IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           By way of Violation Ticket AJ03350254, Richard Dassylva is charged under ss. 37.18.04(b), 37.18.06(2), and 37.23(3) of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 for offences which are alleged to have occurred on February 18, 2018, at or near Mackenzie, B.C. Mr. Dassylva disputed the Violation Ticket and the matter came for hearing before me on February 21, 2019.

[2]           Constable M. Sallis prosecuted the offences on behalf of the Crown and was the Crown’s only witness. Mr. Dassylva was self-represented and the defence’s only witness. The Crown tendered into evidence two exhibits comprising of two logbooks which Constable Sallis seized from Mr. Dassylva on February 21, 2019.

[3]           The salient issues in this matter are as follows:

[4]           Constable Michael Sallis has been a member of the RCMP for past 15 years. Prior to joining the RCMP Constable Sallis spent 20 years as a long distance truck driver.

[5]           Constable Sallis testified that on February 18, 2018, he was on duty in uniform driving a marked police cruiser. There had been public complaints about regulatory non-compliance by commercial vehicles operating in the District of Mackenzie prompting the RCMP to undertake compliance check stops.

[6]           Cst. Sallis was parked at the intersection of Highway 39 and the causeway which leads into Tsay Keh Dene and the interior, checking commercial transport vehicles for compliance. At 4:00 p.m. Constable Sallis saw a Kenworth tractor without a trailer heading northbound on Highway 39 near the causeway outside Mackenzie. Constable Sallis followed the commercial vehicle as it pulled off Highway 39 and headed westbound on Mill Road. Because road conditions made it unsafe to do so immediately, Constable Sallis followed the Kenworth for a few kilometres along Mill Road before stopping the vehicle. He approached the driver who identified himself as the accused, Richard Dassylva. At Constable Sallis’ request, Mr. Dassylva handed him his B.C. Class 1 Driver’s Licence, registration, insurance, pre-trip inspection reports and logbooks. All documents were valid and in order except for the pre-trip inspection reports and daily logbook. Mr. Dassylva’s driver’s licence indicated he resided in Prince George, B.C. The Kenworth’s registration also indicated its home terminal was Prince George, B.C.

[7]           Cst. Sallis explained that because Mr. Dassylva was operating a commercial vehicle weighing more than 14,600 kilograms and was more than 160 kilometers from its home terminal, he was obligated under the MVA Regulations to maintain a daily logbook and pre-trip inspection report. The Daily logbook records Mr. Dassylva’s start time, where he does his pre-trip inspection, driving time, loading time, sleeper berth, and his on-duty and off duty hours. Because he was not hauling any freight Constable Sallis did not ask Mr. Dassylva to produce any Bill of Lading.

[8]           Mr. Dassylva produced his logbooks, which were incomplete. They showed no entries after December 29, 2017. Mr. Dassylva could not produce the 14 previous days of pre-trip inspection reports and logbooks. Constable Sallis seized the logbooks, which were marked as Exhibits 1 and 2 in the trial.

[9]           Constable Sallis issued Mr. Dassylva Violation Ticket AJ03350254 charging him with three offences under the Motor Vehicle Act (“MVA”) Regulations. Count 1 charges Mr. Dassylva under s. 37.18.06(2) for keeping inaccurate logs. Constable Sallis acknowledges there was no evidence the logbooks contained inaccurate, misleading or false information, they were simply incomplete. There was a lapse in recorded information between December 29, 2017 and February 21, 2018.

[10]        Count 2 charges Mr. Dassylva under s. 37.18.04(b) of the MVA Regulations for failure to possess a daily log for the current day and Count 3 charges him, “Driver - no trip inspection report” contrary to s. 37.23(3) of the MVA Regulations.

[11]        Constable Sallis says he exercised his discretion not to charge Mr. Dassylva for failing to produce 14 days of his logbooks and 14 days of his pre-trip inspection reports. In Constable Sallis’ view, Mr. Dassylva was liable for a separate fine for each of the 14 days in which Mr. Dassylva was non-compliant. Cst. Sallis served Mr. Dassylva with a copy of the Violation Ticket and seized the logbooks and inspection reports.

