



COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v. Becker Bros. Trucking Inc., 2021 ONCA 654

DATE: 20210924

DOCKET: C68464

Feldman, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her
    Majesty the Queen in Right of Ontario

(as
    represented by the Ministry of Transportation)

Appellant

and

Becker
    Bros. Trucking Inc.

Respondent

Patrick Moore, for the appellant

James Manson, for the respondent

Heard: September 2, 2021 by video conference

On appeal from the judgment of Justice G. Mark
    Hornblower of the Ontario Court of Justice, dated January 31, 2020, allowing an
    appeal from the conviction entered by Justice of the Peace Salma Jafar of the
    Ontario Court of Justice, dated November 27, 2018.

By the Court:

[1]

The Crown, as represented by the Ministry of
    Transportation, appeals, with leave, from the judgment of the appeal judge, who
    allowed an appeal and set aside a conviction imposed on the respondent for an offence
    contrary to s. 84(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the
    
HTA
). For the following reasons, we would allow the appeal and
    reinstate the conviction and sentence imposed.

A.

Background

[2]

On October 4, 2017, Ministry of Transportation (the
    Ministry) inspectors on duty at the truck inspection station on Highway 401
    in the Town of Lakeshore stopped and inspected a commercial motor vehicle
    combination consisting of a three-axle tractor used in conjunction with a
    three-axle trailer.

[3]

During the inspection, the inspectors checked
    the adjustment on the brakes of the trailer. Four of the six brakes were
    substantially beyond the push rod adjustment limits set by regulation. A
    trailer with such a severe air brake adjustment flaw has a critical defect
    within the meaning of Ontario Regulation 512/97 made under the
HTA
.

[4]

A Ministry inspector requested documents from
    the truck driver, including the truck permit, trailer permit, Commercial Motor
    Vehicle Operator's Registration certificate, driver's daily log, and vehicle
    inspection report. She made photocopies of the documents and verified that they
    were the same as the originals.

[5]

Subsection 84(1.1) of the
HTA
deems a
    commercial motor vehicle with a critical defect to be in a dangerous or unsafe
    condition. Charges were laid under section 84 of the
HTA
against the
    driver for operating a combination of vehicles in a dangerous or unsafe
    condition and against the respondent for permitting the operation of the
    vehicles.

B.

The decisions below

(1)

The Trial

[6]

A trial of the charges was heard before a Justice
    of the Peace of the Ontario Court of Justice under the
Provincial Offences
    Act
, R.S.O. 1990, c. P.33. At trial, the respondent was linked to the
    unsafe tractor-trailer both by documents that appeared to have been copied from
    the Ministry records and by the photocopies of the documents received from the
    driver. The various documents showed that the respondent was the permit holder
    for the commercial motor vehicle and the trailer, the holder of the Commercial
    Motor Vehicle Operator's Registration certificate, the operator, and the
    carrier.

[7]

The copies of the Ministry documents presented
    as evidence by the prosecution purported to be certified copies of Ministry
    records of the truck and trailer ownerships and the Commercial Motor Vehicle
    Operator's Registration information. The copies of the Ministry documents were
    stapled to a cover sheet, which cover sheet included the Ministry of
    Transportation seal, the signature of the Registrar of Motor Vehicles, the date,
    and a certification recital.

[8]

The certification recital included the following
    wording:

I hereby certify that the paper or papers
    annexed hereto constitute true statements containing information from the
    records of the Ministry of Transportation required to be kept under the Highway
    Traffic Act.

[9]

At trial, the defence objected to the admission
    of the first such record, that is, the permit information for the commercial
    motor vehicle. A
voir

dire
was requested. The Justice
    of the Peace ruled that the document should be admitted into evidence without a
voir

dire
because the requirements of s. 210 of the
HTA
for admission of a certified record had been met.

[10]

There was no objection at trial to the
    introduction of other, similarly certified, records identifying the respondent
    as the trailer owner and the holder of the Commercial Motor Vehicle Operator's
    Registration certificate.

[11]

The photocopies made by the inspector of the
    documents surrendered by the driver were also entered as exhibits at trial.
    These included the commercial motor vehicle permit, the trailer permit, the Commercial
    Motor Vehicle Operator's Registration certificate, and the combined log and
    trip inspection report. There were no objections to the admission of the copies
    into evidence. There were also no objections when the inspector used the copies
    to identify the respondent's positions of responsibility for the tractor-trailer.

[12]

No evidence was adduced at trial by the defence
    to contradict, rebut, or call into doubt the accuracy of the information shown
    in any of the certified Ministry records or in any of the documents received
    from the driver.

[13]

The Justice of the Peace convicted both the
    driver and the respondent of the charges.

