Win some, lose some

by James Menzies

TORONTO, Ont. – It comes as little surprise that Ontario’s speed limiter law, as unpopular as it is among truck drivers, is being challenged on numerous fronts through the provincial court system.

Those who’ve taken on the law or fought their individual tickets have had mixed results. Those opposed to the law hail the case of Gene Michaud as their single most important victory. Michaud, with financial backing from the US-based Owner-Operator Independent Drivers Association, won a case before a Justice of the Peace, which found the law to be unconstitutional under Sec. 7 of the Charter of Rights.

Not long after, owner/operator Lee Ingratta lost his well-publicized case, in which he argued enforcement officers should have to sign a waiver accepting responsibility for any damage caused by the EZ-Tap reading device they plug into his vehicle’s ECM.

Another particularly interesting, yet lesser known, challenge involved Don’s Triple F Transport. A company truck run by the carrier was inspected by MTO officers at an inspection station along Hwy. 401 on Oct. 11, 2009 and was found to be in violation of the speed limiter law. The truck had a speed limiter activated, but it was set at 121 km/h, well above the legal requirement of 105. As such, the operator was handed a ticket under the charge of: “Permit operation of commercial motor vehicle not equipped with working speed-limiting system.”

This language is referred to in legal circles as the “short-form wording,” or a summary of the offense that is written by the enforcement officer onto the ticket.

Justice of the Peace Donna Phillips, in dismissing the charge, ruled that: “The charge is not having a working speed limiting system. There is a system on the commercial vehicle that wasn’t set at the right speed. The system is there, and the charge is not equipped with a working speed limiting system.”

The legal community immediately took notice of the ruling, because it highlighted a potentially glaring loophole and called into question the validity of the short form wording.

Furthermore, the Justice of the Peace also found that there were legitimate questions about the enforcement officer’s knowledge of the EZ-Tap device that’s used to determine compliance with the law. Under questioning, it was apparent that the officer didn’t understand all the fault codes generated by the device and that there was no way to be completely sure that the data transmitted wirelessly from the handheld device to the scalehouse computer was coming from the truck in question.

The ruling was appealed unsuccessfully by the Ministry of Transportation. It then took its case to the higher Court of Appeal, where a three-judge panel heard the case. The appeal was once again dismissed on the basis of the officer’s understanding of the device’s fault codes, but two of the judges found the short form wording to be sufficient, essentially eliminating that defense.

Jodi Burness of Thamseville, Ont.-based Burness Paralegal Systems, says the Don’s Triple F case raised plenty of questions, many of which remain unanswered.

While the issue of the short form wording has been put to rest by the three-judge panel, the court’s decision to dismiss the MTO’s appeal provides hope for anyone looking to defend against the charge by calling into question the enforcement officer’s knowledge of the EZ-Tap reader.

“What Don’s Triple F tells us is that if a defense agent can raise that doubt, that unless you have a trained officer who can give very compelling and convincing evidence relating to the use of that device and prove beyond a reasonable doubt that the reading from the internal computer inside the scalehouse, that that reading conclusively belongs to your vehicle and they can answer all the questions relating to the fault codes, then Don’s Triple F tells you you’ve got to dismiss,” she explained. “That’s the value of Don’s Triple F.”

Burness was not directly involved in that case, but she currently has “eight or nine” speed limiter-related charges before the courts. She said to date, her firm has been able to overturn the charges in about 70% of the cases she has taken on.

However, she said there has to be a legitimate defense; it’s not good enough to simply ignore the law and hope to defeat the charge on a technicality.

“Those charges are strict liability, the defendant has the right to defend the charge by showing they took reasonable care and exercised due diligence and did what a reasonable person would have done to comply,” she told Truck News.

As an example, she cited a case where her client took six trucks to a mechanic and asked for the speed limiters to be properly set. The mechanic set them to 107 km/h instead of 105, eventually resulting in a ticket.

“In that instance, there was no way the carrier can be held responsible,” she said. “We were able to show this driver was a very safe and capable driver and so consequently, he never took the vehicle to its limit.”

The client, she said, thought all along that the trucks were limited to 105 km/h.

Speed limiter charges have been disputed on a wide variety of grounds, and as a result, Burness said the MTO is wising up to any potential loopholes and is better educating its front-line inspectors on how to ensure they present charges in a manner that will survive the legal system’s scrutiny.

“We’re not seeing as many mistakes (by enforcement officers) as we did a year-and-a-half ago,” she said. “We’re seeing better investigative charges.”

Because there are no CVOR points attached to the violation, most carriers or owner/operators are willing to pay the fine rather than fight it in court. Burness said her firm charges $600 plus expenses, while most lawyers would charge substantially more. That’s more than the ticket itself. However, Burness says there are good reasons to defend against such charges when a reasonable defense is available.

“I always say that if there is a defense, why wouldn’t you subscribe to that?” she said. “And just because today there are no CVOR points associated with that charge, doesn’t mean that tomorrow there won’t be, and now you have a record of conviction, because every time you say ‘No, I’m not going to dispute this,’ that’s a conviction.”

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