Yesterday, the Ontario Court of Appeal issued an interesting decision in R. v. Michaud, 2015 ONCA 585, a test case challenging the constitutionality of regulations requiring trucks to be equipped with a speed limiter that prevents them going faster than 105 km/h. The Court found that the regulations infringed the truckers’ right to the security of the person, and were overbroad and thus contrary to section of the Canadian Charter of Rights and Freedoms. However, the Court held that this violation of section 7 is saved by section 1 of the Charter.
This is a most unusual result, and the Court itself is well aware that it is an anomaly. Indeed, it Justice Lauwers, the author of the Court’s unanimous opinion, offers some observations for why the s. 7 framework he felt bound to apply might not have been suited to the case. While I am not sure that the Court’s conclusion under s. 7 is correct, its reasons deserve careful consideration, because they engage thoughtfully with a number of issues that are likely to be important on the years and perhaps decades to come.
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The main argument for the unconstitutionality of the speed limiter requirement was that in some situations it may be necessary for a truck driver to accelerate in order to get out of a dangerous situation, and that insofar as the limiter prevents him from doing so, it compromises his safety, and thus his constitutionally protected “security of the person.” In addition, it was said that forcing trucks to move more slowly than other vehicles on the road was a source of inherent danger. The government, for its part, argued that speed limiters serve “to reduce greenhouse gas emissions, to reduce the severity of collisions, and to prevent accidents.” [7] Both the defence and the prosecution also submitted expert reports detailing the speed limiters’ alleged dangers and benefits.
In applying section 7 of the Charter, the Court of Appeal stressed that, under the framework set out by the Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the concern at this stage of the analysis is with “the relationship between the individual claimant and the law,” not “the relationship between the private impact and the public benefit of the law.” [62] If the law has an impermissible effect on the claimant, then it infringes s. 7, and its “public benefit” can only be considered at the s. 1 stage of the analysis. The Court considered itself bound, “[o]n a strict and literal reading of Bedford,” to conclude that the regulations do indeed endanger truck drivers in an overbroad way. They prevent a truck driver “from accelerating beyond 105 km/h in all situations where it is needed to avoid collisions,” [73] compromising his security. “For those in such a situation,” the Court holds, “the law contradicts its own purpose of improving highway safety; for them the legislation is overly broad and operates in an arbitrary manner.” [74]
The Court then turns to s. 1. It begins by observing that, in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court recognized that it might be possible to justify violations of s. 7 by reference to the “public good,” which is not considered in an analysis under that provision. “This,” the Court says, “is one such situation. More are predictable” [83] due to the exclusion of the beneficial effects of the impugned law from consideration under s. 7.
The Court then proceeds to discuss safety regulations and risk management at some length. It notes that “[s]afety regulation often sets bright line rules, rather than standards,” [88] which makes for greater legal certainty. The trouble is that such rules will both allow behaviour that contradicts their purpose to happen, and penalize behaviour that isn’t actually inconsistent with their aims. The substance of each rule is also subject to a cost-benefit analysis. The more stringent a safety rule, the more accidents and deaths it will prevent; but the more onerous compliance with it will be. Designing an optimal rule is necessarily a trade-off between safety and efficiency, complicated by the uncertainty of the relevant science and lack of experience. And however the balance is ultimately struck, it will always be the case that “the regulator countenances the possibility that someone participating in the regulated activity will be put at risk of injury or even death” [98] by not making the regulation stricter than it is. As a result, the Court cautions, “much safety regulation, if it falls to be assessed under the singular approach required by Bedford, would be seen to be inconsistent with security of the person under s. 7 of the Charter.” [99] An additional complication results from the choice between ex-post regulation of conduct by means of imposing penalties for infringing a rule and ex-ante regulation, as in this case, that makes infringement impossible. Ex-ante regulations are an application of the “precautionary principle,” which the Supreme Court has endorsed in the context of environmental law, but they are more likely to be over-inclusive and thus overbroad in a way contrary to s. 7. The takeaway from this discussion is an insistence that, in view of the complexities of regulatory design and the expertise that goes into it, and also considering that what is at issue is a regulatory rather than a criminal offence, courts ought, as in administrative law, to defer to legislative decisions.
Applying at last the s. 1 framework to the speed limiter requirement, the Court concludes that its safety objectives are pressing and substantial, considering “[t]he daily carnage on our roads.” [115] The requirement is connected to these objectives, because of “the link between speed and the severity of collisions.” [119] It is also minimally impairing ― in sense of being well within the realm of reasonable regulatory choices to which courts ought to defer. Even though the ban on speeding by trucks is “absolute,” the legislature was entitled to conclude that its safety objectives demanded no less. The choice of the figure at which the limiter must be set is also something on which courts ought to defer to the regulators. Finally, the positive effects of the limiter outweigh the negative ones, which only arise in a very small fraction of cases.
Before concluding, the Court offers its “reflections” on what it sees as the defects in the analytical framework it saw itself bound to apply. In its opinion, neither the trade-off between maximum safety and efficiency nor the choice of (occasionally over-inclusive) rules over standards “truly engage either deprivation of security of the person or the constitutional principles of fundamental justice; the idea that they do risks trivializing these concepts.” [149; footnote omitted] The Court suggests that the Supreme Court’s definition of overbreadth might itself be overbroad, and that treating any negative impact on a person’s security interest as a “deprivation” within the meaning of s. 7 allows violations to be made out too easily. Its proposed solution “is to recognize them as a distinct category of legislation,” [151] for which societal effects would be taken into account at the s. 7 stage.
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As I have suggested above, I’m not entirely sure that the Court’s s. 7 analysis is right. Mostly I wonder whether the Court is right to conclude that security of the person is actually engaged. The way it describes the evidence, there doesn’t seem to be much if any proof that any situations where we know that accelerating past 105 km/h actually occurred. The Court is content to infer that from the finding by the court below on the basis of a study, “acceleration was used in fewer than two per cent of traffic conflicts to avoid potential crashes” [23] ― which the court then recasts a conclusion that “acceleration to avoid collisions is needed in about 2% of traffic conflicts.” [73] But, for one thing, that an “evasive manoeuvre” was used doesn’t show, it seems to me, that it was needed and there were no alternatives. For another, as the Court itself points out, we don’t know the actual speeds at which these incidents occurred.
In short, unlike in cases like Bedford, where social scientific evidence was used in addition to stories of actual people affected by the impugned legislation, here, the case seems to be based purely on statistical guesswork. To be sure, there was, apparently, some “anecdotal” evidence from the accused himself, but the Court does not even mention it in its analysis. Whose security was affected? To what extent? Was there a more than de minimis negative impact, much less a deprivation? I’m not sure the Court has answers to these questions.
This case is most interesting, however, for the broader issues it raises. Is the Court right that the approach to section 7 set out in Bedford is not suited to analyzing the constitutionality of safety regulations? Is its proposed solution to this problem the right one? What role should the courts play in such cases? I will address these questions, and others, in a separate post later this week. In any event, unless the Supreme Court takes up this case, if Ontario regulators want to put safety first, they’ll have to rely on the Charter’s section 1.
Double Aspect 