weight in excess of that permitted under this Act or the regulations, where the overweight is 11,000 pounds or more, but is less than 16,500 pounds."
10 The paragraph which was, in effect, used by the learned justice was para. (d) with reference to one offence:
"(d) $3.64 per hundredweight or part thereof for any weight in excess of that permitted under this Act or the regulations, where the overweight is 22,000 pounds or more, but is less than 33,000 pounds;"
"(e) $4.55 per hundredweight or part thereof for any weight in excess of that permitted under this Act or the regulations, where the overweight is 33,000 pounds or more."
11 The question for determination by this Court is whether the words used by the Legislature remove from the Court, any discretion with reference to the imposition of a penalty. Now clearly, subpara. (a) does remove from the Court a discretion, in essence, that no fine shall be less than $50. The question for determination is whether the amounts set forth in the various paragraphs of s. 79 should be construed as a maximum penalty in each case, with an overall minimum of $50, or whether they shall be construed as fixing a mandatory penalty, which must be imposed by the Court by an exercise of a mathematical formula.
12 I state at the outset, certain basic principles. First, if the wording of the legislation is clear and unambiguous, then, the Court is required to interpret that legislation in its ordinary meaning, regardless of the consequences of that interpretation. Secondly, being a penal statute, and particularly, with reference to penal statutes, if the wording used by the Legislature is ambiguous, then, the Court is required to resolve such ambiguity in favour of the accused person.
13 Is the section, as set forth, ambiguous with reference to whether the Legislature intended a mandatory penalty, or merely intended to fix a maximum penalty with relation to the various weights?
14 It is argued by counsel for the Crown that if it was the intention of the Legislature to approach it in such a manner, then they might reasonably have been expected to use such words as "is liable to a penalty not to exceed such and such an amount", and if they wished to put in a minimum, then to stipulate "to a fine not less than such and such an amount, but not to exceed such and such an amount".
15 Now, of course, that is quite true. The Legislature could have certainly clarified the matter if they chose to do so.
16 It is argued with equal force on behalf of the accused, that if the Legislature required to fix a mandatory penalty, then they could have used clear language, indicating that this was the intention. For example, the Legislature could [have used] such words as "shall be fined an amount equal to".
17 It is noted by the Court that in this specific section, a word which is in general use in legislation, when the Parliament or the Legislature wishes to impose upon the Court a mandatory condition is absent in this section, and that word is "shall". The Court is often faced in the interpretation of various sections in statutes with either the use of the word "shall" or the word "may"; one of which is mandatory and the other which is permissive. Now, granted, in this case, Crown counsel can quite forcibly argue that the section does not contain the word "may", and that if a discretion was to be given to the Court, then the Legislature could quite clearly have said "may be liable to a fine of", and then set forth the subparas. (a) through (e). The legislation, however, does not adopt either of those phrases. It uses the term "is liable to a fine of", and it is the obligation of this Court to interpret that phrase as used in this legislation.
18 Counsel for the Crown has referred me to certain decisions and to a dictionary lexicon. The decision is in the case of R. v. Smith, 56 N.S.R. 72, 38 C.C.C. 327,  1 D.L.R. 820 (C.A.). In that case, the Court was dealing with a section under the Income War Tax Act, 1917 (Can.), c. 28, but as was pointed out to the counsel on argument, that section did contain the mandatory word "shall", and the section in question [s.9(1)] reads as follows [D.L.R., p. 821]:
"... For every default in complying with the provisions of the next preceding section, the persons in default shall be liable on summary conviction to a penalty of twenty-five dollars for each day during which the default continues."
The Court, I think quite properly in that review, indicated that the penalty was mandatory and that the Court had no discretion.
19 I was also referred to an unreported case which took place in this jurisdiction, a decision of His Honour Judge Thomson in R. v. Valihora, where in dealing with this section, His Honour indicated that he was bound to interpret it in a mandatory way, and without discretion. However, in his judgment, whether he had been misled as to the provision of the section, he stated that the section says, "shall be liable to the fine", and then proceeds, "I believe I cannot find that I have any discretion on this fine."
20 The words "is liable to" has various dictionary meanings, one submitted by the defence and one, of course, submitted by the Crown.
