SENSE - Case Law: R. v. Tilden

R. v. Tilden

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IN THE PROVINCIAL COURT OF ALBERTA
JUDICIAL DISTRICT OF CALGARY

HER MAJESTY THE QUEEN
- v -
TILDEN CAR RENTAL INC.
JUDGMENT OF HIS HONOUR JUDGE G. G. CIONI

E. C. Archer, Esq.
R. A. Maybank, Esq.
For the Attorney General
B. Edy,
For the Accused
Calgary, Alberta
19 December 1991

Issue and Background
The ultimate issue in this case is whether the Accused car rental company is liable to pay the penalties for traffic tickets issued for speeding under Multinova radar enforcement, against its vehicles, which were presumably driven by the renters thereof. The Accused is charged as owner, contrary to S. 170(1) of the Highway Traffic Act, R.S.A. 1980 c. H-7:

"170(1) The owner of a motor vehicle which is involved in any contravention of this Act or a municipal by-law is guilty of an offence unless he proves to the satisfaction of the judge that at the time of the offence the motor vehicle was not being driven or was not parked or left by him or by any other person with his consent, express or implied.
(2) Notwithstanding subsection (1), if the owner was not at the time of the offence driving the motor vehicle he is not in any event liable to imprisonment."

Multinova measures the speed of a particular vehicle, photographing it and its licence number. The driver is never identified; the owner is charged A monetary penalty only is assessed; an owner who is not the driver is not liable to imprisonment. Points are not assessable against any licence.
Defence admits the vehicle involved was speeding.
Defence has contended that Multinova is a revenue producing device; Crown maintains its use is as, for radar, a regulator of and deterrent against speeding
The hearing of this case has seen the passage of some time, partly due to questions of constitutionality, the proper test in law and the outcome of pending cases. In the end result, the wait has clarified two important considerations:
-- The Supreme Court of Canada has definitively set the test. in regulatory, strict liability cases as a balance of probabilities whereby the defence is required to establish due diligence in the face of a prima facie case shown beyond a reasonable doubt by Crown: The Wholesale Travel Group Inc. V. Her Majesty the Queen, (including Ellis-Don Limited and Rocca Morra), unreported, The Supreme Court of Canada, October 24, 1991.
-- The Alberta Court of Appeal has ruled, reversing previous rulings, in Her Majesty the Queen v. Daniel Chow (unreported [at the time of writing], The Court of Appeal, Calgary Criminal sittings, September 30, 1991, Appeal No. 12579) at Page 3:

"The record we have compels the conclusion that the Multinova, aptly described as a marriage between radar and photography, provided and recorded accurate information and what it recorded was admissible in evidence."

Accordingly, it is appropriate, as now constitutionally confirmed, that this Court determine the Accused's defence of due diligence on a balance of probabilities.
Essentially, Defence contends that the Accused has taken reasonable and diligent steps , as owner, to prevent the conduct that is subject to regulation and prohibition: speeding, by its vehicle. Accused maintains a policy of requiring renter drivers to be properly licenced and sober. Agents are taught and instructed to check. By the evidence. of Angie Dodge, I am satisfied that agents do this. Ms. Dodge advises she urges customers to read all of the contract before signing, front and back, which both contain clear statements that the renter is liable to the Accused for all fines and tickets. She concedes that many don't follow her advice to read it, stating they know the rules already. She does not specifically speak of fines but points out the warning where renters sign. Most contracts provide for only the renter to drive, other drivers must be specifically added.
Mr. Michael Seright, fleet manager, has responded to personal summonses for Multinova offences by writing to the Chief of Police, supplying or offering to supply the contract, and name and address of the renter and requesting the police to charge the renter as driver. The police have declined to do so. He has corresponded only in cases of personal service, presumably for Multinova offences. He knows of no case where a renter was pursued under the contract for liability for any tickets, particularly parking offences.
Crown answers that the Accused has assumed liability by allowing its vehicles out onto the street, that it does not control its renters, that the steps taken are not duly diligent and that public policy in deterring speeders on the roads and in the difficulties in prosecuting drivers of rented cars, particularly regarding identification, would require the Accused to be responsible.
The renter of the within car is apparently from Vancouver, B.C.
I am indebted to counsel for their efforts. Notwithstanding the extensive briefs, I find the case to have essentially been directed by the recent cases referred to above.
I am indebted as well to my colleague, Pepler, P.C.J. for his careful consideration of this section in R. v. Free (1990) 72 Alta. L.R. (2d) 169; appeal dismissed, (1990) 77 Alta. L.R. (2nd) 79 and for his thoughts on strict liability.

