



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Michaud, 2015 ONCA 585

DATE: 20150831

DOCKET: C59271

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gene Michaud

Appellant

David Crocker and Laura K. Bisset, for the appellant

Joshua Hunter and Padraic Ryan, for the respondent

Heard: March 10, 2015

On appeal from the judgment of Justice D.A. Harris of the
    Ontario Court of Justice, dated May 15, 2014 with reasons reported at 2014 ONCJ
    243, setting aside the decision of Justice of the Peace B. Kelly, dated June 6,
    2012.

Lauwers J.A.:

[1]

Gene Michaud, the late appellant, was a commercial truck driver. He 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 Mr. Michauds truck was
    functional, but was set to 109.4 km/h. He was charged with contravening s.
    68.1(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8

(
HTA
)
    and s. 14(1) of the equipment regulation, R.R.O. 1990, Reg. 587 (the
    legislation), which together impose the speed limiter requirement. Mr.
    Michaud admitted the facts.

[2]

The justice of the peace at first instance acquitted Mr. Michaud on the
    basis that the legislation infringed his right to security of the person and
    thereby violated s. 7 of the
Canadian Charter of Rights and Freedoms
,
    Part I of the
Constitution Act, 1982.
When Mr. Michaud passed away
    before the first appeal, his wife, Barbara Michaud, was substituted as the party
    and the appeal proceeded. On appeal, the Ontario Court of Justice admitted
    fresh evidence, found no
Charter
violation, and set aside the trial
    decision.

[3]

This is a test case for the trucking industry. Justice Blair granted
    leave to appeal to this court under s. 139 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33 (
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
?

[4]

For the reasons set out below, I would dismiss the appeal. Following a
    brief overview of the proceedings below, I address each question of law in
    turn.

A.

the decision of the justice of the peace

[5]

On consent, the evidence at trial consisted of affidavits and
    out-of-court cross-examinations. The trial justice had evidence from three
    witnesses called by the defence:  the appellant Mr. Michaud, a licensed
    professional driver; Julie Cirillo, an expert on highway safety; and Michael
    Lepage, an expert on greenhouse gases. The Crown called Dr. Frank Saccomanno,
    an expert on truck speed limiters.

[6]

The trial justice followed the analytical approach taken by the trial
    court in
Bedford v. Canada (Attorney. General)
, 2010 ONSC 4264, 102
    O.R. (3d) 321. He considered first, whether the legislation constituted a
    deprivation of Mr. Michauds security of the person, and second, whether the
    deprivation was in accordance with the principles of fundamental justice.

(1)

Security of the Person

[7]

The trial justice identified three purposes for truck speed limiters: to
    reduce greenhouse gas emissions, to reduce the severity of collisions, and to
    prevent accidents.

[8]

The trial justice acknowledged, at pp.15-16, that the speed limiters may
    achieve, albeit in only a minor way, the goal of reducing greenhouse gas
    emissions by trucks, based on the evidence of Mike Lepage, an expert in
    meteorology, air quality analysis and atmospheric chemistry modelling.

[9]

On the goal of reducing of the severity of collisions, the trial justice
    noted, at p.9, that: All agreed that speed is a factor in severity and affects
    response times and may contribute to frequency of accidents. He qualified his
    acceptance of this evidence, at p. 15: However, I was provided no evidence as
    to what the threshold speed might be because once you are past a certain speed
    it does not matter. He added, by way of explanation: so after a certain rate
    of speed, it is not going to matter. It is going to be severe and there are
    going to be fatalities but I have nothing to refer to on this.

[10]

On
    the goal of preventing accidents, the trial justice accepted the evidence of
    Mr. Michaud and Ms. Cirillo, and rejected the evidence of Dr. Saccomanno.

[11]

Mr.
    Michauds evidence was anecdotal. The trial justice accepted it as the
    observational evidence of an experienced professional, but not an expert
    (p. 6).  Mr. Michaud asserted that a speed limiter set at 105 km/h would have
    put him in personal danger by preventing him from keeping pace with traffic in
    certain circumstances. He recounted several instances from personal experience
    in which he felt unsafe due to the speed limiters restriction on his ability
    to manoeuvre his vehicle. In particular, he pointed to: his inability to
    accelerate at exits and on ramps where there is considerable friction between
    vehicles traveling at different speeds; his inability to pass slower vehicles
    in a timely manner; and his inability to manoeuvre out of a jack-knife
    situation by way of acceleration.

[12]

Ms.
    Cirillo is the retired Assistant Administrator and Chief Safety Officer of the
    United States Federal Motor Carrier Safety Administration. She testified that a
    speed limiter set at 105 km/h would place trucks at variance with the higher
    mean speed of highway traffic. She asserted that turbulence resulting from
    speed variance among vehicles, rather than absolute rates of speed, causes
    collisions; the use of speed limiters produces variations in speeds among
    vehicles, and therefore causes more accidents. As the trial justice put it, (p.
    5): increased variance from the mean rate of speed will result in a higher
    number of collisions. Ms. Cirillo admitted she was not an expert on speed
    limiters.

[13]

Dr.
    Saccomanno is a tenured Professor of Civil Engineering at the University of
    Waterloo and an expert in speed limiters. He authored a study for Transport
    Canada that led to the creation of the legislation. At trial, Dr. Saccomanno
    asserted, based on mathematical models, that equipping trucks with speed
    limiters would result in increased safety by reducing truck speed and by
    decreasing the severity of collisions and possibly reducing fatalities.

[14]

In
    his affidavit Dr. Saccomanno gave the opinion:  truck speed limiters do not
    pose any significant safety hazard that would argue against their adoption for
    freeway operations. He added that they decrease high  risk interactions
    between cars and trucks, improve lane discipline, and reduce crash frequency
    and severity.

[15]

The
    trial justice did not accept Dr. Saccomannos evidence. Instead he cited it as
    partially supportive of Ms. Cirillos evidence. He quoted Dr. Saccomannos
    study: at certain volumes and specific areas of the highway, namely on and off
    ramps, greater turbulence occurs, resulting in decreased safety. He cited Dr.
    Saccomanno for the proposition that in certain instances speed limiters can
    actually reduce the level of safety (at p.10).

[16]

The
    trial justice noted that many factors contribute to highway traffic accidents,
    including excess speed and variance from the mean speed. However, he found that
    the evidence did not establish that the use of speed limiters actually results
    in increased safety and decreased accident rates. He stated, at p. 11:

There is no research that says the use of speed limiters has
    resulted in increased safety and a decrease in the accident rates in those
    jurisdictions that have implemented them. There are no studies providing any
    empirical scientifically supported evidence demonstrating before and after
    effects of speed limiters.

[17]

The
    trial justice reasoned that the
HTA
is meant to promote drivers
    having due care and attention or having reasonable consideration for other
    persons while driving; there is an expectation that a driver will be able to
    manoeuvre as necessary to avoid collisions, but the speed limiter interferes
    with this ability in some instances, putting the driver and those nearby in
    danger.

(2)

The Principles of Fundamental Justice

[18]

As
    noted, for the purposes of the s. 7 analysis using the approach taken in the
    trial decision in
Bedford
, the trial justice considered three purposes
    for speed limiters: reducing greenhouse gas emissions, reducing the severity of
    collisions, and preventing accidents.

[19]

The
    trial justice acknowledged that the speed limiters may achieve the goal of
    reducing greenhouse gas emissions by trucks, albeit in only a minor way. But
    that acknowledgment was of no moment in his consideration of the principles of
    fundamental justice. Nor did the trial justice advert to the goal of reducing
    the severity of collisions in this section of his analysis.

[20]

Instead
    the trial justice focused on the goal of accident prevention. He determined
    that the danger imposed on Mr. Michaud by the operation of the legislation was
    not in accordance with the principles of fundamental justice. In particular, he
    held that the 105 km/h setting for the speed limiter was arbitrary. Since the
    government could not explain how it arrived at precisely that number, he
    surmised that it was chosen without the benefit of science as to the safety or
    effectiveness of the limit (p. 17). He found that the requirement of speed
    limiters set to 105 km/h failed to achieve its goal of increasing highway
    safety by preventing accidents. Instead, it has created a potentially new set
    of dangers that may result in collisions caused by the inability to have full
    care and control of ones vehicle (p. 15).

[21]

The
    trial justice concluded that the legislation therefore negatively affected Mr.
    Michauds s. 7 right to security of the person, based on the trial courts
    logic in
Bedford.
Accordingly, the trial justice did not convict Mr.
    Michaud of the offence, but provided the following remedy: section s. 68.1 of
    the
Highway Traffic Act
is struck for this instance, as it is contrary
    to section 7 of the
Charter of Rights and Freedoms
as it pertains to
    the security of person (at p. 19).

