,., ,.. ... ~ / l .. : Cite as: R. v. Strang, 1992 NSCA 83 IN THE SUPREME COURT OF APPEAL DIVISION Jonesr Hart and Hallettr JJ.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and LELAND LLOYD STRANG Respondent - and - HER MAJESTY THE QUEEN Appellant - and - JOHN WAYNE LUNN Respondent THE COURT: Appeal against Strang allowed, verdict of acquittal set aside, matter referred to Provincial Court for a trial; Appeal against Lunn dismissed, per reasons for judgment of Hart, J.A., Jones and Hallett, JJ.A. concurring. s.c.c. Nos. 02400 & 02408 NOVA SCOTIA ) Kenneth W.F. Fiske ) for the Appellant ) ) ) Leland Lloyd Strang . ) not represented ) ) ) Robert L. Barnes ) for the Respondent Lunn ) ) ) Appeals Heard: ) November 28, 1991 ) ) Judgment Delivered: ) January 10, 1992 ) ) ) ) ) ) ) ) new
HART, J .A.: These two summary appeals of Section 193 of the Motor Vehicle Act, R.S.N.S. 1989, c. The important provisions controlling the weights of vehicles upon highways are as follows: Officer may require vehicle to be weighed 192(1) Any peace officer that the weight of a vehicle of the maximum permitted under this Act, the Public or regulation is authorized either by means of portable and may require that the nearest scales, in the event a distance of 8 kilometres. Officer may require unloading (2) The officer may then unload immediately such portion be necessary to decrease the of the vehicle to the maximum in the regulations. Portable weighing device (3) In lieu of proceeding weight of the load may be weighing device provided by it shall be the duty of the driver to facilitate the weighing by any such device. Failure to comply ( 4) Any driver . who, when to such scales or to assist vehicle in his charge, refuses shall be guilty of an offence. R.S., c. 191, s. 1970, c. 53, s. 18; 1978-79, c. 29, s. 1. Proof of scale reading is prima facie evidence 193 In a prosecution proof involve the constitutionality 293. of the Motor Vehicle Act having reason to believe and load is in excess by any regulations made Highways Act or any Act to weigh the vehicle or stationary scales, vehicle be driven to the such scales are within require the driver to of the load as may gross or axle weight therefor specified to such scales, the determined by a portable the peace officer and of the vehicle of the vehicle and load so required to proceed in the weighing of a or fails to do so 173; of the reading of any
2 scale or weighing device of the accuracy of the scale or weighing device of the reading. 1977, c. 35, s. 20. The respondent Strang was with a load of gravel near Clyde River on March 19, was stopped by Inspector Bullerwell of Mr. Strang, his truck was shown to be 6,900 kilograms overweight. The respondent was charged as follows: At or near Clyde River, Shelburne County, Nova Scotia, on or about the 19th day of March, 1990, did unlawfully commit the offence of operating upon a public highway, a motor vehicle having a single axle weight of 134000 kilograms, being in excess 6500 kilograms permitted Reg. 94/90 made pursuant Public Highways Act. The trial proceeded before Judge Woolaver of the Provincial Court. Inspector Bullerwell was end of the case, counsel were given permission to submit briefs on behalf of their respective clients. Before any decision was reached was advised that a decision Honourable Judge Bateman of the Queen declaring that section 193 of the unconstitutional. Judge Woolaver that decision and he found Mr. Strang not guilty of the offence with which he was charged. On September 25, 1989, the by the Deputy Chief of Police is prima facie evidence and operating his two-axle truck 1990. He and with the assistance weighed on portable scales and by 6900 kilograms of the by paragraph (a) of N.S. to Section 20(1) of the the only witness and at the by the trial judge, he had been handed down by the County Court in Boyd v. The Motor Vehicle Act was considered himself bound by respondent Lunn was observed of Bedford driving his truck
3 loaded with rock and directed Mr. lot adjacent to the highway where weighed the suspected overweight vehicle. Mr. Lunn was instructed to drive his vehicle of portable scales and the truck was kilograms overweight. Mr. Lunn was charged as follows: That he at or near Highway County, Nova Scotia, on or September, 1989, did unlawfully of operating an overweight vehicle contrary to Section 2(l)(d) of the N.S. Reg. 30/80, 5, Column C and "B", Figure 7, to Section 172 of the Motor Vehicle Act. The trial proceeded before Stroud of the Provincial Court. Richard that he placed four scales side of the two rear axles of the truck. were 5,700 kilograms, 6,500 kilograms, 5,500 kilograms for a gross weight allowable weight at the time was kilograms tolerance. Mr. Richard testified that once each month up six scales and that the scales used in this case used for about two weeks at the been checked by the company that had no personal knowledge of this. the difference in the readings attempted to explain that there truck which was supposed to equalize Lunn to pull into a parking two Motor Vehicle Inspectors onto a set found to be almost 6, 000 No. 2, Bedford, Halifax about the 25th day of commit the offence Schedule "A", Table Column :1_., made pursuant His Honour Judge Robert A. Evidence was led from Inspector under the tires on each The weights recorded 5,400 kilograms and of 23,100 kilograms. The 17,000 kilograms, plus 1, 000 he would pick had been time. He assumed they had he obtained them from but He was questioned about of the four scales and he was a "walking beam on the the weight between the
