



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2014 ONCA 212

DATE: 20140321

DOCKET: C57456

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Tyler Wilson

Respondent

and

Attorney General of
    Ontario

Intervener

Lisa Shields, for the appellant

Grace Choi, for the intervener

Richard Litkowski,
amicus
    curiae

Heard: January 30, 2014

On appeal from the judgment of Justice R.J. LeDressay of
    the Ontario Court of Justice, dated June 11, 2013, allowing the appeal from the
    conviction entered on June 15, 2012 by Justice of the Peace D. Lee.

Sharpe J.A.:

[1]

The issue on this appeal is whether a drivers failure to wear a seat
    belt contrary to s. the
Highway Traffic Act,
R.S.O. 1990, c. H.8 (HTA),
    s. 106(2) is an offence of absolute liability or strict liability. The
    respondent, Mr. Wilson, was convicted by a Justice of the Peace on the basis
    that the offence was one of absolute liability. An appeal to the Ontario Court
    of Justice was allowed and a new trial ordered on the ground that the offence
    was one of strict liability affording the driver a due diligence defence. The
    Corporation of the City of Burlington appeals to this court with leave. As Mr. Wilson
    decided to take no further part in the proceedings,
amicus curiae
was
    appointed to advance the respondents position on appeal. Burlington, supported
    by the Attorney General of Ontario as intervener, asks that the appeal be
    allowed on the ground that the offence is one of absolute liability, but, in
    the circumstances, asks that a stay of proceedings be entered.

[2]

For the following reasons, I conclude that s. 106(2) creates a strict
    liability offence and that the appeal should be dismissed.

Facts

[3]

On September 24, 2011, a police officer saw Mr. Wilson stop his vehicle
    at a stop sign. The officer noticed that Mr. Wilsons seatbelt was hanging by his
    shoulder and issued a Provincial Offences Notice for failing to wear a seatbelt
    contrary to the HTA, s. 106(2).

[4]

Mr. Wilson testified that he had placed a coffee in a cup holder in the
    backseat of his car. While driving, he noticed the coffee was spilling on his
    laptop. When the officer observed him, he had just pulled up to a stop sign and
    removed his seatbelt so he could straighten the coffee cup.

[5]

The Justice of the Peace interrupted Mr. Wilsons testimony and told him
    that his evidence made him guilty of the offence as it was one of absolute
    liability. Mr. Wilson went on to say that there was no other traffic around and
    at the time, it was his intention to re-engage the seatbelt as soon as he fixed
    the coffee cup. The Justice of the Peace found Mr. Wilson guilty.

Appeal to the Ontario Court of Justice

[6]

On appeal to the Ontario Court of Justice, Mr. Wilson argued that

a)

the Justice of the
    Peace created a reasonable apprehension of bias by interrupting him to tell him
    he was guilty before all of the evidence was complete; and

b)

the offence was one of
    strict rather than absolute liability.

[7]

The appeal judge gave comprehensive reasons rejecting the reasonable
    apprehension of bias argument but concluded, on the basis of the test set out
    in
R. v. Sault Ste. Marie
, [1978] 2 S.C.R. 1299, as applied by this
    court in
R. v. Kanda
, 2008 ONCA 22, 88 O.R. (3d) 732, that s. 106(2)
    is an offence of strict liability. As the prosecution did not seek a new trial,
    the appeal judge allowed the appeal and entered a stay of proceedings.

Legislation

[8]

Ontarios seat belt legislation is found in the HTA, s. 106:

Seat belts

Seat belt assembly must not be removed or
    altered

106 (1) No person shall drive on a highway a motor
    vehicle in which a seat belt assembly required under the
Motor Vehicle
    Safety Act
(Canada) at the time that the vehicle was manufactured or
    imported into Canada has been removed, rendered partly or wholly inoperative,
    modified so as to reduce its effectiveness or is not operating properly through
    lack of maintenance.

Use of seat belt assembly by driver

(2)
Every person who drives
    on a highway a motor vehicle in which a seat belt assembly is provided for the
    driver shall wear the complete seat belt assembly as required by subsection
    (5).

Use of seat belt assembly by passenger

(3)
Every person who is at
    least 16 years old and is a passenger in a motor vehicle on a highway shall,

(a) occupy a seating position for which a seat belt
    assembly has been provided; and

(b) wear the complete seat belt assembly as required
    by subsection (5).

Driver to ensure young passenger uses seat
    belt assembly

(4)
No person shall drive on
    a highway a motor vehicle in which there is a passenger who is under 16 years
    old unless,

(a) that passenger,

(i) occupies a seating position for which a seat belt
    assembly has been provided, and

(ii) is wearing the complete seat belt assembly as
    required by subsection (5); or

(b) that passenger is required by the regulations to
    be secured by a child seating system or child restraint system, and is so
    secured.