B.

the decision of the appeal judge

[22]

In
    conducting his review, the appeal judge noted that he had two advantages over
    the justice of the peace. First, he had the benefit of the recent decisions of
    the Ontario Court of Appeal and the Supreme Court of Canada in
Bedford v.
    Canada (Attorney General)
, 2012 ONCA 186, 109 O.R. (3d) 1, and
Canada
    (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101 (paras.
    33-34). Second, he had the benefit of fresh expert evidence that was not
    available at the time of trial (para. 95).

[23]

The
    appeal judge reviewed the evidence presented at trial, noting that Dr. Saccomanno
    and Ms. Cirillo agreed that both excess speed and speed variance were factors
    in the occurrence of motor vehicle accidents, but disagreed as to the relative
    importance of each factor (para. 55).

[24]

He
    observed that the [s]tudies reviewed by Dr. Saccomanno were either positive or
    neutral regarding the safety implications of speed limiters on trucks (para.
    64), and that Ms. Cirillo was not aware of any studies on speed limiters at
    all let alone a study that showed that speed limiters make speed variance more
    likely or that accident rates increase (para. 70).

[25]

The
    appeal judge then reviewed the Crowns fresh evidence. Dr. Saccomanno testified
    by way of a new affidavit and out-of-court cross-examination about a study
    released in March 2012, after the trial, by the United States Federal Motor
    Carrier Safety Administration
.
This new study, entitled
Research
    on the Safety Impacts of Speed Limiter Device Installations on Commercial Motor
    Vehicles: Phase II,
identified the impacts of commercial vehicle speed
    limiters on the frequency and severity of collisions.

[26]

The
    appeal judge quoted Dr. Saccomannos opinion that: the study has established a
    major empirical link between observed carrier crash rates and speed limiter
    use; it provided sound statistical evidence that truck speed limiters yield
    positive safety benefits in reducing crashes where speeding is a problem; and
    it provided a strong empirical counter-argument to the view that limiters
    increase speed variancelead[ing] to higher car-truck frequency (para. 87).

[27]

The
    defence relied on the responding evidence of Dr. Steven Johnson, a tenured
    professor of industrial engineering at the University of Arkansas,
    Fayetteville. Dr. Johnson had some involvement in the new study. He had been
    hired to assemble a panel of peer reviewers for the new study but had not
    reviewed it himself.

[28]

The
    appeal judge noted Dr. Johnsons opinion that the new studys conclusions were
    misleading and misrepresent the data from the study. The appeal judge clearly
    doubted Dr. Johnsons evidence, observing that he had not shared his concerns
    with the studys authors prior to its publication, and cited his repeated
    statements in cross-examination that he was not criticizing the study (paras.
    90-92). Dr. Saccomanno acknowledged that the study had some methodological and
    data infirmities but explained why they were not serious enough to undermine
    the reliability of its conclusions (paras. 93-94). The appeal judge accepted
    Dr. Saccomannos evidence.

[29]

The
    appeal judge concluded that the defence evidence had not established that the
    speed limiter deprived Mr. Michaud of his security of the person. In
    particular, he found that Mr. Michaud did not support his opinion that speed
    limiters endanger his life with any established facts beyond his anecdotes
    (para. 112). The appeal judge noted that Mr. Michaud described one occasion in
    which he accelerated to avoid a dangerous situation. This kind of situation was
    addressed by Dr. Saccomanno: according to a 2008 study by the U.S
    Transportation Research Board entitled Safety Impacts of Speed Limiter Device
    Installations on Commercial Truck and Buses, at p. 11, acceleration was used
    in fewer than two per cent of traffic conflicts to avoid potential crashes
    (para. 123). I infer that the appeal judge found this incidence of risk to be
de
    minimis
.

[30]

Further,
    the appeal judge found that Ms. Cirillo did not offer any evidence that speed
    limiters led to the speed differentials she identified as a greater cause of
    accidents than speeding (para. 102). And even if she had established a link
    between speed limiters and increased danger, the appeal judge found, in light
    of Dr. Saccomanno's evidence, that Ms. Cirillo had not established that speed
    differentials caused more accidents than speeding (para. 104).

[31]

The
    appeal judge accepted Dr. Saccomanno's evidence that speed limiters contribute
    to increased highway safety (paras. 135, 140). He found Dr. Saccomanno's
    evidence to be clear, unbiased, directly relevant to the issues before the
    court, and in line with common sense, noting that the same could not be said
    about the evidence presented on behalf of Mr. Michaud (paras. 141-43).

[32]

The
    appeal judge concluded, therefore, that Mr. Michauds evidence failed to
    establish that the speed limiter requirement deprived him of his s. 7 right to
    security of the person.

[33]

Although
    the appeal judges conclusion on this issue determined the appeal, he went on
    to consider whether Mr. Michaud had established that the speed limiter
    requirement was arbitrary and, as a result, was not in accordance with the
    principles of fundamental justice.

[34]

The
    appeal judge concluded that the legislation was not arbitrary because it was
    directly connected to its objectives of reducing truck emissions and improving
    highway safety (paras. 164-175). With respect to the latter objective, the
    appeal judge noted that the legislature's view that reducing truck speed would
    improve highway safety was supported by a number of safety organizations,
    similar legislation in other countries, and common sense (paras. 170-173). Further,
    the appeal judge concluded that the regulated maximum speed limiter setting of
    105 km/h was not arbitrary because it represents the maximum legal speed plus a
    five per cent margin of error (paras.156-57).

[35]

The
    appeal was allowed, but instead of entering a conviction against the deceased
    Mr. Michaud, the proceedings against him were stayed.

[36]

I
    now turn to the appeal questions.

C.

the First Question: What is the scope of an appeal to the Ontario court
    of justice on a Part I
POA
offence?

[37]

The
    prosecution was commenced by a certificate of offence, commonly known as a
    ticket, under Part I of the
POA
. The appellant submits that it was
    an error in principle for the appeal judge to use his review powers under Part
    I of the
POA
effectively to conduct a re-trial. Instead, he should
    have applied the more limited scope of appeal and the more deferential approach
    to the trial justices findings that would be required if this were an appeal
    under Part III of the
POA
.

[38]

The
    appellant makes two arguments in support of this submission. First, this was
    not a simple parking or by-law infraction defended against by a
    self-represented litigant or paralegal. Instead the trial involved experienced
    counsel, expert evidence and a two-day trial consisting primarily of legal argument
    under the
Charter
. The fact that the prosecution was started, in the
    discretion of a Ministry of Transportation officer, by a ticket and not by the
    laying of an information, is no more than irrelevant happenstance. The
    exhaustive trial process in this case was not typical of a Part I prosecution,
    the appellant argues, and should in principle have given rise to the more
    limited scope of review applicable to appeals under Part III.

[39]

Second,
    the appellant submits that the
POA
does not contemplate a re-trial of
    the sort conducted by the appeal judge, who did not defer to the trial
    justices credibility findings, but extensively re-weighed the evidence.

[40]

As
    I will explain after describing the context, there is no merit to these
    arguments. The appeal judges decision to admit fresh evidence required him to
    take a more expansive approach to all of the evidence.

(1)

The Context

[41]

Mr.
    Michauds truck was inspected at a Ministry of Transportation inspection
    station on the Queen Elizabeth Highway. The officer discovered that his speed
    limiter was set at 109.4 km/h, not to 105 km/h as required by the legislation.
    He issued a ticket to Mr. Michaud. This led to the prosecution under Part I of
    the
POA
, and eventually to this appeal.

[42]

The
POA
provides for provincial offences to be prosecuted in one of two
    ways. If the charging officer issues a ticket, then the prosecution follows the
    process in Part I of the
POA
, (or for parking infractions, under Part
    II). If the charging officer chooses to lay an information, then the
    prosecution follows the process in Part III of the
POA
.

[43]

It
    is no surprise that the charging officer issued a ticket under Part I of the
POA
.
    Administratively, it is expedient for officers in a busy highway inspection
    station to hand out tickets at the point of the infraction for traffic or other
    minor offences like the one at issue in this case. The laying of an information
    is a more protracted procedure requiring the involvement of a justice of the
    peace and is generally used for more serious charges. The choice is left to the
    charging officer. There was nothing atypical about the ticket in this instance
    and there is no suggestion that the officer abused his authority in issuing it.

[44]

I
    reject the appellants submission that the manner of proceeding was mere
    happenstance.