two rear axles" . He stated, however, one that works. There was some fifth wheel and a pin and the pin is carried by the tractor of the unit. The defence the~ called as one who has experience in dealing with issues of loads placed on pressure points and the physical to calculate the effects of the load placed in those different pressure points. The intent of this evidence was to undermine the accuracy of the scales. In his testimony, the expert stated: Q. • •• So, if I might just summarize for the moment, if we have a rear equalizing you're saying that the two weighed by scales should the scales that are equal? A. That's correct. Q. And, if the equalizing then there coulq be a difference in the scale readings but the front wheel of the weigh ... should show a heavier reading? A. That's correct. Q. Now, let me ask you this question. we have a configuration a five axle tractor trailer, rear axle assembly the is on a equalizing system that's and assume that two scales not show the same weight, what does that say to you? A. Given those assumptions, calibration of the scales. At the conclusion of the trial, it was trial judge would reserve his decision in the case of Boyd v. The Queen which was then being considered 4 that he had never seen further discussion about the fact that the weight on this an engineer who was qualified formulas that are needed system that's working, wheels on one side when give readings on each of system is not working, two rear wheels should Assume that as shown in that diagram, and assume that the fourth and fifth axles working correctly under those wheels do I would question the agreed that the and await the judgment
5 by the County Court and had not yet Court reconvened on November 1, his decision as follows: I have read the decision I don't have it with me this morning by memory. But, her unconstitutionality of section 174 of the Motor Vehicle Act. It is binding upon me, subject only to its application to the facts of this case and, of course, that section deals with a presumption as accuracy of the scales that were used in all of these cases. The evidence in all three fact the evidence from the first trial, was, as agreed by Counsel, put into the The evidence as to accuracy indicated that the scales were and left with the equipment were obtained for, presumably as to what checking was done, the scales based upon that, evidence in any event, since the witness giving that testimony had no knowledge there is certainly insufficient determine beyond a reasonable doubt, that were used in these cases a result of the finding of the section of the Motor Vehicle Act containing that presumption, the Crown has elements of the offence beyond a reasonable doubt. So, I therefore find Mr. Boyd, Lunn not guilty of the offences under the overweight provisions of the Motor Vehicle Act and the appropriate Regulations as indicated in the Summary Offence Ticket. The section of the Act with which Judge Stroud was dealing was Section 193 rather than 174, which was its previous number. Judge Stroud had also been dealing Boyd and James Goodwin by agreement why he referred to the evidence been decided. When the 1990, Judge Stroud rendered of Judge Bateman but so I am going finding was to the to the reliability or cases was identical. In other two by agreement. of the scales simply returned periodically company from which they checking. However, and the accuracy of is primarily hearsay of what was done. So, evidence for me to that the scales were accurate and as unconstitutionality of failed to prove all the Mr. Goodwin and Mr. with the cases of James of counsel and this was in all three cases being