Findings and Rulings
1. Section 170 places a strict liability on owners of vehicles, who may defend by showing due diligence on a balance of probabilities, and/or by satisfying S. 171, H.T.A.:

"171. When a person is charged with an offence under this Act, if the judge trying the case is of the opinion that the offence
(a) was committed wholly by accident or misadventure and without negligence, and
(b) could not by the exercise of reasonable care or precaution have been avoided, the judge may dismiss the charge."

I agree with Pepler, P.C.J., as he ruled in Free, that the statuatory defence is probably narrower than the full defence at common law but, considering the ringing endorsement of the due diligence defence by the Supreme Court in Wholesale Travel, I would say that any distinction has been superceded, as the Charter is paramount to all. An accused would have the benefit of appropriate doubt arising from the full defence. The very presence of S. 171 connotes strict rather than absolute, liability. I cannot then, with deference, follow R. v. Burt (1987) 38 CCC(2d) 299 (Sask.C.A.)
2. Multinova radar enforcement is regulatory in nature, its operation being proper evidence to a conviction for the regulatory offence of speeding (Chow) The regulation of speed is an important factor in both proper Traffic management and, significantly, public safety. The lack of otherwise routine elements of regulation and deterrence such as the possibility of imprisonment and the loss of driving privilege by the accumulation of demerit points does not convert the purpose of this method of enforcement to simply a revenue producing device. Human nature and wisdom tell us that people do not like to pay fines and where there exists technology to pick a speeder out of a crowd, drivers will tend to behave themselves. The windfall may be welcome to the authorities but it is only a by-product of the regulatory act. It arises from valid legislation and should be effected, wherever proper, by judicial interpretation, heeding the admonition of Cory, J. in Wholesale Travel at Page 39:

"The tremendous importance of regulatory legislation in modern Canadian industrial society requires that courts be wary of interfering unduly with the regulatory role of government through the application of inflexible standards."

3. Before applying the facts, the framework of the law to which the facts are relevant must be clearly defined. By the cases of Regina V. City of Sault Ste. Marie (1978) 85 DLR (3rd) 161 and now, Wholesale Travel which strongly confirms the characterization of regulatory law in Canada envisioned by Dickson, J., (as he then was), brought up to date under the Charter, the Supreme Court of Canada has clarified the scale of Canadian criminal and regulatory law. At one end of the scale is criminal law, requiring specific or, at least, general intent. At the other end is absolute liability, with no intent or moral fault required for conviction. Strict liability falls on the scale between these two ends. No intent is required for conviction but an Accused has the opportunity to defend by showing a probability of due diligence. This defence, however, must not confine itself simply to the production of some facts that hope to reach a level of probabilities. Cory, J. in Wholesale Travel rejects that simple proposition on a basis of reasonable doubt at Page 45 - 46:

"It is difficult to conceive of a situation in which a regulated Accused would not be able to adduce some evidence giving rise to the possibility that due diligence was exercised. For instance, an environmental polluter would often be able to point to some measures it had adopted in order to prevent the type of harm which ultimately resulted. This might raise a reasonable doubt that it had acted with due dilligence no matter how inadequate those measures were for the control of a dangerous situation. Similarly, a wholly inadequate effort to ensure that an advertisement was true might nevertheless succeed in raising a reasonable doubt as to due diligence.
To impose such a limited onus is inappropriate and insufficient in the regulatory context. Criminal offences have always required proof of guilt beyond a reasonable doubt; the Accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the Accused has failed to meet the standard of care required. Thus, the question is not whether the Accused has exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and the manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society
It must not be forgotten that the virtual impossibility of proving regulatory offences beyond a reasonable doubt was central to this Court's decision in Sault Ste. Marie. This consideration led the Court to conclude that the imposition of strict liability with a Defence of due diligence available to the Accused was both necessary and appropriate."