(2)

The Appeal Courts Procedural Powers in a Part I Appeal

[45]

Section
    135(1) of the
POA
provides that an acquittal, conviction or sentence
    in a proceeding commenced by certificate under Part I may be appealed to the
    Ontario Court of Justice. Section 136(2) of the
POA
stipulates that
    such appeals are to be conducted by means of a review. The appeal courts
    broad powers in conducting the review are set out in ss. 136(3):

(3)
In
    determining a review, the court may,

(a)     hear or rehear the recorded evidence or any
    part thereof and may require any party to provide a transcript of the evidence,
    or any part thereof, or to produce any further exhibit;

(b)     receive the evidence of any witness whether
    or not the witness gave evidence at the trial;

(c)     require the justice presiding at the trial to
    report in writing on any matter specified in the request; or

(d)     receive and act upon statements of agreed
    facts or admissions.

The appeal court has power to affirm, reverse or vary
    the decision under appeal, or to direct a new trial, under s. 138(1).

[46]

The
    appellant submits that the scope of appeal under Part I is broader than an
    appeal of a conviction under an information laid under Part III, which is
    instead governed by ss. 116 to 134 of the
POA
. I agree that this is
    generally true. See, for example,
R. v. Duma
, 2012 ONCJ 94, at para.
    24.

[47]

The
    centrality of legislative intent to the determination of the appropriate
    standard of review was recognized by Binnie J. in
Canada (Citizenship and
    Immigration) v. Khosa
[2009] SCC 12, [2009] S.C.R. 339, at para. 30, and
    by Rothstein J. in his concurring reasons, at para. 85.

[48]

As
    explained by Duncan J. in
R. v. Gill
(2003), 46 M.V.R. (4th) 230, [2003]
    O.J. No. 4761 (C.J.), at para. 11, the legislature clearly intended Part I
    appeals to be conducted as robust reviews, so that deference to the trial
    justice is limited to credibility findings:

I am of the view that I must review the record before me and
    reach my own conclusion on the issue. It is not a matter of deferring to the
    trial justice's conclusion and intervening only if I conclude that her decision
    was unreasonable. To approach it in that way would be to effectively transpose
    the Part III provisions to Part I and II appeals when the legislature took
    pains to distinguish between the two. However, where findings of credibility
    are in issue, I should accept the trial justice's findings unless they are
    unreasonable.

[49]

There
    is no basis in the legislation, case law or principle to depart from this
    robust review simply because the present case is not a typical Part I matter,
    as submitted by the appellant.

(3)

The Effect of the Fresh Evidence

[50]

The
    appellant submits that the appeal courts Part I review powers do not permit an
    appeal judge to engage in extensive re-weighing of the evidence or to interfere
    with credibility findings. The appellant argues that, in doing so, the appeal
    judge impermissibly conducted a re-trial.

[51]

The
    appellants argument ignores the important role played by the fresh evidence.
    In particular, Dr. Saccomanno, for the Crown, and Dr. Johnson, for Mr. Michaud,
    provided expert opinions on a new American study identifying the impact of
    speed limiters on the frequency and severity of crashes.

[52]

Once
    the fresh evidence was admitted, the appeal judge was obliged to consider it
    along with all of the other evidence, and to consider whether the trial
    justices views of the trial evidence were reasonable.

[53]

The
    appeal judge accepted the evidence of Dr. Saccomanno that speed limiters yield
    positive safety benefits, over what he found to be the somewhat contradictory
    evidence of Dr. Johnson. That evidence filled a hole in the Crowns case, which
    was identified by the trial justices finding that there was no empirical
    evidence establishing that the use of speed limiters had actually resulted in
    increased safety and a decrease in accident rates. The new study remedied that
    deficiency.

[54]

In
    my view, in light of the fresh evidence, the appeal judge was entitled if not
    obliged to re-assess all of the evidence under s. 136 of the
POA
. The
    issue of the sufficiency of the fresh evidence is well within the purview of an
    appeal judge reviewing a decision under Part I of the
POA
:
Gill
,
    at para. 11. So too is the power of the appeal judge to come to his own
    conclusion on all of the evidence, and to find, as he did, that the appellants
    evidence was not sufficient to establish on a balance of probabilities that the
    speed limiter requirement deprived Mr. Michaud of his right to security of the
    person.

[55]

Contrary
    to the appellants assertions, the appeal judge did not so much overturn the
    credibility findings of the trial justice, as qualify them in light of the
    fresh evidence. He did not find that Mr. Michaud and his expert witness, Ms.
    Cirillo, were not credible, but he found that the trial justice gave too much
    weight to their evidence in light of the opposing evidence of the Crowns
    expert witness, Dr. Saccomanno (para. 53).

[56]

The
    appeal judge relied on the fresh evidence in coming to this conclusion. He
    noted that Dr. Saccomannos testimony was clear, unbiased, directly relevant to
    the issues before the court, and in line with common sense; he did not find
    this to be true of Mr. Michaud and Ms. Cirillo (paras. 141-43). The assessment
    of the evidence is at the core of the appeal judges function under Part I of
    the
POA
[1]
.

(4)

Conclusion on the Scope of Appellate Review by the Ontario Court of
    Justice on a Part I
POA
offence

[57]

The
    appellant has not established that the appeal judge committed a palpable and
    overriding error, or an error in principle, in the way he approached his role
    or the evidence.

[58]

I
    would reject the appellants first ground of appeal, and answer the first
    question on this appeal as follows: The scope of an appellate review by the
    Ontario Court of Justice on a Part I
POA
offence pursuant to s. 135 of
    the
POA
, is broad. There is no need, in the circumstances of this
    case, to add judicial gloss to a well-understood review standard and appeal
    methodology.

D.

the second question: Is s. 68.1(1) of the
HTA
unconstitutional
    because it violates the right to security of the person under s. 7 of the
Charter
?

[59]

The
    appellant asserts that the legislation violates his right to security of the
    person under s. 7 of the
Charter
, which provides:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[60]

The
    onus is on the rights claimant under s. 7 of the
Charter
to establish
    that the impugned legislation deprives him or her of security of the person,
    and that the deprivation is not in accordance with the principles of
    fundamental justice. If the claimant succeeds in doing so, then the burden
    shifts to the respondent Crown, under s. 1 of the
Charter
, to justify
    the deprivation as a reasonable limit that is demonstrably justified in a
    free and democratic society.

[61]

The
    appellant relies on the analytical framework established by the Supreme Court
    of Canada decision in
Bedford
(more recently summarized by the Court
    in
R. v. Smith
, 2015 SCC 34). He argues that the legislation fails the
    s. 7 test because it is arbitrary in the
Bedford
sense. The
    appellant also argued in this court, but not below, that the impact of the
    legislation on him offends s. 7 because it is grossly disproportionate.

(1)

The Governing Principles: The
Bedford
Framework

[62]

In
Bedford
, the Supreme Court clarified the respective roles of s. 7 and
    s. 1 of the
Charter
in rights adjudication. Section 7 of the
Charter
is meant to assess the negative effect on the individual against the purpose
    of the law,
not
against societal benefit that might flow from the
    law. (para. 121). Section 7 of the
Charter
therefore does
not
consider the beneficial effects of the law for society (para. 121). (Emphasis
    in the quoted excerpts by the Supreme Court.) Section 7 focuses on the relationship
    between the individual claimant and the law, while s. 1 of the
Charter
focuses on the relationship between the private impact and the public benefit
    of the law (paras. 124-129).  The balancing function  whether the negative
    impact of the law on the rights of individuals is proportional to the pressing
    and substantial goal of the law in furthering the public interest - is
    addressed only in the s. 1
Charter
analysis (para. 125), after the
    claimant has established the s. 7 breach.

[63]

The
    corollary of s. 7s singular focus on the individual rights claimant is that an
    unacceptable impact on one person suffices to establish a breach of s. 7
    (para. 127), or to violate the norm (para.122). This singular focus has
    significant implications for the application of s. 7 of the
Charter
to
    safety regulation, as discussed below.

[64]

The
    first question in the s. 7 analysis is whether the law limits, or negatively
    impacts life, liberty or security of the person (
Smith
, para. 16,
Bedford,
para. 58). Security of the person has been defined over time to include the
    physical and psychological integrity of the person, including personal
    autonomy.  Possible negative effects on the preservation of a persons physical
    safety and wellbeing are clearly contemplated by security of the person. There
    must be, and there is in this case, a sufficient causal connection between the
    state-caused effect and the prejudice suffered by the claimant (
Bedford
,
    para. 75).

