



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2013 ONCA 503

DATE: 20130730

DOCKET: M42675

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Tyler Wilson

Respondent

Lisa Shields, for the applicant

Richard Litkowski, for the respondent

Grace Choi, for the intervener, the Attorney General of
    Ontario

Heard: July 30, 2013

On a motion for leave to appeal 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 and the sentence
    imposed that day by Justice of the Peace D. Lee.

ENDORSEMENT

[1]

Tyler Wilson was found guilty of failing to properly wear his seatbelt
    contrary to s. 106(2) of the
Highway Traffic Act
.  He was fined $125. 
    The appeal court judge allowed the appeal on the basis that the offence was,
    properly considered in light of the Court of Appeals decision in
R. v.
    Kanda
, [2008] O.J. No. 80, not an absolute liability offence, as the trial
    justice found, but a strict liability offence on which the defence of due
    diligence was possible.

[2]

The applicant seeks leave to appeal under s. 139 of the
Provincial
    Offences Act
. The principles for granting leave to appeal are set out in
Ontario
    (Labour) v. Enbridge Gas Distribution Inc.
, 2011 ONCA 13, per Watt J.A. at
    paras. 33-35. There must be question of law alone, the resolution of which may
    have an impact on the jurisprudence in a way that is of interest to the public
    at large, and that resolution must be essential in the public interest, in the
    sense of material, important, or for the due administration of justice:
R.
    v. Krukowski
, [1991] O.J. No. 255 per Lacourciere J.A., at para 13.
    Further, the leave court may advert to the merits:
Ontario (Labour) v.
    Enbridge Gas Distribution Inc.
, at para. 38.

[3]

Section 106(6), now s. 106(4) of the
Highway Traffic Act
, was
    in issue in
Kanda
.  That section stipulates that a person may no drive
    a motor vehicle in which there is a passenger under 16 years of age, unless
    that passenger is wearing a properly adjusted seatbelt.  This court in
Kanda
concluded that s. 106(6), now s. 106(4), is a strict liability offence.

[4]

The applicant points out that there is a critical difference between s.
    106(4), which deals with the drivers responsibility for a passenger who is a
    child, and s. 106(2), which deals with the drivers responsibility to be
    belted.  This leaves open, says the applicant, a finding that s. 106(2) is an
    absolute liability offence, despite
Kanda
.  Courts in Ontario have
    been operating on the basis that s. 1062 is an absolute liability offence based
    on the authority of
R. v. Stewart
, [2007] O.J. No. 3000 (O.C.J.).

[5]

In my view, it is a question of law alone whether s. 106(2) of the
Highway
    Traffic Act
imposes absolute liability or strict liability.  Resolution of
    that question would have an impact on the jurisprudence in a way that is of
    interest to the public at large, given both the frequency with which the
    offence is charged and its public safety purpose.

[6]

Mr. Litkowski appeared to assist the court without retainer, since his
    client does not wish to fund the pursuit of the matter, having been successful
    on appeal.  I take the approach that my colleague Cronk J.A. in
Toronto
    (City) v. Andrade
, [2011] O.J. No. 5311, at para. 10-12. It is important
    that both sides of the issue be argued.

[7]

For these reasons, the motion for leave to appeal on this matter is
    hereby granted.  I further direct that Richard Litkowski, who appeared on this
    motion for the respondent, be appointed
amicus
counsel to be
    compensated at the legal aid rate (
R. v. Russel
, 2011 ONCA 303, at
    para. 67).

P. Lauwers J.A.