In essence, Cory, J. considers that the purpose, background, standard, practices and desired goal of the legislation are to be considered - in a word: context, as he says at P. 22:

"A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. This approach requires that the rights asserted by the appellant be considered in the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one."

While Cory, J. is addressing a constitutional issue, I find nothing in his judgment to remove a full consideration of context, by analogy, in relation to the test in law that he establishes thereby. The judgment as a whole, in my view, contains signposts and directions to the application of the test itself.
4. As well, within such context, one is able to consider not only the intent of the regulation i.e. here to regulate speed for efficiency and safety but the results that are to be produced i.e. a reduction in speeders on the road and increased public security. Without results the operation of the regulation itself is frustrated. This, in my view, must be considered in the adoption of the standard upon which the test of due diligence will be based, in the context of the individual case. Other factors, defined by Cory, J. as the "licencing justification" (P.24) and the "vulnerability justifications" can be considered to justify differential treatment for regulatory offences. I find this relevant when one considers due diligence where the owner is a person who lends his or her vehicle out, as opposed to renting out a vehicle. I take instruction from the further comments of Cory, J. at Page 39:

"It is absolutely-essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare."

And:

"What some writers have referred to as 'licencing' considerations lead to the same conclusion. The regulated actor is allowed to engage in activity which potentially may cause harm to the public. That permission is granted on the understanding that the actor accept, as a condition of entering the regulated field, the responsibility to exercise reasonable care to ensure that the proscribed harm does not come about. As a result of choosing to enter a field of activity known to be regulated, the regulated actor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre condition to being allowed to engage in the regulated activity. In those circumstances, it misses the mark to speak in terms of the 'unfairness' of an attendated fault requirement because the standard of reasonable care has been accepted by the regulated actor upon entering the regulated sphere." [emphasis mine]

5. Cory, J. is supported in his theory by Iacobucci, J., as at P. 4:

"For the reasons given by Cory, J., in the context of his S.11(d) analysis, such an alternative would in practice make it impossible for the Crown to prove public welfare offence such as the one in question and would effectively prevent governments from seeking to implement public policy through prosecution. It would also not provide effective inducement for those engaged in regulated activity to comply strictly with the regulated scheme including adopting proper procedures and record keeping and might even have a contrary effect." [emphasis in the original]