[65]

The
    second question in the s. 7 analysis is whether the limitation or
    deprivation imposed by the law on security of the person is contrary to the
    principles of fundamental justice (
Smith
, para. 21,
Bedford
,
    para. 93).

[66]

In
Bedford
the court referred to three negative principles of
    fundamental justice: arbitrariness, overbreadth, and gross disproportionality.
    The court noted that the jurisprudence has given shape to the content of these
    basic values (para. 96), and went on to outline them in a way that aims to
    maintain their distinctiveness while recognizing their overlap (para. 107)
[2]
.

[67]

The
    three principles of arbitrariness, overbreadth, and gross disproportionality
    recognize what Hamish Stewart calls the impugned legislations failures of
    instrumental rationality (
Fundamental Justice: Section 7 of the Canadian Charter
    of Rights and Freedoms
(Toronto: Irwin Law Inc., 2012), at p. 151).  The
    Supreme Court approved, at para.107 of
Bedford
, Peter Hoggs gloss:
    the Court accepts the legislative objective, but scrutinizes the policy
    instrument enacted as the means to achieve the objective. Professor Hogg
    added: If the policy instrument is not a rational means to achieve the
    objective, then the law is dysfunctional in terms of its own objective.
    ("The Brilliant Career of Section 7 of the Charter" (2012), 58
    S.C.L.R. (2d) 195, at p. 209.)

[68]

As
    the Supreme Court put it in
Bedford
, the first evil at which s. 7 is
    directed is an absence of connection between the laws purpose and the s. 7
    deprivation (para. 108).

[69]

The
    principle of arbitrariness exists where there is no direct or rational
    connection between the purpose of the law and the impugned effect on the
    individual, or if it can be shown that the impugned effect undermines the
    objective of the law (para. 111).

[70]

The
    principle of overbreadth is engaged by a law that is so broad in scope that
    it includes
some
conduct that bears no relation to its purpose. 
    Overbreadth exists where there is no rational connection between the purposes
    of the law and
some
, but not all of its impacts (para. 112) (emphasis
    by the Supreme Court). This principle recognizes that the law may be rational
    in some cases, but that it overreaches in its effect in others (para. 113). In
    the area of overreach the law is to be understood as arbitrary. That is why the
    principles of arbitrariness and overbreadth are related (para.117).

[71]

The
    principle of gross disproportionality under s. 7 [t]argets the second
    fundamental evil: the laws effects on life, liberty or security of the person
    are so grossly disproportionate to its purposes that they cannot rationally be
    supported. This rule only applies in extreme cases where the seriousness of
    the deprivation is totally out of sync with the objective of the measure
    (para. 120).

(2)

The Application of the Governing Principles from
Bedford

[72]

The
    appellant argues the legislation is arbitrary and grossly disproportionate in
    its impact on him, because it prevents him and similarly situated truck drivers
    from risk-avoidant speeding that in some instances would actually be consistent
    with the legislations objective of improving highway safety. This is better
    understood as overbreadth in the
Bedford
analysis. The Supreme Court
    found in
Bedford
that a negative impact affecting a single person was
    a sufficient basis for finding a breach of s. 7 of the
Charter
(para.127).

[73]

On
    a strict and literal reading of
Bedford
, I am compelled to find that
    the appellant has established the legislation deprived him of his right to
    security of the person in a manner that violated one of the negative principles
    of fundamental justice, thereby breached his s. 7
Charter
rights. Dr.
    Saccomannos expert evidence confirmed Mr. Michauds anecdotal evidence of
    needing on occasion to accelerate out of a dangerous situation. As the appeal
    judge noted, at para. 123, statistical studies have shown that acceleration to
    avoid collisions is needed in about 2% of traffic conflicts, as opposed to
    other evasive manoeuvers such as braking or steering. That evidence is
    sufficient to establish the first branch of the
Bedford
test; by
    preventing the appellant from accelerating beyond 105 km/h in all situations
    where it is needed to avoid collisions, the legislation imposes a danger that
    negatively affects his security of the person.

[74]

The
    second branch of
Bedford
addresses consistency with the principles of
    fundamental justice. Here, in the 2% of traffic conflicts where the truck
    driver needs to accelerate in order to avoid a collision, the legislation
    appears to be overbroad by the Courts definition in
Bedford
. (As I
    explain below, the actual proportion of traffic conflicts that would engage a
    trucks need to accelerate is smaller than 2%.) For trucks already moving at
    the maximum speed when a traffic conflict requiring acceleration occurs, the
    driver and others in the immediate vicinity on the road are put into an unsafe
    situation because the driver cannot accelerate; this is contrary to one of the
    purposes of the legislation, which is highway safety. For those in such a
    situation, the law contradicts its own purpose of improving highway safety; for
    them the legislation is overly broad and operates in an arbitrary manner, as
    the appellant claims. The singular focus of s. 7 under
Bedford
means
    that it is not possible to dismiss this prospect as a
de minimis
consequence of a beneficial safety regulation. And for an individual truck
    driver in the traffic conflict, the moment of danger is real.

[75]

Taking
    the
Bedford
analysis to its logical conclusion, even though the
    legislation would accomplish one of its goals by reducing the severity of
    collisions and another of its goals by modestly reducing greenhouse gases, it
    breaches s. 7 in its overbreadth. To paraphrase
Bedford
, truck speed
    limiters may be rational in some cases, but the legislation overreaches in
    its effect in others (para. 113). In the area of overreach the law operates
    arbitrarily.

(3)

Conclusion on the Application of Section 7 of the
Charter
to
    the Legislation

[76]

In
    my view, the logic of
Bedford
means that the appeal judge erred in his
    approach to the burden of proof on the appellant. It is implicit in his
    decision that he considered the burden to be on the appellant to prove that the
    regulatory trade-off in the design of the legislation results in a net negative
    safety outcome for Mr. Michaud.

[77]

However,
    the operative trade-off, as acknowledged by the experts in their evidence, was
    between the general benefit of a reduction in the speed of trucks brought about
    by the use of speed limiters, and the general detriment brought about by the
    increase in traffic turbulence created by speed variance that is a logical
    outcome of the use of speed limiters. These are statistical concepts.

[78]

The
    problem is that any statistical analysis of safety measures moves invariably
    into the balancing of risks and benefits across a population. That, as the
    Supreme Court clearly stated in
Bedford
, is the province of s. 1 of
    the
Charter,
not s. 7.

[79]

According
    to
Bedford
, the focus of s.7 is relentlessly on the individual claimant.
    If, as the result of legislation, a single individual is left in danger in even
    a single situation, then the legislation breaches the claimants s. 7
Charter
rights. Mr. Michaud meets that test in this case with respect to the speed
    limiter requirement for his truck. I reach this conclusion most reluctantly for
    the reasons set out below in the section entitled Reflections on
Bedford
.

[80]

On
    the strict application of
Bedford,
the legislation is constitutional
    only if it complies with s. 1 of the
Charter
. This gives rise to the
    third question for this appeal.

E.

the Third Question: Does section 1 of the
Charter
Save the
    Legislation?

[81]

Section 1 of the
Charter
requires the court to determine
    whether the legislations s. 7 infringement is reasonably and demonstrably
    justified in a free and democratic society. The onus is on the Crown seeking
    to uphold the legislation.

[82]

The court must determine first, whether the purpose of the law is
    pressing and substantial, and second, whether the means by which that purpose
    is advanced are proportionate. The proportionality analysis asks three
    questions: (1) Is the limit rationally connected to the purpose? (2) Does the
    limit minimally impair the right? (3) Is there proportionality between the
    deleterious and salutary effects of the law? (
Carter v. Canada (Attorney
    General)
, 2015 SCC 5, [2015] 1 S.C.R. 331
; R. v. Oakes
, [1986] 1
    S.C.R. 103).

[83]

The Supreme Court noted in
Carter
, at paras. 82, and
    94-95, that it would be difficult to justify an infringement of s. 7 under s.
    1, but added, at para. 95: in some situations the state may be able to show
    that the public gooda matter not considered under s. 7, which looks only at
    the impact on the rights claimantsjustifies depriving an individual of life,
    liberty or security of the person under s. 1 of the
Charter
. This, in
    my view, is one such situation. More are predictable in light of
Bedford
s
    instruction that the public good sought to be achieved by the challenged law
    can be considered only in the s. 1 analysis.

[84]

In this section of the reasons, I begin with a discussion of the
    relevant contextual factors relating to safety regulation, including risk
    assessment and regulation design, then consider why
safety
    regulations attract a lower level of constitutional scrutiny than criminal law,
    and conclude by applying the s. 1
Charter
analysis
    to the s. 7 breach in this appeal.