21 Black's Law Dictionary, in the 4th edition at p. 1060, defines the term in the following words, "liable": "Bound or obliged in law or equity; responsible; chargeable; answerable; compellable ...", and then, as a secondary definition: "Exposed or subject to a given contingency, risk or casualty which is more or less probable", and further down, using the term "liable to penalty", it states, "Subject to penalty."
22 Counsel for the appellant has argued that this Court should define the words "liable to" as meaning "exposed to", and he has referred the Court to the case of R. v. Robinson (Robertson),  S.C.R. 522, 12 C.R. 101, 100 C.C.C. 1. This was a decision of the Supreme Court of Canada when they were reviewing the sections of the Code relating to a habitual criminal. It is, of course, admitted that this is an entirely different section than the one that is before the Court today, and it is also admitted that the wording is, perhaps, placed in a different context. The phrase being interpreted is as follows: "For which he was liable to at least five years' imprisonment."
23 In reviewing that phrase, Mr. Justice Cartwright, as he then was, stated at p. 14 [C.C.C.]:
"The meaning which I ascribe to the word 'liable' is given in the Oxford English Dictionary (1933) Volume VI, page 235. In Black's Law Dictionary, 3rd Edition (1933), at page 1103, the meaning given is: 'Exposed or subject to a given contingency, risk or casualty which is more or less probable'."
24 He then further states at p. 15:
"In my opinion a consideration of such sections", referring to other sections, "strengthens the view that the words "liable to' followed by a stated term of years' imprisonment mean that such term is the permissible maximum and not a mandatory minimum."
25 At p. 13, he stated:
"The solution of the question depends upon the meaning to be given to the words 'liable to'. Their ordinary and natural meaning, is, I think, 'exposed to'. The intention of Parliament as disclosed in the words of the section seems to me to be to describe a class of indictable offences, and to require as one of the conditions of a person being found to be a habitual criminal that he shall at least three times have been convicted of an offence comprised in such class."
26 Now, granted that in the section with which he was dealing, in that situation, and the problem which confronted that Court is not the problem that is before this Court. However, in my view, it is sufficient, having been referred to that decision, to at least create in the mind of this Court, a doubt as to the true intent of the Legislature of this province. I find that the wording of s. 79 can best be described as being ambiguous. I therefore find that since it is ambiguous, that the benefit of such ambiguity must be given to the Appellant. I therefore find that subject to the minimum penalty set out in para. (a), that the other paragraphs create a maximum penalty, and that there is a discretion in the Court to impose a penalty within those limits, depending upon the circumstances that exist in each case.
27 Mr. Colautti, do you now wish to make submissions as to penalty?
28 MR. COLAUTTI: - Yes, Your Honour.
[Note: Mr. Colautti makes submissions as to penalty. Mr. Thomas makes submissions as to penalty.]
29 MCMAHON CO. CT. J.:-- Well, in this matter, I am proceeding on the basis of accepting an explanation, which may not have been admissible as evidence at the trial, but is before the Court. I am proceeding on the basis that the managing person of the defendant company was hospitalized at the time of the occurrence; that the exchange of tractors was done without his personal knowledge or consent, and was, in effect, the result of the lack of knowledge of the person who was left in charge of the operation; and that the substitution of the tractors resulted from a criminal act of other persons, which placed out of commission the authorized tractors, which could have been used.
30 Now, having said that, it is certainly something that the Court can look at in mitigation of penalty. On the other hand, the Court must look at the overall scheme of the legislation.
31 Obviously, the vehicles which carry greater weight cause greater damage to the highway system, requiring increased maintenance and replacement, all of which is at the tremendous expense of the taxpayer. Accordingly, persons who are causing the main wear and tear, if I can use that phrase, of the highway system are required by an increased permit fee to bear what is their fair share of that cost, and it is clearly the intent of the Legislature, even in interpreting the legislation as I have interpreted it, that the greater the excess weight, then the greater liability faces the perpetrator of the offence. I cannot merely ignore the fact that the Legislature, as I have determined it, has increased maximums with reference to the increased excessive weight.
32 Having taken that into consideration, I find that in the circumstances of this case, that a proper disposition would be as follows. On count 1, being the first information, the accused will be fined the sum of $1,200. On count 2, being the second information, the accused will be fined the sum of $500.