J. Summary Offence Ticket #5342574 IN THE PROVINCIAL COURT FOR SASKATCHEWAN SWIFT CURRENT, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN -and- JACK N. EPP Mr. Steve Kritzer for the Crown Mr. Jack Hoffart for the Defence JUDMENT December 12, 2001 L.A MATSALLA, PCJ 1 The accused is charged that he did, on February 26, 2001 in Swift Current district, Saskatchewan, operate a motor vehicle that violated the Minister\'s weight order contrary to section 38(1)(b) of The Highways and Transportation Act, 1997. In essence, it is alleged that the accused operated an overweight vehicle on a road to which the Minister\'s weight restriction applied. Facts Crown has presented evidence that has established that on the date in question Traffic Officer on patrol with colleague was proceeding in northwesterly direction on highway #32 in this province and he was about to turn left onto highway #332 when he noticed tractor-trailer unit travelling in an easterly direction approaching the junction of highways #32 and 332. According to his evidence, "knowing that highway #332 was under restriction" the officer stopped the vehicle which, at that time, was being operated by the accused. Mr. Epp owned the tractor and another person owned the trailer. The unit was weighed using portable scales authorized for that purpose and it was discovered that the unit weight was 22,300 kilograms. Allowing for permitted weight of 6,000 kilograms, the unit was then overweight by 16,300 kilograms. There were three sets of axles on the unit- steering axle, drive axles and tridem axles. No overweigt permit had been issued to the accused and so the officer issued ticket to the accused. municipal administrator of the municipality in which this incident had taken place testified that, to his knowledge, highway #332 was subject to Minister's order that restricted the weight of vehicles on the highway. He went on to say that prior to the incident the municipality and the Department of Highways had entered into an agreement whereby the Minister would restrict the weight of vehicles using highway #332 such that heavier vehicles would be re-directed onto municipal grid roads. As result of the order, since February 18, 2001, the municipality was given authority to issue permits to persons to permit overweight vehicle traffic on highway #332 at any time of the year except spring breakup. In the circumstances, the municipal council directed that notice of the Minister's order be given to the municipal division in which the grid roads were located and to entities situated along highway #1 that were involved in the transport of goods. The accused did not receive such notice. There was no publication in any local newspaper or provincial daily. No notice was given to any other media. Furthermore, the Department of Highways had erected signs in the area. These signs can be described as follows; 1) large weight restriction signs advising that highway #332 was restricted to 8,000 kilograms G.V.W. (gross vehicle weight) and directing highway traffic to follow designated truck route (#1), 2) smaller signs with red truck symbol restricting weight to 8,000 kilograms (#2) 3) smaller signs with truck in green circle directing highway traffic along designated truck route (#3), and 4) small signs warning of an 8,000 kilogram weight restriction (#4). Traffic signs were in place prior to February 26 the last one went up on February 23. Highway #32 runs from the northwest to the southeast and highway #332 runs east and west. There is an intersection at which both highways meet some 15 kilometers northwest of Swift Current. There are signs (#1) on highway #32 one kilometer northwest of the junction facing southeast bound traffic and at point some kilometers southeast of the junction facing northwest bound traffic as well as at various other locations along grid roads in the area. There are signs (#2) at frequent locations on highway #332 west of the junction facing both east, west, and north bound traffic. There are numerous other signs (#3 and #4) along grid road that runs parallel to #332 the grid road that appears to carry the bulk of the re-directed traffic and there are signs along roads in the west and the northwest of the area shown in the map that was marked as exhibit P1. 6 The Crown tendered a copy of a document entitled "Order for Road Restriction on Provincial Highway #332" and the documents purports to be issued under section 35 of The Highway Traffic Act, 1997. The copy appears to be signed by Mr. Maynard Sonntag, Minister of highways and transportation. It should be noted that in the upper right hand corner of the copy there appears to be an original notation that reads as follows THIS COPY CONFORMS TO THE ORIGINAL AND HAS NOT BEEN ALTERED IN ANY WAY. Janet Melnychuk Commissioner for Oaths for Saskatchewan My commission expires November 30, 2004 The defence did not call any evidence. Arguments The Crown argues that the document referred to above is proof of the order of the Minister and so the order, combined with the evidence of the weight of the vehicle, has established the commission of an offence under section 38(1)(b) of The Highways and Transportation Act, 1997. 9 The defence argues the following:a) the document is not proof of the Minister\'s order according to law, andb) even if the document is proof, the order is a "regulation" under the provisions of The Interpretation Act and so the provisions of The Regulations Act applies to it. Since those requirements have not been met, the Crown has not established that an order had been made for the purpose of this case. 10 It is necessary to examine the provisions of number of pieces of provincial legislation namely, The Highways and Transportation Act, 1997 S.S. 1997, c.H-3.01 ("HTA"), The Regulations Act, 1995, S.S. 1995, c.C.R.-16.2 ("RA"), The Saskatchewan Evidence Act, R.S.S. 1978, c.S.