(1)

Contextual Considerations relating to Safety Regulation

[85]

It is perhaps trite to say that s. 1
Charter
analysis is
    contextual, fact-specific and detailed. There are two salient contextual
    factors relevant to this appeal. First, the area of legislative activity
    engaged is road safety, which shares features with safety regulation on a more
    general basis. Second,
risk assessment is critical to safety
    regulation, but it is difficult and uncertain, and implicates the physical
    health and safety of individuals, even mortality.

(a)

Safety Regulation

[86]

Safety concerns permeate the complex system of
    laws relating to the operation of motor vehicles, which must surely be one of
    the most common yet potentially dangerous activities carried out routinely by
    large numbers of individuals in modern society. Safety concerns underlie simple
    ordering rules like driving on the right hand side of the road, rules requiring
    obedience to traffic signals and signs, and the wide array of criminal offences
    relating to driving.

[87]

Further,
    safety regulation covers virtually all areas of human activity in our society,
    from the operation of motor vehicles, as in this case, to building codes,
    electrical codes, fire codes, protocols and standards for drug testing and
    dosages, pollution, food inspection, transportation by rail or air, liquor
    licensing, occupational health and safety, and so on.

[88]

Safety
    regulation often sets bright line rules, rather than standards. For example,
    the law prescribes speed limits on highways, in addition to the standard of
    requiring individuals to drive safely having regard to all of the relevant
    circumstances.

[89]

Rules
    have the advantage of being certain and knowable, but rules can be both over
    and under-inclusive given their purpose. While the purpose of speed limits is
    public safety, a bright line rule will not achieve that result perfectly. It
    might be, for example, that one driver can drive safely at the speed limit, and
    would be able to do so at a higher, but illegal speed. The speed limit is
    over-inclusive for this driver. Conversely, another driver might not be able to
    drive safely at the speed limit, and would only be able to do so at a lower
    speed. The speed limit is under-inclusive for this driver.

[90]

The
    legislation in this case implements a safety regulation by means of a bright
    line rule: the speed of trucks is mechanically limited, and the enforced speed
    is higher than the speed limit on Ontario roads.

(b)

Risk Assessment

[91]

In
    setting safety standards, trade-offs are often required. Two or more competing
    policy tensions must be reconciled in some way. In this case, the competing
    tensions are the need for mobility at a high speed for individuals and goods,
    on the one hand, and the prevention of collisions, on the other hand, which
    supports controlled and lower speeds.

[92]

As
    Todd L. Archibald, Kent W. Roach and Kenneth E. Jull observe in
Regulatory
    and Corporate Liability: From Due Diligence to Risk Management
(looseleaf)
    (Toronto: Canada Law Book, 2015) (
Risk Management
), at s. 1:60:

The democratic will supports the concept of speeding laws. The
    experts must determine what the appropriate maximum speed limits should be. A
    limit of 20 km/h on all highways would ensure that almost no one would die in a
    motor vehicle accident. The problem would be, of course, that the economy would
    grind to a halt at this speed. The ultimate calculation must assess risk to
    human life and health from one activity in contrast with the risk from another
    activity or side effect.

[93]

At
    the root of a typical safety trade-off is risk assessment, which incorporates
    the technique of cost-benefit analysis. One consideration is the possible harm
    to individuals, including mortality, of the activity in question. In
Simpler:
    The Future of Government
(Simon and Schuster, New York, 2013) Cass R.
    Sunstein notes, at p. 156: The best defense of cost-benefit analysis is that
    government should try to promote social welfare, broadly understood, and that
    cost-benefit analysis is a nudge toward achieving that goal  imperfect to be
    sure, but valuable nonetheless. There is no way to soft-soap the mortality
    element, although Professor Sunstein tries to do that at p. 158:

The key point is that in engaging in cost-benefit analysis,
    regulators do not really try to identify the monetary value of a human life.
    Instead they ask about
the value of eliminating a statistical risk of death
.
    That question, while hardly easy, is far more tractable. (Emphasis in
    original.)

[94]

Not
    surprisingly, Ontario has a Regulatory Policy, one of the principles of which
    is that regulations are based on assessed risks, costs and benefits. See
    Service Ontario,
Ontarios Regulatory Policy
(Toronto: Queens Printer
    for Ontario, 2015), online: Service Ontario <http://www.ontariocanada.com/registry/
    downloads/Ontario%20Regulatory%20Policy.pdf. This is also true for federal
    regulations: Treasury Board of Canada Secretariat,
Canada Cost-Benefit Analysis
    Guide: Regulatory Proposals
(Ottawa: Her Majesty the Queen in Right of
    Canada, 2007), online:
    http://www.tbs-sct.gc.ca/rtrap-parfa/analys/analys-eng.pdf.

[95]

The
    balancing of costs and benefits is in the very nature of regulatory design and
    its main challenge, as explained by Professor Sunstein in The Real World of
    Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers)
    (2014) 114 Colum. L. Rev. 167, at pp. 168-69:

[T]here is an elaborate literature on the problems of risk and
    uncertainty, and also on how regulators should deal with them. Situations of
    risk exist when we can identify outcomes and assign probabilities to each of
    them. Situations of uncertainty exist when it is possible to identify outcomes
    but not to assign probabilities. Both situations create serious challenges for
    regulators. We can imagine, for example, a regulation for which estimates of
    both benefits and costs span a wide range. Perhaps regulators cannot identify
    the probabilities that ought to be assigned to various points along the
    continuum. Even if they can do so, it may not be self-evident what ought to be
    done when benefits exceed costs at some points within the respective ranges,
    but fail to do so at others. [Footnotes omitted.]

[96]

The
    evidence in this appeal shows that there is a real debate between those who
    assert, like Dr. Saccomanno, that speed limiters enhance highway safety on
    balance, and those, like Ms. Cirillo, who assert that speed differences brought
    about by speed limiters cause traffic turbulence which increases the danger of
    collisions. That debate is found in the studies, including Dr. Saccomannos
    studies, and was a live issue at the trial and the first appeal.

[97]

The
    presence of real danger triggers the advisability of a safety regulation. But
    the absence of experience, the science, means that probabilities cannot be
    accurately assigned to identified outcomes. This uncertainty can be overcome
    with experience, as probabilities become known, and regulations can then be
    better tailored. Still, there is no way to eliminate the risk that is inherent
    in the activity, which is tolerated because of the beneficial aspects of the
    regulated activity.

[98]

Further,
    risk analysis often implicates human mortality. At the limit of any rule or
    standard that is implemented by a safety regulation, the regulator countenances
    the possibility that someone participating in the regulated activity will be
    put at risk of injury or even death.

[99]

In
    my view, the consequence of these realities is that much safety regulation, if
    it falls to be assessed under the singular approach required by
Bedford
,
    would be seen to be inconsistent with security of the person under s. 7 of the
Charter
.

(c)

The Design of Safety Regulations

[100]

Regulations
    having an
ex ante
or prospective orientation can take two forms: they
    can impose general behavioural standards to be met, such as requiring
    prospective licence-holders to demonstrate the capacity for the prudent
    operation of a motor vehicle, or they can provide specific rules, such as the
    requirement to have a speed limiter set at a particular speed
[3]
.

[101]

The legislation
    at issue here is a form of hybrid safety regulation. It has an 
ex ante
or precautionary aspect, because it imposes the speed limiter requirement
    that would prevent a certain kind of operation of a truck. It also has an 
ex
    post
or deterrent aspect, because compliance with the speed limiter
    requirement is enforced by penalties. Purely
ex post
regulations
    address safety issues by deterring unsafe behaviour with the threat of
    consequences.

[102]

There is good
    reason to favour
ex ante
rules where human life or safety is at stake
    and where there is scientific uncertainty as to the precise nature or magnitude
    of the possible harms. In such cases, regulators utilize a precautionary
    principle, which the authors of
Risk Management
note, tackles the
    problem of an absence of scientific certainty in certain areas of risk, and
    directs that this absence of certainty should not bar the taking of
    precautionary measures in the face of possible irreversible harm (1:40). The
    Supreme Court has recognized the precautionary principle in the context of
    environmental protection regulations:
114957 Canada Ltee v. Hudson (Town)
,
    [2001] 2 S.C.R. 241.

[103]

Although the
    problem of over-inclusiveness would not arise if the legislature had chosen to
    penalize speeding truck drivers instead of preventing them from speeding in the
    first place, the regulator has determined that the objective of highway safety
    is best met by a hybrid regulation that couples an
ex ante
precaution
    with an
ex post
consequence.