Exception

(6)
Subsections (2) and (3)
    do not apply to a person,

(a) who is driving a motor vehicle in reverse;

(b) who holds a certificate signed by a legally
    qualified medical practitioner certifying that the person is,

(i) for the period stated in the certificate, unable
    for medical reasons to wear a seat belt assembly, or

(ii) because of the persons size, build or other
    physical characteristic, unable to wear a seat belt assembly; or

(c) who is actually engaged in work which requires
    him or her to alight from and re-enter the motor vehicle at frequent intervals
    and the motor vehicle does not travel at a speed exceeding 40 kilometres per
    hour.

Same

(7)
Clause (4) (a) does not
    apply in respect of a passenger if the passenger holds a certificate signed by
    a legally qualified medical practitioner certifying that the passenger is,

(a) for the period stated in the certificate, unable
    for medical reasons to wear a seat belt assembly; or

(b) because of the persons size, build or other
    physical characteristic, unable to wear a seat belt assembly.

Regulations

(8)
The Lieutenant Governor
    in Council may make regulations,



(e) exempting from any of the provisions of this
    section or the regulations made under this section,

(i) any class of motor vehicle,

(ii) any class of driver or passenger, or

(iii) drivers carrying any prescribed class of
    passenger,

and prescribing conditions for any such exemption;



Offence

(8.3)
Every person who
    contravenes or fails to comply with this section or a regulation made under
    this section is guilty of an offence and on conviction is liable to a fine of
    not less than $200 and not more than $1,000.

Issue

[9]

The sole issue raised on this appeal is whether s. 106(2) of the HTA
    creates an absolute or strict liability offence.

Analysis

R. v. Sault Ste. Marie and the presumption of strict liability

[10]

In
R. v. Sault Ste. Marie
, Dickson J., writing for a unanimous court,
    identified what he described as a half-way house between the extremes of true
    criminal offences that require proof of a guilty state of mind (intention,
    knowledge or recklessness), and public welfare offences imposing absolute
    liability, where conviction will follow upon proof that the accused did the
    prohibited act with no consideration of the accuseds state of mind or degree
    of fault. The new category was that of strict liability: the prosecution makes
    out its case by proving the doing of the prohibited act, but it is left open to
    the accused to avoid conviction by proving on a balance of probabilities that
    he or she took reasonable care to avoid the prohibited act.

[11]

Dickson
    J. offered a compelling rationale for the half-way house of strict liability.
    The link between absolute liability and increased compliance is unproven and
    tenuous. Strict liability maintains efficiency and effectiveness in the enforcement
    of minor regulatory legislation by relieving the prosecution of any obligation
    to prove fault but, by affording the accused the opportunity to demonstrate
    that he or she took reasonable care, also avoids the potential injustice
    inherent in the imposition of no-fault liability.

[12]

Sault
    Ste. Marie
, at p. 1326,
holds that the principle that punishment should in general not be inflicted on
    those without fault applies to make public welfare offences
prima facie
offences of strict liability. An offence would be classified as imposing
    absolute liability only where the Legislature had made it clear that guilt
    would follow proof merely of the prohibited act. The primary considerations to
    be used to determine whether the offence is one of absolute liability are: the
    overall regulatory pattern adopted by the Legislature, the subject matter of
    the legislation, the importance of the penalty, and the precision of the
    language used

Classification of HTA Offences

[13]

As
    this court observed in
Kanda
, the HTA creates offences falling within
    all three categories. Some HTA offences use language importing full
mens
    rea
(e.g. s. 104(2.2) parent or guardian knowingly permitting a person
    under 16 to ride a bicycle without a helmet), some impose liability on a
    reasonableness standard (e.g. s. 75(4) unreasonable noise), and some create
    offences of absolute liability by explicitly excluding the due diligence
    defence (e.g. s. 84.1(5) wheel detached from a commercial motor vehicle).
    However, for most HTA offences, the legislature does not clearly specify the
    level of fault and it falls to the courts to discern the appropriate level of
    fault based on the analysis laid down in
Sault Ste. Marie
.

[14]

The
    only case cited to us dealing with the specific issue whether s. 106(2) is an offence
    of strict or absolute liability is
R. v. Stewart
, [2007] O.J. No. 3000
    (Ont.C.J.), a brief oral judgment stating that the offence is one of absolute
    liability. However, as I read the decision, the argument advanced by the
    accused and rejected by the court was that the prosecution had to prove not
    only that the driver was not wearing a seat belt, but also that the vehicle was
    provided with a seat belt assembly and that it could be properly fashioned.
    That submission related to the elements of the offence, not whether absolute or
    strict liability was imposed. Although the trial judge said that s. 106(2) was
    an absolute liability offence, there was no reference to
Sault Ste. Marie
or to the presumption of strict liability.