6. One might expect the great majority of owners to reside within the jurisdiction, while it is notorious, as Crown submits, that large numbers of renters will be from without, making prosecution of actual drivers practically and prohibitively impossible. As well, it seems to me that a relevant element of due diligence on behalf of an individual owner who lends his or her vehicle to another, particularly a child of the owner, would be knowledge of that person's driving history and attitude. A poor history would negate due diligence; an excellent record coupled with the exercisable power a parent/personal owner has over the vehicle and family and friends might well establish due diligence. The Accused herein has taken some steps that meet a minimal standard, that of renting only to those who are licenced and sober and the presentation of the contract. No details of driving record are sought or known. Can corporate Accused then rely only on general knowledge and an inference thereby that licenced, sober drivers will tend to obey traffic laws? Is it practical and fair to ask these Accused, who provide a public convenience, to inquire into the personal records of their customers? At the same time, can general knowledge prevail for one, where specific knowledge may be required for another? It might be noted that a prudent renter would undoubtedly only wish to entrust its vehicles to licenced, sober drivers and that the traffic dockets are not crowded only because of unlicenced drunks. That any one driver will speed at a given time is speculation; that most licenced people, sober or not, do speed for any number of human reasons, from inattention to deliberateness, breach parking regulations and commit other moving offences is beyond doubt
7. Where then, does that leave the Accused upon the scale of offences and responsibilities? Moral terpitude, or intention to commit or even allow offences, is not a necessary element at the far end of the scale that is absolute liability. It is a crucial element at the other end, criminal law. In the middle rests strict liability, defended by due diligence on a balance of probabilities. That is, Defence to show it to be more probable than not that Accused has taken all reasonable and fit steps available to prevent the prohibited act and frustration of the regulatory process - here: speeding. On the same scale of values, the defence assumes a burden when the Crown has shown a prima facie case to show: that a reasonable doubt exists in criminal cases; expanding to probability in the case of due diligence, up to a formidible burden in a case of absolute liability (perhaps only by mistaken identity, i.e. the act shown was not done by the Accused). This progressive scale would indicate that within the category of due diligence there will be a latitude in, if not degrees of, proof required to show du diligence, wherein more may be required to defend one set of regulations than another. Thus, the concepts, as outlined by Cory, J. and Iacobucci, J., of context, results and standard of conduct reasonably necessary to properly sustain the valid regulations for public benefit will shape the test of probable diligence in individual cases.
8. It would be appropriate to caution that, in my view, with deference, Wholesale Travel must be taken as a clarifying, updated statement of the importance and role of regulatory law in Canada but no more than that. I find no intent to "force" results to uphold regulatory schemes but to give the foundation of such regulation its due regard in order to fairly implement the intent of the legislation and to make it work according to the test in law. Expedience would not, for instance, justify raising the degree of due diligence to a level that would convert a strict liability offence to an absolute one. It may be that the degree of due diligence required will be very high in a particular case and approach the mark representing absolute liability but it should never cross the line. That is to be left to the lawmaker to amend and justify constitutionally. Intelligent, approved and desired regulation by government does not equal a "Big. Brother" approach.
9. Applying the above analysis to the case at bar, the issue becomes this: has the Accused, a renter of vehicles entering into a commercial field, well knowing that the drivers of its vehicles will encounter the full spectrum of Public regulation of vehicles and that the breach of any regulation will, at any moment, depend upon the capacity of each and every driver, as a human being, to speed due to tardiness, inattention, mistake or deliberateness, thereby taken all probable reasonable and diligent steps to avoid such offences by relying on minimal standards of entrusting their vehicles only to the sober and licenced? My conclusion is that they have not so succeeded either on the basic need of the public to control speeding; and further on the standard of conduct that may reasonably be expected in this area, the context of the particular facts (including the nature and enforcement of the regulation) and the results which may be reasonably expected by the public when strict liability is enforced herein.
10. I will start with the basic conclusion that given the above tests, the Accused would not prevail in the important area of parking regulation, that is, meter and parking violations of a common and voluminous nature. The ability to manage traffic fairly and efficiently so that all drivers may get along, share roads and parking spaces, proceed on roads safely and preserve persons and property begins with the location of the vehicle on roads and streets. Chaos would reign if regulation and monetary penalties did not control us there. There is no question in my mind that the duty on all owners renters or personal, to ensure that their vehicles out of their possession obey such regulations is about as high as it can go in strict liability. The only sane recourse of regulation and thereby the public interest is to ticket the vehicle improperly parked or placed. Identifying the vehicle and charging the owner is the only practical, efficient method of enforcement to attain the goal of regulation of parking. The state could not supply enough resources to monitor each meter, each block to ticket each driver who errs. As well, the "licencing justification" would surely bind the Accused to that level of responsibility as a standard of conduct in this area.
11. Such a conclusion satisfies the social value licencing principle as seen by Cory, J., at p. 26:

"The licencing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the Consequences of that responsibility. Thereof, it is said, those who engage in regulated activity should, as part as the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among these implied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care."

It is consistent as well with the requirements thought valid by Iacobucci, J., at p.4:

"... I concur that the specific objective of placing a persuasive burden on an accused to prove due diligence is to ensure that all those who are guilty of false or misleading advertising are convicted of these public welfare offences and to avoid the loss of convictions because of evidentiary problems which arise because the relevant facts are particularly in the knowledge of the Accused."

And at Page 5:

"For the reasons given by Cory J., in the context of his s. 11(d) analysis, such an alternative would in practice make it virtually impossible for the Crown to prove public welfare offences such as the one in question and would effectively prevent governments from seeking to implement public policy through prosecution. It would also not provide effective inducement for those engaged in regulated activity to comply strictly with the regulatory scheme including adopting Proper procedures and record keeping and might even have a contrary effect. Though such a result would be clearly advantageous to an Accused, it would not be effective in avoiding the loss of convictions because the Crown could not prove facts within the particular knowledge of the Accused. In sum, taking into account the particular circumstances described by Cory J. in his reasons, Parliament could not 'reasonably have chosen an alternative means which would have achieved the identified objective as effectively': R. v. Chaulk, 1990] 3 S.C.R. 1303, at p. 134, per Lamer C.J. for the majority."