(2)

The Constitutional Scrutiny of Safety Regulations

[104]

The Supreme
    Court has always emphasized that
Charter
analysis is contextual,
    fact-specific and detailed, and the courts proper role will vary according to
    the right at issue and the context of each case and cannot be reduced to a
    simple test or formula:
Doucet-Boudreau v. Nova Scotia (Minister of
    Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 36.

[105]

Courts are
    guided by a number of cautionary principles, several of which come into play in
    this appeal. The first considers whether deference is due to the legislator or
    regulator. Justice McLachlin (as she then was) observed that deference varies
    with the social context and with the difficulty of devising legislative
    solutions to social problems which may be only incompletely understood by the
    court:
RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3
    S.C.R.199, at para. 135. She also observed, echoing Aristotle at para 89, of
R.
    v. Sharpe
, [2001] 1 S.C.R. 45:

The lack of unanimity in scientific opinion is not fatal.
    Complex human behaviour may not lend itself to precise scientific
    demonstration, and the courts cannot hold Parliament to a higher standard of
    proof than the subject matter admits of.

[106]

This
    court has noted that judicial deference to legislative choice is particularly
    appropriate where the legislation is concerned with public welfare or safety:
R.
    v. Timminco
(2001), 54 O.R. (3d) 21 (C.A.) and
Ontario (Ministry of
    Labour) v. Hamilton (City)
(2002), 58 O.R. (3d) 57 (C.A.).

[107]

Courts are to
    be sensitive to the separation of function among the legislative, judicial and
    executive branches:
Doucet-Boudreau
at para. 33. The Supreme Court
    added, at para. 35 of
Doucet-Boudreau
, quoting from
Vriend v.
    Alberta
, [1998] 1 S.C.R. 493, at para. 136: In carrying out their duties,
    courts are not to second-guess legislatures they are not to make value
    judgments on what they regard as the proper policy choice. See also
New
    Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)
,
    [1993] 1 S.C.R. 319, at 389,
R. v. Heywood
[1994] 3 S.C.R. 761, at
    para. 51.

[108]

The principle of
    separation of powers reflects the Supreme Courts understanding of the
    institutional competence of courts, as it noted in
Doucet-Boudreau
, at
    para. 34: In the context of constitutional remedies, courts must be sensitive
    to their role as judicial arbiter and not fashion remedies which usurp the role
    of the other branches of governance by taking on tasks to which other persons
    or bodes are better suited. The Court explained, at para. 57, that the
    principle requires the judiciary to be deferential not only to policy
    objectives, but to the specific means chosen to achieve those objectives: It
    would not be appropriate for a court to leap into the kinds of decisions and
    functions for which its design and expertise are manifestly unsuited.

[109]

The Supreme
    Court has recognized the need for technical expertise, something that
    ministries, government agencies and specialized tribunals possess, but courts
    do not. The wisdom of this approach is illustrated by analogy to the
    administrative law context. The Court has long required that courts defer to
    specialized expert decision makers in judicial review:
Dunsmuir v. New
    Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54;
Khosa,
at
    para. 25;
Canada (Canadian Human Rights Commission) v. Canada (Attorney
    General)
, 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 16.

[110]

The principle of
    due deference has given rise to the concept of margin of appreciation. As
    stated by Stratas J.A. in
Paradis Honey Ltd. v. Canada
, 2015 FCA 89,
    at para. 135, in the administrative law context this margin of appreciation
    can be narrow or wide depending on the nature of the question and the
    circumstances.  He added, at para. 136, that where the decision is suffused
    with subjective judgment calls, policy considerations and regulatory experience
    or a matter uniquely within the ken of the executive, the margin of
    appreciation will be broader and the court is less likely to reach the
    remedial stage.

[111]

The Supreme Court
    has recognized the conceptual harmony between judicial review in the
    administrative law framework and reasonableness review in the
Oakes
framework,
    since 
both contemplate giving a margin of appreciation, or
    deference, to administrative and legislative bodies in balancing
Charter
values
    against broader objectives:

Doré v. Barreau
    du Québec,
2012 SCC 12, [2012] 1 S.C.R. 395, at para. 57.

[112]

Another
    cautionary principle is based on the important distinction between regulatory
    and criminal offences. Regulatory offences do not attract the same level of
    moral blameworthiness:
R. v. Sault Ste. Marie (City)
, [1978] 2 S.C.R.
    1299 The regulatory nature of an offence colours the judicial interpretation of
    its constitutionality, 
with the result that regulatory offences
    are subject to a lower standard of
Charter
scrutiny:
Gonthier J., for the majority in
Ontario v. Canadian Pacific Ltd.
,
    [1995] 2 S.C.R. 1031, at para. 57. He added,
at para. 59,
that: 
Legislators must have considerable room to manoeuvre in
    the field of environmental regulation, and s. 7 must not be
    employed to hinder flexible and ambitious legislative approaches to
    environmental protection. This observation has general application: the
    expressions margin of manoeuvre and room to manoeuvre reflect the same
    concerns as margin of appreciation.

[113]

With the
    contextual considerations about safety regulation and the cautionary principles
    about judicial intervention in mind, I now turn to the application of s. 1
Charter
analysis to the s. 7 breach.

(3)

The Application of the Section 1
Charter
Analysis to the
    Section 7 Breach in this Appeal

[114]

In considering
    the application of s. 1 of the
Charter
to a breach of s. 7, the court
    must first determine whether the purposes, goals or objectives of the limit
    established by the impugned legislation are pressing and substantial.

(a)

Pressing and Substantial Objectives

[115]

It is not
    disputed that the governments goals in enacting the speed limiter legislation
    were to improve highway safety by preventing accidents and reducing the
    severity of collisions, and to reduce greenhouse gas emissions. The daily
    carnage on our roads shows that t
he operation of motor
    vehicles is one of the most common yet potentially dangerous activities carried
    out routinely by large numbers of individuals in modern society.
I
    accept that these objectives are pressing and substantial.

[116]

The s. 1
Charter
analysis next considers whether the means by which those purpose are
    advanced are proportionate: (1) Is the limit rationally connected to the
    purpose? (2) Does the limit minimally impair the right? (3) Is there
    proportionality between the deleterious and salutary effects of the law? I
    address these requirements in turn.

(b)

Rational Connection

[117]

The government
    must establish a rational connection between the infringement and the benefit
    sought on the basis of reason or logic (
RJR-MacDonald Inc.
at para.
    153;
Carter
, at para. 99). It must show that the limit is not
    arbitrary in the sense of being totally unconnected to the purpose for which it
    was enacted. In doing so, the government need only demonstrate a reasonable
    prospect that the limit will further the objective to some extent, not that it
    will certainly do so:
Alberta v. Hutterian Brethren of
    Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567,

at para. 48.

[118]

The government
    argues that requiring trucks to be equipped with speed limiters set at 105 km/h
    is rationally connected to the objectives of the legislation. By controlling
    the maximum speed at which truck drivers can drive, speed limiters reduce both
    the frequency and severity of highway accidents. Highway accidents involving
    trucks can be very dangerous, and reducing the severity of accidents therefore
    would improve highway safety.

[119]

The appeal judge
    relied on Dr. Saccomannos evidence to conclude, at para. 63, that trucks are
    20 to 30 times heavier than cars and require 20 to 40 percent longer stopping
    distances. Dr. Saccomanno noted, at para. 19 of his affidavit, that: The
    severity of a crash is also expected to be lower when speed limiters are
    involved due to lower speed and reduced dissipation of kinetic energy. The
    trial justices observation that once you are past a certain speed it does not
    matter (p. 15), is not supported by the evidence and is counterintuitive. The
    appellant does not contest the link between speed and the severity of
    collisions.

[120]

The expert
    evidence in this case, as accepted by the appeal judge, supports the Crowns
    argument. Beyond the argument about the permissible scope of the appeal
    addressed above in relation to the first issue, the appellant has not pointed
    to any palpable or overriding error in the appeal judges finding of fact, at
    para. 135, that the use of speed limiters does contribute to increased safety
    on the roads. Nor does the appellant point to any error in the appeal judges
    finding of fact that speed limiters contribute to reducing greenhouse gas
    emissions.

[121]

I therefore find
    that the speed limiter law is rationally connected to the goals of improving
    highway safety and reducing greenhouse gas emissions.

(c)

Minimal Impairment

[122]

In the minimal
    impairment analysis, the court asks whether there are less harmful means of
    achieving the legislative goal while at the same time deferring to the
    legislature in instances where it is better situated to choose among a range of
    alternatives:
Hutterian Brethren
, at para. 53;
Carter,
at
    para. 102. In order to satisfy this branch of the
Oakes
test, an
    alternative must achieve the purpose of the legislation to the same extent:
Hutterian
    Brethren
, at para. 54.