(2)

The Appeal

[14]

On appeal, the appeal judge ruled that the certified
    documents of the Ministry records were inadmissible. He found that s. 210 of
    the
HTA
had not been complied with. Specifically, the appeal judge
    found that it was insufficient for the certificate to have used general terms
    to refer to the Ministry records attached to the certifying front page. The
    appeal judge said:

In order to meet the statutory requirement in s.
    210(7) that the copy of the document purports to be certified by the Registrar
    as being a true copy, the certificate needs to state the nature of the
    document, in this case, a vehicle record. Simply referring to the paper or
    papers attached is too vague to comply with the statutory requirement. The
    statute not having been complied with, the certificate should not have been
    admitted into evidence.

[15]

The appeal judge also ruled that the copies of the
    documents received by the Ministry inspector from the driver, that identified
    the respondent as the owner of the truck and trailer and the holder of the
    relevant Commercial Motor Vehicle Operator's Registration certificate, were not
    admissible against the respondent for the truth of their contents. In so
    ruling, the appeal judge did not refer to s. 216.1 of the
HTA
,
which specifically provides for the introduction into evidence of copies of
    documents received from commercial motor vehicle drivers.

[16]

The appeal judge quashed the conviction of the
    respondent. However, he upheld the conviction of the driver. It is the decision
    with respect to the respondent that now comes before this court, with leave having
    been granted.

C.

Analysis

[17]

In our view, the appeal judge erred in both of
    his conclusions.

(1)

The Certificates

[18]

Turning first to the certified copies of the
    documents from the records of the Ministry, s. 210(7) of the
HTA
reads:

A copy of any document filed in the
    Ministry under this Act, or any statement containing information from the
    records required to be kept under this Act, that purports to be certified by
    the Registrar under the seal of the Ministry as being a true copy of the
    original shall be received in evidence in all courts without proof of the seal,
    the Registrars signature or the manner of preparing the copy or statement, and
    is proof, in the absence of evidence to the contrary, of the facts contained in
    the copy or statement.

[19]

It is evident that s. 210(7) does not specify the
    form of certification. The respondent relies on related provisions to argue
    that the certification, including the seal of the Ministry and the Registrars
    signature, must be placed directly on the copy. Those related provisions
    read, with emphasis added:

210(8) The Registrars signature
on
a copy or a statement described in subsection (7) may be an original signature
    or an engraved, lithographed, printed or otherwise mechanically or
    electronically reproduced signature or facsimile signature.

210(9) The seal of the Ministry
on
a copy or statement described in subsection (7) may be affixed by impression or
    may be engraved, lithographed, printed or otherwise mechanically or
    electronically reproduced seal or facsimile of a seal.

210(10) The Registrars signature
on
a copy or statement described in subsection (7) nee only be on the first page
    of the copy or statement.

210(11) The seal of the Ministry
on
a copy or statement described in subsection (7) need only be on the first page
    of the copy or statement if the following pages are sequentially numbered, by
    hand or otherwise; if the pages following the first page are not sequentially
    numbered, the seal must be on each page.

[20]

Curiously, despite maintaining that these
    provisions of the
HTA
require the Registrars signature and the
    Ministry Seal to be directly on the copy, the respondent supports the appeal
    judges position that certification can be accomplished using a cover sheet, so
    long as the cover sheet specifically describes the documents being certified.
    No attempt was made to explain how this form of certification is grounded in
    the legislation, despite ss. 210(8) - 210(11).

[21]

It is important to note that s. 210(7) refers to
    both a copy of any document and any statement containing information from the
    records. The legislation therefore contemplates proof by certified documents,
or
by a certified statement containing information from the records. Had the certification,
    including the Registrars signature and the Ministry Seal, been placed directly
    on the first page of each photocopy, those documents would clearly have been certified
    copies of Ministry documents.

[22]

However, we do not need to decide whether copies
    that are certified by cover page are certified documents under s. 210(7) of the
HTA
because the documents admitted into evidence were certainly
    certified statements within the meaning of s. 210(7).  Without question, a
    typed document duplicating the content of a Ministry document would have qualified
    as a statement. It would be illogical if a document that states that appended
    photocopies are from the Ministry records did not similarly qualify as a
    statement containing information from the records.  That is what was offered
    into evidence in this case. Indeed, the certification by the Registrar referred
    to statements containing information from the records of the Ministry. The
    documents attached to the certificate appeared, on their face, to be such
    statements and the cover page formed part of that statement. The Registrars
    signature, and the seal of the Ministry, were on the first page of each such
    document. The documents were therefore admissible.

[23]

Another relevant consideration on this issue is
    that subsection 210(7) only makes the documents presumptively admissible. The
    subsection contains an express provision that, if contrary evidence is led,
    then the documents are not proof of the facts contained in the statement. Thus,
    a person charged with an offence is protected from a certified document that is
    inaccurate. As earlier noted, no such contrary evidence was led in this case.