-16 ("SEA") and The Interpretation Act, 1995, S.S. 1995, c.I-11.2 ("IA"). The Legislation 11 Section 35 of HTA forms the basis of this charge in that it provides the Minister with authority to make an order. The section reads as follows; 1) The minister may, by order: a) prohibit the operation of vehicles or impose restrictions with respect to the class and gross weight of vehicles or the gross weight that may be transmitted to the roadway through any point or points of contact of any vehicles that may be operated, at the times and for the periods in any year that the minister considers necessary for the protection of any public highway; and b) exempt any vehicle, either wholly or to limited extent, from any order. 2) The minister shall cause notice to be given of an order made pursuant to subsection (1) or of an amendment or cancellation of an order by publishing the order, amendment or cancellation in any manner the minister considers advisable. 12 The relevant portions of section 38 of HTA read as follows: 1) No person shall: ... (b) contravene any provision of minister's order issued pursuant to section 35... 2) Every person who will contravene subsection (1): (a) is guilty of an offence and liable in summary conviction to fine as set forth in Category in Schedule A. 13 The relevant portions of sections and 12 of SEA read as follows: 7) Evidence of any ... order ... made or issued by ... or under the authority of member of the Executive Council being head of department of the government of such province ... may be given in all or any of the modes hereinafter mentioned, that is to say: a) by the production of copy of the official Gazette for the province ... purporting to contain copy of the ... order ... or notice thereof; b) by production of copy of the ... order ... purporting to be printed by the Queen's Printer for Saskatchewan ...; or c) by the production of copy ... of the order ... certified to be true copy by the Clerk or assistant clerk or acting clerk of the Executive Council, or by the head of any department of the provincial ... government or by his deputy or acting deputy, as the case may be. 12) In every case in which the original record could be received in evidence, copy of ... any official or public document belonging to or deposited in department of ... this province ... purporting to be certified under the hand of any officer or person in whose custody the ... official or public document is placed ... shall be received in evidence without proof of the ... signature or of the official character of the person or persons appearing to have signed the same and without further proof thereof. Admissibility 14 The definition of "regulation" in IA includes an "order" (section 2) and regulation is also an "enactment" (section 2) and so the Act applies to "every enactment ... unless contrary intention appears in this Act ..." [section 3(1)]. 15 The RA also states that "regulation" includes an "order" because that Act adopts the definitions set out in IA. Regulations must be filed and the registrar must publish the regulation (section 6) unless the registrar exempts the regulation from publication (section 7). Publication of the regulation is important because the process provides the regulation with judicial recognition (section 10) and section states that person cannot be convicted of an offence against an regulation that has not been published unless ... it is shown that reasonable steps had been taken by the time of the offence to bring the substance of the regulation to the notice of the public, of persons likely to be affected by it or of the person charged. 16 Therefore, for an order to be the basis of prosecution for violation of provision of the Act, the document itself must be admitted into evidence and it must be shown that the document was published. If it had not been published, it may be valid nonetheless for the purpose of the prosecution, provided reasonable steps were taken to bring the regulation to the attention of the public or those persons affected by it. 17 The original document is the best evidence and so copy of what appears to be government document is not admissible as proof unless there is legislation that permits such document to be admitted. 18 The SEA states that an order made or issued by the Lieutenant Governor in Council must be judicially considered (section 10), however the order in this case appears to have been made or issued by the Minister rather than the Lieutenant Governor in Council and so copy of the order ("any official or public document") could be received in evidence only if it had been certified under the hand of person in whose custody the document had been placed (section 12 and section 18). 19 The HTA itself does not refer to the admissibility of Minister's order although it does provide for the admissibility of an inspection certificate of weigh scales and certificate regarding Certificate of Registration for vehicle (section 62). copy of record held by the minister is admissible in evidence as proof of the original (section 61). In this case, however, such record would be record kept in the usual course of business and would not include Minister's order itself. 20 The accused has not put in issue the question as to whether the Minister's order was properly filed [section 4(1) and section 11 RA] and so will not comment on the matter. 21 It is well known that in criminal case provision that enables the Crown to expeditiously prove certain elements of an offence must be strictly satisfied, R. v. Gordon (1972), 1972 CanLII 1288 (BC CA), C.C.C (2d) 132 B.C.C.A Bull J.A. and so, since violation of the HTA is prosecuted under section of The Summary Offences Procedure Act, 1990 S.S. 1990-91, c.S-63.1 which in turn adopts the summary conviction procedure set out in the Criminal Code, the Crown must strictly comply with the provisions respecting proof. 