[123]

The Crown argues
    that the legislation is
minimally impairing
in
    improving highway safety by reducing the speed of trucks;
it
    regulates individual truck drivers only to the degree required to ensure they
    approach compliance with valid and unchallenged speed limits. It even allows them
    a 5% margin over the highest speed limit in Ontario.

[124]

Although the appellant did not make a fully developed s. 1 argument,
    the implication of his s. 7 argument is that the legislation is not minimally
    impairing, because in some traffic conflicts involving trucks it would be safer
    for a truck driver to be able to accelerate beyond the speed enforced by the
    speed limiter. The implicit submission is that the legislature should have
    found a way to achieve highway safety without totally removing truck drivers
    ability to accelerate above 105 km/h when it is in the interests of safety for
    them to be able to so do. For instance, the appellant argues, the use of
    traffic police officers and radar guns would accomplish the speed reduction
    objective.

[125]

There are two implied assertions to the appellants position: first,
the governments regulatory approach is unsound; and second, the 105 km/h speed
    limit set for the limiter is itself arbitrary. I reject both assertions.

(i)

The governments regulatory approach is not unsound

[126]

The government
    could choose from the three types of regulation: 
ex ante
or
    precautionary; 
ex post
or deterrent

to be enforced solely
    by penalties; or hybrid, being a combination of both. The hybrid model adopted
    by the government combines the effectiveness of both approaches in controlling
    the speed of trucks. This is entirely appropriate where human life or safety is
    at stake, and where there is scientific uncertainty as to the precise nature or
    magnitude of the possible risks.

[127]

The
Highway Traffic Act
and its regulations constitute a complex
    regulatory response to the social problem of motor vehicle and highway safety.
The regulatory structure is suffused with technical expertise
    related to safety, as the evidence in this case shows. T
here was a real
    debate between those who assert, like Dr. Saccomanno, that speed limiters
    enhance highway safety on balance, and those, like Ms. Cirillo, who assert that
    speed differences brought about by speed limiters cause traffic turbulence
    which increases the danger of collisions.
Where there is
    debate about countervailing risks in a situation of uncertainty, the regulator
    must make the call and did so. This is precisely where the judicial margin of
    appreciation comes to the fore and courts ought to defer.

[128]

As
    the Supreme Court noted in
Hutterian Brethren,
at para. 37:

Where a complex regulatory response to a
    social problem is challenged,
courts will generally take a more
    deferential posture throughout the s. 1 analysis
than
    they will when the impugned measure is a penal statute directly threatening the
    liberty of the accused.  The bar of constitutionality must not be set so high
    that responsible, creative solutions to difficult problems would be threatened.
    A degree of deference is therefore appropriate.

[129]

In
Carter
,
    the Supreme Court repeated, at para. 97, that a "complex regulatory
    response" to a social ill will garner a high degree of deference citing
Hutterian
    Brethren
. However, the Court added, at para. 98, that an absolute
    prohibition could not be described as a "complex regulatory
    response".

[130]

However, this is
    not a case in which the concept of prohibition can play a useful analytical
    role. Picking out one feature from a very complex regulatory structure is too
    granular an approach. Assuming that the limit could be seen as an absolute
    prohibition on excessive speeding by trucks, it does not automatically fail, as
    this court noted in
Cochrane v Ontario (A.G.)
(2008), 92 O.R. (3d) 321
    at para. 34 (pit bull ban).

[131]

The legislature
    has determined that the objective of ensuring highway safety cannot be not
    achieved satisfactorily without a blanket prohibition on speeding by trucks,
    enforced by speed limiters. As stated in
Hutterian Brethren
, a minimal
    impairment analysis does not require the government to institute less impairing
    measures that do not achieve its objective
[4]
.

[132]

The choice of the hybrid form of safety regulation, and the specific
    decision to require trucks to be equipped with speed limiters are uniquely
    within the purview of the regulator.

(ii)

The 105 km/h speed limit set for the limiter is not arbitrary

[133]

In the absence
    of specific evidence, the trial justice noted, at p. 17, that it can only be
    surmised that the 105 km/h figure was arrived at by the government without the
    benefit of science. His inference might actually be true given the state of
    the science. If so, is it fatal to the governments position? In my view it is
    not.

[134]

Once the policy
    decision was made to require truck speed limiters, the obvious question was: to
    what speed should trucks be limited? Although, as the appeal judge noted, truck
    speed limiters are becoming more prevalent in North America, the absence of
    experience on which the science would be based meant that Ontario had to select
    some number. Presumably, with experience, the number could change if it turned
    out not to be well tailored. The setting of any number in a safety standard has
    a degree of arbitrariness about it, in that the number could easily be slightly
    higher or slightly lower, but this is not arbitrariness in a constitutional
    sense.  There is nothing obviously outlandish or totally out of sync in the
    limit of 105 km/h.

[135]

In oral
    argument, in response to a question from the bench, counsel for Mr. Michaud
    said that he would be content with a speed limiter set to 110 km/h, since Mr.
    Michaud had set his limiter at 109.4 km/h. The fact that the live dispute in
    this appeal could boil down to a 5 km/h difference of opinion as to the maximum
    speed shows how necessary the margin of appreciation for regulators really is,
    and illustrates the inadvisability of the courts undertaking too searching an
    analysis of the legislative response to public safety concerns. Those qualified
    to assess the evidence and determine the appropriate response are the
    regulators and policy-makers who have developed expertise in precisely this
    type of regulation and the cost-benefit analysis it demands.

[136]

I would find
    that the legislative choice to set truck speed limiters at 105 km/h falls
    within the reasonable range of policy choices open to the government. The
    number reflects a 5% margin over the legal speeding limit and is well within
    the margin of appreciation or room to maneuver due to the regulator. I would
    find the speed limiter legislation to be minimally impairing.

(d)

The Proportionality of the Legislations Effects

[137]

The
    proportionality analysis under s. 1 of the
Charter
differs from the
    analysis undertaken at the second stage of s. 7 relating to the application of
    the principles of fundamental justice. The s. 1 analysis is prescribed by the
    Supreme Court in
Hutterian Brethren
: Is the limit on the right
    proportionate in effect to the public benefit conferred by the limit (para.
    73)? This analysis takes full account of the severity of the deleterious
    effects of a measure on individuals or groups (para. 76). It entails a broad
    assessment of whether the benefits of the impugned law are worth the costs of
    the rights limitation (para. 77), or whether the deleterious effects are out
    of proportion with the public good achieved by the infringing measure (para.
    78).

[138]

The task
    involves balancing the harm done to Mr. Michauds s. 7 right to security of the
    person, along with other truck drivers affected by the legislation, against the
    benefit to the public resulting from truck speed limiters set to 105 km/h.

[139]

At its highest,
    the evidence shows that in 2% of the traffic conflicts involving trucks, it
    would be less dangerous if a truck driver could accelerate to avoid a
    collision. It follows that in 98% of such traffic conflicts, the inability to
    accelerate does not expose the truck driver to harm. Braking, steering and
    other evasive manoeuvres are sufficient.

[140]

Moreover, the
    fact that acceleration is used as an evasive technique in only 2% of traffic
    conflicts does not support the appellants assertion that, in those situations,
    he must be able to accelerate up to speeds faster than 105 km/h in any event. I
    note that it is not clear from the evidence what proportion of the 2% is made
    up of trucks moving at maximum speed. Traffic conflicts also happen in
    situations where the truck is not at maximum speed, such as entering the highway
    (appeal decision para. 113), or exiting (appeal decision para. 114). The actual
    proportion of traffic conflicts that would engage a trucks need to accelerate
    would therefore be smaller than 2%. The 2% statistic might overstate the
    deleterious effects on Mr. Michaud and his colleagues having their speed
    limiters set to 105 km/h.

[141]

With respect to
    Ms. Cirillos contention that the speed limiters cause traffic turbulence,
    which is itself dangerous, the appeal judge found, at para. 70, that Ms.
    Cirillo was not aware of any studies on speed limiters at all let alone a
    study that showed that speed limiters make speed variance more likely or that
    accident rates increase. The appeal judge found, in the context of making out
    Mr. Michauds s. 7 claim where the onus was on the appellant, at para. 102,
    that Ms. Cirillo did not offer any evidence that speed limiters lead to the
    speed differential she identified as a greater cause of accidents than
    speeding. Finally, the appeal judge found.at para. 104, that, in light of Dr.
    Saccomanno's evidence, Ms. Cirillo did not establish that speed differential
    caused more accidents than speeding.