(2)

The Documents Produced by the Driver

[24]

Given our conclusion on the first ground, it is
    not technically necessary for us to address the second ground. We do so,
    however, because it was argued and because the appeal judge addressed it as
    part of his reasons on the appeal. Further, we are aware that this issue has
    arisen in other cases.

[25]

In terms of the second ground of appeal, the
    appeal judge ruled that the copies of the documents that the inspector took
    from the driver, while admissible against the driver, were not admissible in
    evidence for the proof of their contents as against the respondent because,
    having ruled that the certificates were inadmissible, there was no proof of the
    respondents ownership of the unsafe vehicles. The appeal judge relied on two
    decisions in reaching his conclusion about these documents:
R. v. Swish
    Maintenance Limited
, [2005] O.J. No. 3958 (C.J.) and
R. v. 2934752
    Canada Inc. (c.o.b. Highland Transport)
, (1997) 17 M.V.R. (4th) 48 (Ont.
    C.J.).

[26]

In our view, neither of these decisions is of
    assistance in this case. In
Swish

Maintenance
, it does
    not appear that the officer took a copy of the documents but, rather, just
    relied on his notes. In addition, there were no certified copies from the
    Ministrys records offered in evidence. The same appears to have been the case
    in
2934752 Canada Inc.

[27]

Of more importance, however, is the fact that
    the appeal judge did not make any reference to s. 216.1 of the
HTA
in
    his reasons. That section requires, among other things, the driver, operator,
    or other person in control of the vehicle to surrender all documents relating
    to the ownership and operation of the vehicle. It also permits an officer to
    make copies of such documents. Once copies are made, those copies may be
    admissible in evidence under s. 216.1(5), which reads:

Any copy made as provided in
    subsection (4) and certified to be a true copy by the person making it is
    admissible in evidence in any proceeding as proof, in the absence of evidence
    to the contrary, of the original document and of the contents of the original
    document.

[28]

The appellant contends that the documents
    produced to the inspector are admissible under s. 216.1(5). We are inclined to
    agree with that contention. The inspectors sworn evidence could be seen as being
    a sufficient certification of the documents to make the subsection apply. Indeed,
    it would be more direct evidence of the copies being true copies than a formal
    certificate would be. Further, such an approach to the subsection would accord
    with its apparent purpose and would be consistent with affording the subsection
    such fair, large and liberal interpretation as best ensures the attainment of
    its objects:
Legislation Act
, 2006
, S.O. 2006, c. 21, Sched. F,
    s. 64(1).

[29]

Regardless of that issue, though, the documents
    were admissible since they fall under an exception to the hearsay rule. The
    copies of the documents that were placed into evidence through the inspector
    are all documents that are required by the
HTA
to be carried in the
    vehicle. For example, s. 7(5) of the
HTA
requires every driver of a
    motor vehicle on a highway to carry the permit for it. Similarly, s. 16(3)
    requires every driver of a commercial motor vehicle to carry the original or a
    copy of the CVOR certificate issued to the operator of the vehicle. We also
    note that s. 261.1(3) requires the driver, operator or other person in control
    of the vehicle to surrender all documents relating to the ownership and
    operation of the vehicle.

[30]

Thus, the copies of such documents obtained by
    an inspector by virtue of s. 216.1, when placed into evidence, constitute
    evidence of the ownership of the vehicle once the owner, or an agent of the owner
    such as the driver in this case, produces them. The production of the documents
    relating to the ownership of the vehicle required by the
HTA
to be
    kept, and produced on request, are receivable against the owner as admissions
    to prove the truth of their contents, pursuant to the documents in possession
    branch of the admissions exception to the hearsay rule:
Bukshtynov v.
    McMaster University
, 2019 ONCA 1027, at para. 19. Again, there was no
    evidence to the contrary.

[31]

The appeal judge erred both in ruling that the
    statement from the Ministrys records was inadmissible and in ruling that the
    copies of the documents that the inspector received from the driver were
    inadmissible for the truth of their contents as against the respondent. His
    decision to quash the conviction based on those rulings cannot stand and must
    be set aside.

(3)

The Proposed Fresh Evidence

[32]

Finally, we address the fresh evidence motion
    brought by the respondent. Through the motion, the respondent seeks to place
    before this court what it says are examples from other prosecutions where the certificate
    from the Ministry contained more particular descriptions of the records
    attached. We would not admit the fresh evidence. It does not satisfy the test
    from
Palmer v. The Queen
, [1980] 1 S.C.R. 759, for the admission of
    fresh evidence in at least two respects. One is that the evidence could, by due
    diligence, have been adduced at trial. The other is that the evidence could not
    be expected to have affected the result. The trial judge would still have had
    to determine what the wording of s. 210 of the
HTA
did or did not
    require.

D.

Conclusion

[33]

We allow the
    appeal, set aside the judgment below, and reinstate the conviction and the
    sentence imposed on the respondent.

Released: September 24, 2021 K.F.

K.
    Feldman J.A.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.