6 identical. The Crown has appealed the acquittals Mr. Lunn and the points in issue in each case are: 1. THAT the learned Provincial in law in holding the provisions Motor Vehicle Act, R.S.N.S. with the right to be presumed guilty according to law under s. ll(d) of the Canadian Charter of Rights and Freedoms. 2. THAT the learned Provincial in law in holding the provisions Motor Vehicle Act, R.S.N.S. a reasonable limit within the Charter upon the exercise presumed innocent until proven law under s. 11 (d) of the holding that s. 193 of the no force or effect. It would appear from Judge prima facie presumption of accuracy of the scales under Section 193 had been rebutted by the evidence heard by the trial judge. Whether or not Section 193 is have no bearing therefore on the acquittal of the accused and I would therefore at this point dismiss the appeal in the case of Mr. Lunn. No such finding was made therefore necessary to consider properly based upon the unconstitutionality If not, a.new trial should be ordered. Judge Bateman in the. Boyd case proof of the validity of the weighing scale under section 19 3 of the Motor Vehicle Act offended of Mr. Strang and Court Judge erred of s. 193 of the 1989, c. 293 inconsistent innocent until proven Court Judge erred of s. 193 of the 1989, c. 293 are not the meaning of s. 1 of of the right to be guilty according to Charter and consequently Motor Vehicle Act is of Stroud's decision that the constitutionally valid would in the Strang case and it is whether the acquittal was of Section 193. found that the prima facie the right to be presumed
7 innocent under section ll(d) provision could not be preserved conclusion principally upon the decision of Chief Justice Dickson in R. v. Oakes. In her decision reported in (3d) 43 she stated: "[13] In R. v. Oakes, [1986] 14 O.A.C. 335; 26 D.L.R. C.C.C. (3d) 321; 19 C.R.R. Canada analyzed at length the nature of of innocence. At page 222 C.J.C. (as he then was), writing for the majority states: "In general one must, provision which requires on a balance of probabilities presumed fact, which the offence in question, of innocence in section the burden of disproving on a balance of probabilities an essential element possible for a conviction existence of a reasonable doubt." (emphasis added) " [14] Dickson, C.J .C., concluded of innocence has at least three components. he found them to be as follows: 1. An individual must be proven guilty beyond a reasonable doubt; 2. It is the state which must bear the burden of proof; 3. Criminal prosecutions must be carried out in accordance with lawful procedures and fairness. [15] The appellant submits that insofar as s. 174 relieves the Crown of proving an element essential to the offence (the accuracy of the scales) it does The respondent submits that s. evidentiary aid to the conviction. The requirement raise a reasonable doubt as to the accuracy of the scales as distinct from a requirement inaccuracy of the scales on the balance of probabilities. The respondent distinguishes the true "reverse onus" or "presumptive" clause and refers to many cases in support. of the Charter and that the by section 1. She based her (1991), 99 N.S.R. 1 S.C.R. 103; 65 N.R. 87; (4th) 200; 50 C.R. (3d) 1; 24 308, the Supreme Court of the presumption D.L.R., p. 121 N.R., Dickson, I think, conclude that a an accused to disprove the existence of a is an important element of violates the presumption 11 (d) . If an accused bears of an offence, it would be to occur despite the that the presumption Summarizing, offend s. ll(d). 17 4 simply serves as an Crown which might support a is only that the accused that the accused prove this type of clause from
8 [ 16] Notwithstanding the very able I am not satisfied that the determination not the clause offends the presumption determined solely on the basis as "mandatory presumptions","permissive "reverse onus" clauses. There the importance of the presumed respect to the offence under consideration, overweight trucking, the only element which rteeds be fact that the accused's vehicle prescribed limit for that vehicle size. of the weight is the very essence of the Crown's case. the accuracy of the scales is crucial to the court accepting that the vehicle was indeed portable scales used to determine that weight are solely within the control of the Crown. It is accused to call any independent accuracy of the scales. While the accused may be in a position to collaterally attack the accuracy evidence as to weight he has no practical ability to directly attack the accuracy of the particular set of used. The question, then, is whether this provision which relieves the Crown of calling any evidence as to accuracy in order to establish a prima facie case, {in this case the scales) used to calculate the offence, solely within the control of the Crown offends any of the three elements of the presumption of Dickson, C.J.C. {as he then was), in Oakes. [17] Fundamental to the presumption principles that the Crown must bear the onus of proof and that criminal prosecutions must be carried out lawful procedures and principles of fairness." It must be remembered that the case was fundamentally different from the "prima facie" direction in the case under appeal. It Narcotic Control Act which shifted the to prove that he did not have in his possession for the purpose of trafficking. In R v. Pye, {1984) 2 N.S.R. had previously reached the conclusion case created by legislation under argument of the respondent as to whether or of innocence can be of categorizing such sections presumptions", or must be some consideration of element to the offence. With proved by the Crown is the was of a weight over the In other words proof Clearly overweight. Additionally, the beyond the ability of the direct evidence as to the by offering conflicting portable scales { s. 17 4) when the instrument is innocence as enumerated by of innocence are the in accordance with presumption in the Oakes was a presumption under the burden to the accused the drug that was found to be {2d) 10 our Appeal Division that a "prima facie" the Lands and Forests Act