[142]

The evidence
    shows that forced speed reduction for trucks saves lives. As noted, the appeal
    judge accepted Dr. Saccomanno's evidence that speed limiters contribute to
    increased highway safety (paras. 135, 140). There was undisputed evidence that
    speed limiters decrease the severity of accidents. There was also evidence that
    speed limiter reduce the frequency of accidents. The appeal judge accepted this
    evidence (para. 60).

[143]

In light of
    these findings, the established salutary effects of the speed limiter
    legislation outweigh its less well-established deleterious effects. There is no
    evidence that the effects of the speed limiter legislation are out of all
    proportion to its objectives:
Bedford
, at para. 22.

(e)

Conclusion on the Section 1
Charter
Analysis

[144]

To summarize, I
    would find, on the evidence, that the purposes of the speed limiter legislation
    for trucks, being the improvement of highway safety and the reduction of
    greenhouse gases, are pressing and substantial. The means by which these
    purposes are advanced are proportionate in that: the limiter legislation is
    rationally connected to the purposes; in terms of the margin of appreciation due
    to the regulator, the speed limiter legislation minimally impairs the s. 7
    right to security of the person of truck drivers; and there is proportionality
    between the deleterious and salutary effects of the legislation, since the
    public benefits associated with improved highway safety exceed the detrimental
    effects on the s. 7 right of truck drivers.

[145]

I would uphold
    the legislation under s. 1 of the
Charter
. The Crown has justified the
    breach of Mr. Michauds s. 7
Charter
right as a reasonable limit
    that is demonstrably justified in a free and democratic society under s. 1 of
    the
Charter
.

(4)

Reflections on
Bedford

[146]

Earlier I
    expressed my reluctance to find that the legislation breached s. 7 of the
Charter
,
    but said that I felt compelled to do so based on the Supreme Courts decision
    in
Bedford.
In
Canada v. Craig
2012 SCC 43, [2012] 2 S.C.R.
    489, at para. 21, intermediate courts of appeal were instructed to apply the
    law the Supreme Court laid down, but then explain why the court finds doing so
    to be problematic. I offer these observations in that spirit.

[147]

Section 7 of the
Charter
uses strong language in saying: Everyone has the right to
    security of the person and the right not to be deprived thereof except in
    accordance with the principles of fundamental justice. It seems strangely
    incongruous to consider highway safety regulation, or any safety regulation, as
    depriving anyone of security of the person or of engaging the principles
    of fundamental justice in the sense demanded by s. 7, especially since it is
    regulatory and not criminal law.

[148]

Mundane but
    critically important safety regulation seems to back into problems with s. 7
    for two reasons, as explained above: first, as an artifact of the nature of
    risk assessment and risk management, which often implicates human mortality,
    because at the limit of any rule or standard that is implemented by a safety
    regulation, the regulator countenances the possibility that someone will die or
    be killed in the regulated activity; and second, as a result of regulatory
    design. When a regulator uses a precautionary or hybrid regulation, such as the
    one in issue in this appeal, the regulator chooses a pro-active bright-line
    rule in preference to a general behavioural standard, even though such a rule
    is usually over-inclusive and errs on the side of safety. These are legitimate
    and reasonable uses of governmental authority.

[149]

In my view,
    these typical features of safety regulation do not truly engage either
    deprivation of security of the person or the constitutional principles of
    fundamental justice; the idea that they do risks trivializing these concepts
[5]
.

[150]

The incidental
    effect of the
Bedford
analysis is that many safety standards that are
    based on risk assessments will be subject to challenge and to judicial scrutiny
    under s. 7 of the
Charter
. The problem comes from two different
    aspects of the analysis. The first is its singular or individual focus coupled
    with the Courts description of arbitrariness, overbreadth and gross
    disproportionality as principles of fundamental justice. The second relates to
    an apparent softening of the strong
Charter
language of deprivation by
    the looser language of limits or negatively impacts (
Bedford,
para. 58). A negative impact seems much easier to establish than a deprivation.

[151]

Perhaps the way
    forward for the
Charter
evaluation of safety regulations is to
    recognize them as a distinct category of legislation, and to require the
    claimant to establish overbreadth or gross disproportionality under s. 7 not on
    an individual basis, but on a more general basis, balancing the effects on the
    individual claimant and similarly affected persons together against the effects
    of the regulation on the intended beneficiaries. (I recognize this would
    retrench on the Supreme Courts restatement of the respective roles of s. 7 and
    s. 1 of the
Charter
in
Bedford
.)

[152]

Outlier
    situations, in which a legislature or regulator uses a safety regulation for an
    improper collateral purpose, or where the regulator makes a gross error, are
    imaginable. But these would be amenable to judicial sanction under the ordinary
    principles of administrative law. Cases have held that governments ought to be
    free to make public policy choices in regulating plainly hazardous activities.
    A
Charter
response seems exaggerated and unnecessary.

[153]

In
R. v.
    Transport Robert (1973) Ltée.
[2003] O.J. No. 4306, 180 C.C.C. (3d) 254
    (Ont. C.A.) this court cautioned against overly enthusiastic judicial review in
    the context of road safety. In that case, legislation creating absolute
    liability if a truck drivers wheel fell off during travel was challenged under
    s. 7 of the
Charter
. The claimants argued that the penalty created
    psychological stress and thereby infringed their security of the person. In
    response, Laskin J.A. wrote, at para. 29:

The right to the security of the person does not protect the
    individual operating in the highly regulated context of commercial trucking for
    profit from the ordinary stress and anxieties that a reasonable person would
    suffer as a result of government regulation of that industry. As Lamer C.J.C.
    said in
G. (J.)
[
New Brunswick (Minister of Health and Community
    Services) v. G.(J.)
, [1999] 3 S.C.R. 46] at para. 59, if the right were
    interpreted with such broad sweep, countless government initiatives could be challenged
    on the ground that they infringe the right to security of the person,
massively
    expanding the scope of judicial review
and, in the process,
    trivializing what it means for a right to be constitutionally protected.

[154]

I agree.

F.

Disposition

[155]

To recapitulate,
    I would reject the appellants first ground of appeal. The appellant has not
    established that the appeal judge committed a palpable and overriding error, or
    an error in principle, in the way that he approached the evidence or his role.
    The appeal judge did not exceed the scope of appellate review by the Ontario
    Court of Justice on a Part I
POA
offence under s. 135 of the
POA
.

[156]

I would give
    effect to the appellants second ground of appeal respecting the application of
    s. 7 of the
Charter
. As the result of legislation, Mr. Michaud meets
    the
Bedford
test, since the speed limiter requirement for his truck
    leaves him in physical danger in some situations.

[157]

I would uphold
    the legislation under s.1 of the
Charter
. The Crown has justified the
    breach of Mr. Michauds s. 7
Charter
right as a reasonable limit
    that is demonstrably justified in a free and democratic society under s. 1 of
    the
Charter
. Accordingly, I would dismiss the appeal.

Released: August 31, 2015 (DW)

P.
    Lauwers J.A.

I
    agree David Watt J.A.

I
    agree C.W. Hourigan J.A.





[1]
I observe that even if the appeal had proceeded under Part III of the
POA
,
    the appeal judge would have been obliged to establish a process for the
    reception and testing of the fresh evidence. The method he used in this appeal
    would have been consistent with his authority under Part III of the
POA
and with the powers of an appeal court under s. 683 of the
Criminal Code
,
    R.S.C., 1985, c. C-46, on which Part III is modeled.



[2]
In
Bedford
the court referred to arbitrariness, overbreadth, and gross
    disproportionality  variously as values (paras. 96, 105), principles,
    (paras. 106, 107) and concepts (para. 97), which implies that they are
    analytical synonyms.



[3]
The authors of
Risk Management
use speed limiters as an example of a
    rules-based
ex ante
solution (2:15:30).



[4]

I note in passing that the trial justice impugned the governments
    assertion that it relied on 18 months of research to back the need for
    introducing speed limiters, yet Dr. Saccomannos research was not published
    until after the introduction of the legislation in 2009 and refers to the
    introduced legislation.(p.16)
Regulators have knowledge, information,
    experience and expertise on which they can act without waiting for published
    peer  reviewed articles in professional journals.



[5]
See
Law Society of British Columbia v. Andrews
, [1989] 1 S.C.R. 143, at
    para. 43, where McIntyre J. adopted a description of s. 15, which I would
    paraphrase and apply here: The broader the reach given to section 7, the more
    likely it is that it will be deprived of any real content.