[15]

The
    closest appellate authority is
Kanda
where this court considered
    whether the offence created by what is now s. 106(4), driving a vehicle while a
    passenger under sixteen is not wearing a seat belt, was one of strict or
    absolute liability. The court applied the four factors identified in
Sault
    Ste. Marie
in the following manner.

[16]

Writing
    for the court, MacPherson J.A looked first at the overall regulatory pattern.
    As, I have already explained, the HTA creates offences falling within all three
    categories. As the legislature had not used explicit language in s. 106,
    MacPherson J.A. concluded that overall regulatory pattern was neutral.

[17]

MacPherson
    J.A. found that the subject matter of the legislation pointed to strict
    liability. While the provision at issue was designed to ensure the safety of
    vulnerable young passengers, it was held in
Sault Ste. Marie,
at p. 1311,
    that [t]here is no evidence that a higher standard of care results from
    absolute liability. A driver who committed the prohibited act will be convicted
    in most cases as establishing the defence of due diligence or reasonable care
    will not be easy:
Kanda,
at para. 31. It follows that classifying the
    offence as one of strict liability strikes an appropriate balance between
    encouraging drivers to be vigilant about the safety of child passengers in
    their vehicles and not punishing those who exercise due diligence with respect
    to childrens seat belts:
Kanda
, at para. 32.

[18]

MacPherson
    J.A. concluded that the penalty, at the time a fine of not less than $60 and
    not more than $500 and two demerit points, was consistent with absolute
    liability. I note that the current penalty, introduced in 2009, is a fine of
    not less than $200 and not more than $1,000.

[19]

The
    precision of language, or lack thereof, was found to point to strict liability.
    By themselves, the words no person shall or every person who do not import
    absolute liability: see
R. v. Chapin
, [1979] 2 S.C.R. 121 at p. 131. However,
    some HTA offences using those words have been held to impose absolute
    liability:
R. v. Kurtzman
(1991), 4 O.R. (3d) 417 (C.A.) (failing to
    stop at a red light) and
London (City) v. Polewsky
(2005), 202 C.C.C.
    (3d) 257 (Ont. C.A.), leave to appeal to the S.C.C. refused, [2006] S.C.C.A.
    No. 37 (speeding). MacPherson J.A., at para. 39, distinguished those cases on
    the basis that the proscribed conduct resulted from the accuseds own actions
    while the child seat belt offence deals with a situation in which another
    person  the child passenger  is potentially involved in creating the violation.
    He held that it was counterintuitive to exclude the defence of due diligence where
    the offence involved failing to meet a standard of care with respect to another
    person.

[20]

Finally,
    MacPherson J.A. added this important point, at para. 40:

[Section 106(4)] of the
HTA
does not expressly exclude the
    defence of due diligence. The language of absolute liability is well-known and
    has been used by the legislature in the
HTA
in
s. 84.1
. If the legislature wanted to
    impose the serious consequences that flow from the creation of an absolute
    liability offence, the means for so doing would have been known and available.

[21]

He
    concluded, at paras. 43-44 that the strong presumption in favour of strict
    liability created by
Sault Ste. Marie
had not been displaced.

Should Kanda be applied?

[22]

The
    appellant urges us to distinguish
Kanda
on the ground that the offence
    created by s. 106(2) involves solely the accuseds own actions and does not
    involve the conduct of another person for whom the accused is responsible. The Attorney
    General, supporting this argument, points out that the seat belt requirement is
    an uncomplicated, one-step action fully within the drivers personal and
    physical control.

[23]

I
    disagree with the submission that we should distinguish
Kanda
and hold
    that s. 106(2) creates an absolute liability offence for the following reasons.

[24]

First,
    the involvement of the child passenger was only one of many factors mentioned
    in
Kanda
. As I read the judgment, the dominant factor was that there
    was nothing in the language used by the legislature to displace the presumption
    mandated by
Sault Ste. Marie
in favour of strict liability.

[25]

Second,
Kanda
s holding that the s. 106(4) offence is one of strict liability
    favours holding the s. 106(2) offence to be the same. Section 106 contains a detailed
    scheme as to seat belts and uses similar language to create a variety of
    offences without specifying the level of fault required. There is no statutory
    language indicating an intention to classify differently offences that prohibit
    similar conduct and appear in the same section of the governing statute.