9 did not violate the Charter of Rights. for the court, said at p. 17: "[30] In Sumbeam Corp. (Canada) Ltd. v. R. r 221; [1969] 2 C.C.C. 189, delivered by Mr. Justice Ritchie who report): I do not think that any proposition that, when the Crown case and no evidence is given the jury may convict, but effect that the trier of fact is required to convict under such circumstances. [31] In Boyle, supra, Mr. Justice Martin said (p. 208): Where prima facie is used used by Viscount Sankey in Mr. Justice Ritchie in the not necessarily ensue. Experience shows acquittals are not uncommon sufficient case to go to the jury, and in respect of which no countervailing evidence the jury is not convinced the accused's guilt. The to whether the accused committed whether some essential element proved. [32] I have concluded that the term prima facie evidence is used in s. 202 ( 5) of the Lands and Forests Act in the permissive sense illustrated and Russell cases rather than being a rebuttable presumption Re Boyle and The Queen, supra. my opinion, violate the right guaranteed by the Charter of Rights and Freedoms." Judge Bateman argues that this case has been overruled by Oakes but I cannot agree. only and if a reasonable doubt exists no conviction could be entered. I cannot agree with the conclusion Bateman in the "Boyd" appeal. Macdonald, J.A., speaking [1969] S.C.R. the majority judgment was said (p. 194 C.C.C. authority is needed for the has proved a prima facie on behalf of the accused, I know of no authority to the in the sense in. which it is Woolmington's case, and by Sunbeam case, conviction will us that, in fact, even though there is a is introduced, simply because beyond a reasonable doubt of reasonable doubt may exist as the prohibited act or of the offence has been in the Woolmington, Sunbeam in the mandatory sense of of law as exemplified by As such it does not, in to be presumed innocent It is a permissive rule reached by Judge In my opinion the legislative
provision is only unconstitutional presumption of innocence under Oakes reasoning if it makes it possible for a person reasonable doubt still exists of the offence charged. person is free to raise such accuracy of the scales by whatever method he or she should choose and if that doubt Lunn case then the accused that doubt and be acquitted. accused to affirmatively a preponderance of evidence. from the evidence as a whole entitled to rely upon the normal accuracy of such scales. There is nothing unusual which apply to highway use. scheme well known to the truckers have to weigh their own vehicles since the amount of remuneration per load Truckers are always free the inspectors scales by whatever if they should raise a reasonable doubt they must receive the benefit of it. In my opinion the influenced too greatly by the presumed difficulty an accused trucker would have in undermining 10 as offending the to be convicted although a as to one of the elements Under section 193 an accused a reasonable doubt, of the should exist as it did in the must receive the benefit of It is unnecessary for the establish anything by way of If no such doubt is raised then the trier of fact is about weight restrictions They are part of a regulatory trucking industry. Many heavy often depends upon its weight. to challenge the accuracy of method they choose and trial judge'~ reasoning was the Crown's evidence
• ' 11 as to the weight of the load. not section 193 is unconstitutional conviction of an accused trucker even though the trier of fact may have reasonable doubt as to whether the weight of the load exceeded the permissible limit. trial judge would, in my opinion, be bound to acquit the accused and section 193 does not therefore the Charter of Rights and Freedoms. Surely the burden cast upon reasonable doubt is not as great as the in a strict liability offence a balance of probabilities as was valid by a majority recently by in The Wholesale Travel Group Judgment rendered October 24, 1991. I would therefore allow the Strang, set aside his acquittal and direct the matter be referred to the Provincial Court for a new trial. ~l_ ~-Lr6 Concurred in: Jones, J.A.~ Hallett, J .A. /jll The real issue is whether or because it permits the If such a doubt exists the offend the provisions of the accused to raise a burden of an accused to establish due diligence by held to be constitutionally the Supreme Court of Canada v. The Queen (unreported). appeal in the case of Mr. J.A.
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