22 will examine the validity of the order for the purposes of this case. It is mandatory for the minister to give notice of the order. There is no evidence before me to indicate that the minister exercised his discretion by determining the most "advisable" manner in which notice was to be given. That being so, will look at what, if any, notice of the order was given. 23 The Minister\'s department - the Department of Highways, placed road signs warning and advising of weight restrictions on highway #332 as well as other signs describing an alternative truck route. Signs were located on #32 (facing in each direction before the junction of 32 and 332) and many more signs along #332 and along the grid roads accessing #332. There was no publication in the Saskatchewan Gazette or in any other print media circulated in the area. As far as can see, it is not the responsibility of the local municipality to satisfy the obligation imposed upon the minister to provide notice of his order but, in this case, the municipality appears to have taken it upon itself to advise persons in the municipal division affected by the weight restriction and to advise other persons in the immediate area that were in the business of hauling. Once again, no other notice to the general public was given. It seems to me that notice of an order made by minister of the provincial Crown affecting public highway should have been given so as to advise as many members of the public as possible. Presumably, publication of the order or notice in the Saskatchewan Gazette would be one method however some notification of the order in the immediate area may also be appropriate. It is not for me to advise the Minister. I can only conclude that the Minister failed to take appropriate steps to cause notice of the order to be given. Even if it could be said that the steps taken by the municipality satisfy the notice provisions for the purposes of this prosecution, I cannot conclude that notifying persons who reside or do business in the immediate area of the road affected by the order is sufficient notice to satisfy the requirement to publish. 24 Even if it could be said that sufficient notice was given, I cannot conclude that Ms. Melnychuk\'s endorsement upon the order that the order "conforms to the original" meets the statutory requirement that the copy must be a certified copy "under the hand of an officer or person in whose custody the ... public document is placed" (section 12 SEA) since I do not know if she had custody of the document or under the hand of any of the persons set out in section 7(c) of SEA since her official capacity is not described. The order was not published in the Saskatchewan Gazette and so a copy of the order so published could not be produced [section 7(a) SEA] and it was not proven that the copy of the order had been printed by the Queen\'s Printer [section 7(b) SEA]. 25 At the end of the day, it has not been established that the order was published for the purpose of this prosecution nor had it been established that the document filed in court is proof of the order itself. Accordingly, it has not been proven, beyond a reasonable doubt, that the accused violated the provisions of section 38(1)(b) of HTA. DATED at SWIFT CURRENT, Saskatchewan, this 12th day of December, A.D. 2001 L.A. MATSALLA Judge of the Provincial Court Of SASKATCHEWAN
The accused was charged with operating an overweight vehicle on a weight restricted road contrary to s.38(1)(b) of the Highways and Transportation Act. No permit had been issued for the tractor trailer. The defence argued the document entitled 'order for road restriction on provincial highway #332 pursuant to s.35 of the Highway Traffic Act' was not proof of the Minister's order according to law; even if the document is proof, the order is a 'regulation' under the Interpretation Act and so the provisions of the Regulations Act applies; since those requirements have not been met, the Crown has not established an order had been made for the purposes of this case. HELD: It was not proven beyond a reasonable doubt that the accused violated s.38(1)(b). It was not established that the order was published for the purpose of this prosecution nor that the document filed in court is proof of the order itself.  1)It is well known that in a criminal case a provision that enables the Crown to expeditiously prove certain elements of an offence must be strictly satisfied. Since a violation of the HTA is prosecuted under s.4 of the Summary Offences Procedure Act, which in turn adopts the Criminal Code summary conviction procedure, the Crown must strictly comply with the provisions respecting proof.  2)It is mandatory for the Minister to give notice of the order and there was no evidence he exercised his discretion by determining the most advisable manner in which notice was to be given. The Minister failed to take appropriate steps to cause notice of the order to be given. The Department of Highways placed road signs warning and advising of weight restrictions on the highway and along grid roads accessing #332, but no notice was given to the general public. Notifying persons who reside or do business in the immediate area of the road is not sufficient to satisfy the requirement to publish. 3)Even if it could be said sufficient notice was given, it could not be concluded that the endorsement upon the order that the order 'conforms to the original' meets the statutory requirement that the copy must be a certified copy 'under the hand of an officer or person in whose custody the...public document is placed' (s.12 SEA) since it was not known if she had custody of the document or under the hand of any of the persons set out in s.7(c) of the SEA since her official capacity is not described. The order was not published in the Saskatchewan Gazette and so a copy of the order so published could not be produced (s.7(a) SEA). It was not proven that the copy of the order had been printed by the Queen's Printer (s.7(b) SEA).