Ontario Provincial Court (Criminal Division), Clendenning J., 21 March 1977 Glenn A. Deline, for the Crown.
Dennis Claxton, for the defendant.
CLENDENNING J.: The accused, Steven Wayne Morris, was charged with two offences contravening the provisions of the Indian Reserve Traffic Regulations, regulations passed pursuant to s.73(1)(c) of the Indian Act, R.S.C. 1970, c.I-6. Mr. Claxton, counsel acting on behalf of the accused, at the outset, made submissions to this court which in effect have application to both charges before the court, and although the charges are set out in separate informations, only one judgment will be delivered dealing with both situations.
At the outset I intend to preface my judgment with some general comments, the reason for which shall become apparent later in this judgment. The Tyendinaga Indian Reservation is situate in the south-east portion of Hastings County, serviced by at least two provincial highways as well as several other roads or highways. For the purpose of this judgment it is unnecessary to consider, nor to determine, under what governmental jurisdiction, be it federal, provincial, or municipal, the various highways fall, and the judgment proceeds on the basis that all are subject to the provisions of the Indian Act and the regulations enacted thereto.
Section 73(1)(c) of the Indian Act reads as follows:
The Governor in Council may make regulations. . .
(c) for the control of the speed, operation, and parking of vehicles on roads
within reserves;
Pursuant to that section, regulations entitled Indian Reserve Traffic Regulations were passed on September 17, 1954, as P.C. 1954-1368, SOR Con. 1955, vol.2, p.1954, and, I understand, are still in effect, without any further amendments.
Section 6 of those regulations is as follows: "The driver of. . ." [and I emphasize the word "driver"], "the driver of any vehicle shall comply with all laws and regulations in force from time to time in the province in which the Indian Reserve is situated relating to motor vehicles, except such laws or regulations as are inconsistent with these regulations."
The Ontario Court of Appeal in R. v. Isaac, [1973] 3 O.R. 833, had occasion to consider those particular sections, and at page 835 of the judgment made the following comments as to their operation:
Parliament has authorized by s.73 the making of Regulations for "the control of speed, operation and parking of vehicles on roads within reserves". Pursuant to such authorization the Governor in Council, by Regulation, has adopted all laws and Regulations of the Province relating to motor vehicles except as may be inconsistent with the Regulations under the Indian Act. It is clear that s.6 of those Regulations falls within the enabling statute at least so far as the Highway Traffic Act is concerned, because there the Legislature is dealing with the regulation of speed and the operation of vehicles.
In effect, Parliament has incorporated by reference the provisions of the Highway Traffic Act, R.S.O. 1970, c.202, except such as may be inconsistent with the provisions of the Indian Reserve Traffic Regulations, and a contravention of any of those offences so incorporated is a contravention of s.6 of the Indian Reserve Traffic Regulations, not a contravention of the provisions of the Highway Traffic Act. This proposition is also clear from the Isaac judgment for, at pages 836 and 837, the court stated:
I therefore come to the conclusion that the charge relating to the terms of s.8 of the Highway Traffic Act was improper and should have been laid under the Indian Act with reference therein to s.6 of the Indian Reserve Traffic Regulations and with particulars of the charge being given by reference to s.8 of the Highway Traffic Act of Ontario, which was the procedure followed in R. v. Glibbery.
In accordance with the comments in Isaac, charges relating to the operation of motor vehicles on the Tyendinaga Indian Reserve have been laid pursuant to s.6 of the Indian Reserve Traffic Regulations as indicated by one of the charges against the accused:
The accused was charged that on or about the 13th day of July, 1976, at the Indian Reserve of Tyendinaga, in the said County, did unlawfully drive a motor vehicle upon a highway without having attached to and exposed on the back thereof in a conspicuous position, a number plate furnished by the Department, showing in plain figures the number of the permit issued for the current year, contrary to the provisions of Section 6 of the Indian Reserve Traffic Regulations passed pursuant to Section 73(1)(c) of the Indian Act, R.S.C. 1970, Chapter I-6, and Section 8(1) of the Highway Traffic Act of Ontario.
This was one of the very sections of the Highway Traffic Act considered in the Isaac decision and, were it not for subsequent amendments to the Highway Traffic Act, that case would be determinative in relation to this first charge.