[26]

Third,
    while the possible involvement of the child in the commission of the s. 106(4)
    offence makes it more obvious that the s. 106(4) offence should be classified
    as strict liability, the more obvious classification of s. 106(4) does not
    preclude the same classification for the closely related and similar offence
    created by s. 106(2). It is easy to imagine situations where a driver has taken
    reasonable steps to ensure that a child passenger is securely seat belted but
    the child manages to unfasten the belt. While it is more difficult, it is not
    impossible to imagine situations where a driver finds him or herself not
    securely seat belted despite having taken reasonable steps to secure the belt.

[27]

Fourth,
    I agree that because the s. 106(2) offence involves a simple act entirely
    within the control of the driver, situations in which a defence of due
    diligence arise are bound to be rare. However, it seems to me quite possible
    that a driver could take reasonable steps to fasten his or her seat belt, only
    to find that the belt did not close properly or had come undone. I fail to see
    why the small chance of such an occurrence should deprive the driver of the
    opportunity to present a due diligence defence. As held in
R. v. Raham
,
    2010 ONCA 206, 99 O.R. (3d) 241, at paras. 44, 49-50, if the offence is defined
    in such a way that it is impossible to do the prohibited act and, at the same
    time, to have acted with due diligence, the precision of the language used by
    the legislature will point to absolute liability. However, as
Raham
also held, the fact that a due diligence defence will not be readily available
    given the nature of the offence is not a reason to exclude it as a matter of
    law. In my view, while the defence of due diligence is not be readily available
    for the offence created by s. 106(2), it is not impossible to establish.
    Accordingly, there is nothing in the way the offence is defined that rebuts the
    strong presumption of strict liability.

Exceptions

[28]

Burlington
    argues that the exceptions found in s. 106(6) point to absolute rather than
    strict liability. That subsection provides that the requirement to wear a seat
    belt does not apply to a person who is driving the vehicle in reverse, to
    persons who cannot wear a seat belt for medical reasons or because of their
    size or other physical characteristics or who have work-related need to alight
    from the vehicle at frequent intervals. There is also a detailed regulation, enacted
    pursuant to s. 106(8)(e) providing for further exemptions.

[29]

The
    appeal judge concluded that the existence of these exemptions supported the
    proposition that s. 106(2) is a strict liability offence, citing the judgment
    of Tarnopolsky J.A. in
R. v. Nickel City Transport (Sudbury) Limited
(1993),
    82 C.C.C. (3d) 541 (Ont. C.A.), at pp. 554-555.

[30]

Burlington
    points out that this court has found some offences that contain exceptions to
    be absolute liability offences: see
Kurtzman
and
Polewsky
.

[31]

I
    am not persuaded that the presence or absence of the statutory exceptions to s.
    106(2) has any particular bearing on the issue we must decide. I agree with how
    Arbour J.A. put it in her concurring reasons in
R. v.

Nickel City
    Transport
, at p. 568:

I attach little significance to the fact that the legislation
    allows for exceptions to be enacted by regulation. Absolute liability means
    liability without proof of fault. It does not mean that the proscribed conduct
    can suffer no legislated exception. It merely means that those not exempted
    have no excuse for failing to comply.

[32]

The
    exceptions exclude the prosecution of certain individuals who have very
    specific needs and reasons not to wear a seat belt. The exceptions neither
    arise from nor relate to the concept of due diligence. The case we have to
    decide deals with the plight of an individual who has no such needs and who
    argues that he exercised due diligence to comply with the law.

Conclusion

[33]

Holding
    s. 106(2) to be an offence of strict liability comports with the wisdom of
Sault
    Ste. Marie
by enabling efficient and effective enforcement of important
    public safety legislation while avoiding the injustice of no-fault liability.
    The prosecution need only prove that the driver was not wearing a seat belt. As
    this court stated in
Kanda,
at para. 31, [s]trict liability is what
    its name implies  a serious commitment to enforcement of the law. But in the
    admittedly rare case where the driver has done his or her best to comply, the
    injustice of conviction without fault is avoided.

[34]

I
    wish to emphasize that because of the way this case came to us, we are not
    asked to decide whether Mr. Wilsons evidence at trial made out a due diligence
    defence. It is common ground that as he was precluded from advancing that
    argument before the Justice of the Peace at trial, if the Justice of the Peace
    was wrong in concluding that the offence was one of absolute liability, a new
    trial would be required. A defence of due diligence to this charge would only
    be made out where, although the driver was found not wearing his or her seat
    belt when driving, the driver had taken all reasonable care to wear the seat
    belt. As Doherty J.A. stated in
Raham
, at para. 48, citing
Kurtzman
at para. 37, a due diligence defence is not made out by acting generally in a
    reasonable way.

Disposition

[35]

For
    these reasons, I would dismiss the appeal.

Robert J. Sharpe
    J.A.

I agree David Watt
    J.A.

I agree M.L. Benotto
    J.A.

Released: March 21, 2014