12. It is within the ability of the Accused herein to ensure the enforcement of regulations to deter parking offenders not only by paying the fines as owner but even more directly, by passing along to the renter, as fully provided for under the contract, those costs as a personal deterrent as intended by law and, in fact, as a rather graphic lesson that one cannot lightly escape such responsibility. There is a case to be made that by not passing along any such fine, the Accused are, to a degree, encouraging unwarranted cyncism, or a pass-the-buck attitude, that would have renters routinely depend upon the Accused company absorbing their delicts, thereby creating a "safe haven" and encouraging scoff-laws.
13. It is undoubtedly a cost and an inconvenience to the Accused to alter its present practice of not billing. The client at all, but the alternative, to leave the Crown powerless in Prosecuting a distinct segment of offenders, negates the effective inducement mentioned by Iacobucci, J. While the choices open to the Accused may increase costs and decease public relations, I am not persuaded that it amounts to such a hardship that would drive the Accused from the commercial field. A clear attitude that fines will be pursued under the contract would probably induce many renters to settle up. In modern practice and computerization, it is not impossible to require deposits against fines, or extra imprints spcifying that cost and only that cost, and use of supplementary billing rights on credit cards. Records can be kept as against future rentals. In any event, renters will know that they are hiding these tickets from the Accused. Many may declare them, through honesty or trepidation, particularly if there is any spur to do so. The issuing of the ticket and a surety of prosecution and liability to someone is a deterrent in itself. On this score, the interests of the Accused are secondary to the public value compared to leaving the situation neutered.
14. Proceeding then from parking violations to speeding tickets by Multinova radar, I conclude that, in the end result, the Accused has not met the standard of probable due diligence. I would pause to consider whether a slightly less rigorous level of diligence would be satisfactory on the proposition that speed requires a bit more deliberateness by a driver and/or is less predictable in a manner that would or should, in fairness, relieve the Accused of liability. I find, however, on a consideration of all of the factors, namely:
(a) the predictability or expectation that renters will speed is high. The nature of the offence then, is routine.
(b) the nature of enforcement is ultimately straightforward, radar enhanced by photography, and approved, per: Chow.
(c) the effectiveness of the enforcement is high and, as such, deterrent; it is likely to have an impact on drivers who may not speed for fear of it and the penalties assessed. As such, it may properly be encouraged.
(d) the difficulty, approaching impracticability if not impossibility, of prosecution of the driver by Crown, particularly if an out-of-province resident. Proof by rental contract, would necessitate calling to court endless numbers of the Accused's staff to prove the contract, and would depend further upon a suitable inference by the Court that the renter was the driver, assuming a one- person contract, let alone where there is more than one driver listed. As between the public and the Accused, it is the Accused who should be "out".
(e) the result of the Accused, as licencee in the regulatory area and with substantial recourse to effectively pass along the deterrent costs to renters, being held blameless.
(f) the context of this situation allows that the proper standard of conduct may be placed at a high and functional level.
(g) the failure or reluctance of the Accused to pass along the cost to its source is in itself defeating of the regulatory purpose. If the Accused chooses not to do so, it is, in fact, creating the very and the only step in this process that renders it ineffective. The reluctance or refusal of the Accused to use powers as discussed above cannnot, in my view, be converted into an act of due diligence to relieve it of a responsibility that it has helped to defeat.
15. In conclusion, I would find the Accused liable for these tickets as basic, routine and predictable offences for vehicles that it puts out on the road. I would not expect such liability to exist at this level for non-routine moving offences that involve a greater degree of deliberate choice by a driver and which are not as predictable, such as hit and run and careless driving.
16. Accordingly, I find that the Defence put forward fails the test of due diligence and that the probabilities favour the upholding of responsibility for effective public legislation. The Accused is thereby convicted and ordered to pay the assessed statuatory penalty.

G. G. CIONI
Judge of the Provincial
Court of Alberta

Rev: 1998.09.29