The Isaac decision was delivered on June 21, 1973, at which time s.8(1) of the Highway Traffic Act, R.S.O. 1970, c.202, read as follows:
Every motor vehicle other than a motorcycle, while being driven on a highway, shall have attached to and exposed on the front and back thereof, in a conspicuous position, a number plate furnished by the Department showing in plain figures the number of the permit issued for the current year or any part thereof.
By S.O. 1974, c.66, s.4, proclaimed in force September 1, 1974, the above section was repealed and the following substituted, the section which it is submitted has also been incorporated by reference into the Indian Reserve Traffic Regulations. Section 8(1) of the Highway Traffic Act now reads as follows:
8. (1) The owner of a motor vehicle shall not drive the motor vehicle or cause
or permit it to be driven on a highway unless,
(a) the number plate or number plates issued in accordance with the
regulations and showing the number of a permit that is issued by the
Ministry or a person authorized by the Minister and in force for the
motor vehicle are displayed on the motor vehicle in the manner
prescribed by the regulations; and
(b) where the permit for the motor vehicle has been validated, there is
affixed to the motor vehicle in the form and manner prescribed by the
regulations evidence of the validation of the permit.
Clearly, the section prescribes liability on the "owner" of the motor vehicle for failure to comply with the section. If you will, "owner" offences are separate and distinct from "driver" offences, a proposition which flows from the comments of His Lordship Mr. Justice Morand in R. v. Kutz, [1972] 2 O.R. 312, as well as the cases therein referred to. By s.6 of the Indian Reserve Traffic Regulations, Parliament has limited the incorporation by reference to "driver" offences only by inclusion of the words "the driver" in the section. To perhaps put it another way, s.8(1) does not prescribe an offence against a driver of a motor vehicle, only the owner, and to say it was incorporated by reference in the Indian Reserve Traffic Regulations would in effect create an offence under those regulations which isn't even an offence in the province. I well realize that to place this interpretation on the inter- relationship of the Acts and regulations referred to renders many provincial licencing provisions virtually inapplicable to motor vehicles on reserves. The matter gave this court a great deal of concern, however, it appears from the Isaac judgment the Ontario Court of Appeal had almost anticipated such a problem in some of their comments.
In considering s.3(1) of the Motor Vehicle Accident Claims Act, R.S.O. 1970, c.281, a further charge dealt with in that judgment, at page 837 of the judgment, the court made the following comment:
The charge under the Motor Vehicle Accident Claims Act, however raises a further difficulty. Section 3(1) of that Act provides that the subject-matter of the legislation is, first, ownership and, secondly, operation of the motor vehicle.
Had the section been confined solely to ownership without any reference to the
operation of a motor vehicle, additional considerations might arise. For the same
reason as stated above with reference to the Highway Traffic Act, s.73(1)(c) of the
Indian Act is in terms broad enough to authorize the incorporation by Regulation
of the Ontario Motor Vehicle Accident Claims Act, s.3(1), in so far as it relates
at least to the operation of a motor vehicle. Beyond that we are not, for the
purpose of disposing of this appeal, required to go.
Therefore, giving s.6 of the Indian Reserve Traffic Regulations a meaning
which leaves the Regulation intra vires the statute, we find that the Regulation
has adopted those portions [and I emphasize the words "those portions", those
portions] of s.3(1) of the provincial statute mentioned above, and which are relied
upon in this charge.
Clearly, the court seems to be referring to the "operation of a motor vehicle" as being those portions of s.3(1) which have been adopted by the Indian Reserve Traffic Regulations, but did not go as far as to say the "owner" portion was also adopted. I would suggest for the very reasons enunciated herein, taking all these factors into consideration, the offence under s.6 of the Indian Reserve Traffic Regulations particularized by reference to s.8(1) of the Highway Traffic Act will therefore be declared a nullity as disclosing no offence known to law.
The accused was also charged as follows:
that he did on or about the 13th day of July 1976, at the Indian Reserve of Tyendinaga, in the said County, being the ownr [emphasis added] of a motor vehicle, did operate the same on a highway and did unlawfully fail to produce evidence required under sub-section 1 of Section 3 of the Motor Vehicle Accident Claims Act, R.S.O. (1970), when requested to do so by a Constable, or within a reasonable time of said request, contrary to the provisions of Section 6 of the Indian Reserve Traffic Regulations passed pursuant to section 73(1)(c) of the Indian Act, R.S.C. 1970, c. I-6 and s.3(3) of the Motor Vehicle Accident Claims Act.
Once more, the Isaac decision would have been determinative were it not for the particularizing of the offence by reference to s.3(3) of the Motor Vehicle Accident Claims Act, R.S.O. 1970, c.281, which was repealed by S.O. 1973, c.13, s.2, and the following substituted:
Every owner of a motor vehicle who fails to produce evidence under sub-section (1) when requested to do so, or within seventy-two hours of such request, is guilty of an offence and on summary conviction is liable to a fine of not less than fifty dollars and not more than five hundred dollars.
The same considerations apply as applied to the offence particularized by reference to s.8(1) of the Highway Traffic Act. This offence is also an "owner" offence and has not been incorporated by reference. The Isaac decision was concerned with s.3(1) of the Motor Vehicle Accident Claims Act which included the reference to "operation of a motor vehicle", whereas this section refers only to "owner." This charge under s.6 of the Indian
Reserve Traffic Regulations as particularized by reference to s.3(3) of the Motor Vehicle Accident Claims Act will also be declared a nullity as charging no offence known to law.
At the outset of this judgment I made some general comments which I indicated would have some relevance later in this judgment. I well appreciate the comments I am now about to make may be construed by some as exceeding the functions with which I am charged as a judicial officer. Be that as it may, I think the general public are entitled to these views to better appreciate the judicial function.
As I have indicated, the Indian Reserve Traffic Regulations incorporates by reference many provincial offences, the offence of course being a contravention of the Indian Reserve Traffic Regulations and not a contravention of the provincial legislation so incorporated. By s.9 of those regulations certain penalties are prescribed for contravention of those regulations:
9. Any person who violates any of the provisions of these regulations shall be guilty of an offence and shall be liable upon summary conviction to a penalty of not less than one dollar and not more than fifty dollars, or to imprisonment for a term not exceeding two months.
Situate in the south-west corner of Hastings County is the Trenton Air Base, the control of traffic being governed by the provisions of the Government Property Traffic Act, R.S.C. c.G-10, and regulations passed pursuant thereto, in effect not too dissimilar to the situation existing on the Indian reserve. By s.21(1) of the Government Property Traffic Regulations, penalties of a fine up to $500.00 or to imprisonment for six months or both for contravention of any of the regulations, regulations which, by virtue of s.6, also incorporate by reference some provincial Highway Traffic Act provisions.
The anomalous situation exists that within an area of approximately twenty miles three different penalties apply to offences whose ingredients are exactly the same. Illustrative of the point I am attempting to make, if the offence of careless driving is committed on the Indian reserve, the penalty is a minimum of one dollar and a maximum of fifty dollars; if committed on a highway located between the Indian reserve and the air base, the minimum is one hundred dollars with a maximum of five hundred dollars; if committed on the air base, there is no minimum fine but a maximum of five hundred dollars. Given those statutory penalties, it is impossible for the court to impose penalties which in any way could create an appearance of uniformity within this twenty mile area. The same comments of course are applicable in relation to many other offences, also incorporated by reference.
Not only are the potential penalties dissimilar, the procedure applicable to the areas are different. For many offences committed other than on the air base or the Indian reserve, the law enforcement agencies can have recourse to the summary ticket procedure set out in the Summary Convictions Act,
R.S.O. 1970, c.450, for the commencement of proceedings. In relation to the air base and the Indian reserve, the provisions of Part XXIV of the Criminal Code applies, requiring personally served summons, a factor which I am sure must entail a considerable expense in time and money.
Not only do different procedures apply, offenders on the air base and the Indian reserve are not provided an opportunity to pay a fine out of court as is the situation with many provincial offences.
Taking all these matters into consideration, not only are there disparities in sentencing for what are essentially similar offences, the more cumbersome procedure of the Criminal Code and non-provision for out of court settlements places not only an increased burden on the court system, but to some extent creates a situation whereby offenders on either the air base or the Indian reserve must regard their application of the relevant legislation almost discriminatory.
At a time when the judicial system is being attacked from many quarters regarding its efficiency, I think it is incumbent upon the court to bring to the attention of the public anomalous situations such as exist in this county. I seriously question whether the most astute legal mind could explain this situation to the average citizen in terms that would render the procedure logical. If the system itself is incomprehensible, it is my view it detracts from its credibility to the average citizen.