[12]        Mr. Dassylva does not deny his daily logbooks and pre-trip inspection reports were not current or complete. He says he had been working in camp off-highway and therefore was not required to maintain daily logbooks or pre-trip inspection reports. Mr. Dassylva says he came in from the Ten Waters Camp to the Petro-Canada station via Mill Road.

[13]        Mr. Dassylva maintains that Constable Sallis did not pull him over, but rather approached him while he was refueling his vehicle at the Petro-Canada station off Mill Road. Mr. Dassylva at first denied he was ever on Highway 39, claiming he had driven to the gas station from camp along Mill Road and was approached by Cst. Sallis at the gas station. Mr. Dassylva asserts that in these circumstances where he was “crossing” a main road to get to the gas station, he was not required to complete a daily log or pre-trip inspection report. Mr. Dassylva did not explain what he meant by “crossing” or how long he was on a main road. Mr. Dassylva says he has a surveillance video of Constable Sallis speaking to him at the Petro-Canada station, but he did not seek to enter that surveillance video into evidence.

[14]        Mr. Dassylva submits he did not need to maintain a daily logbook or pre-trip inspection reports because he was operating the vehicle “off-highway”, which I take to mean, on a road not regulated by the Motor Vehicle Act. In his cross-examination Constable Sallis expressed the view that because Mr. Dassylva was operating a commercial vehicle on a highway, he had to prove to a police officer the whereabouts of his vehicle for the last 14 days - whether it was in camp or on the highway or a Forest Service Road. In cross-examination, Constable Sallis said to Mr. Dassylva, “Your commercial vehicle was on a highway and upon me stopping you, you need to provide me with information stating where you were for the last 14 days.”

[15]        Mr. Dassylva testified that he consulted with the Department of Transport who advised him he did not need to maintain the logbooks and reports if he was operating off-highway or if he was simply crossing a highway.

[16]        Constable Sallis explained the route he believed Mr. Dassylva was asserting as his route of travel from Camp Waters to the gas station involved a road primarily used by commercial vehicles but was nonetheless still a “highway” under the MVA. Mill road is a public road on which the police have authority to enforce the MVA regulations. Cst. Sallis testified the police show “leniency” to logging trucks operating on this road, as there are different weight restrictions for commercial transport trucks on backroads than on highways. Cst. Sallis said that as soon as he sees a commercial vehicle on a provincial highway, such as Highway 97 or 39, he checks to make sure the driver is in compliance with all necessary documentation.

[17]        Commercial vehicles are highly regulated in British Columbia. The Legislature has deemed safety of paramount importance. Section 37 of the MVA Regulations contains the safety code which regulates commercial motor vehicles. Mr. Dassylva’s tractor was a “commercial motor vehicle" as defined in the Regulations. Pursuant to Section 37.02 of the MVA Regulations, no carrier shall permit a driver to drive for the carrier, and no driver shall drive a commercial motor vehicle, unless the carrier holds a valid safety certificate.

[18]        As set out in s. 37.01 of the MVA Regulations a “daily log” is a prescribed form containing that day’s information about the carrier, driver, odometer, distance driven, originating terminal, destination, and detailing each hour of the driver’s day spent on-duty, off-duty, driving, and in the sleeper berth. Section 37.18.01 compels a driver to complete a daily log accounting for his or her time that day. It states:

[19]        Pursuant to s. 37.18.02 of the Regulations, the driver must enter all the prescribed information at the beginning and end of each day essentially accounting for his or her hours worked and distance travelled. S. 37.18.04, which Mr. Dassylva is charged with contravening in respect of ss. (b), states

[20]        S. 37.18.06 of the Regulations. Which Mr. Dassylva is also charged with contravening, makes it an offence to enter inaccurate information in the daily logs.

[21]        Drivers of commercial vehicles must also complete trip inspection reports as prescribed in s. 37.23 of the Regulations, which requires drivers inspect their vehicle and identify and record any defects prior to driving. Pursuant to s. 37.23(5), a driver may not drive a commercial vehicle without a current trip inspection report in their possession. S. 37.23(3) of the Regulations, which Mr. Dassylva is charged with contravening, provides:

[22]        Pursuant to s. 212 of the MVA, the Lieutenant Governor in Council may make regulations promoting road safety, including those respecting safety certificates, and requiring drivers to keep safety records concerning the use, condition and maintenance of motor vehicles and restricting the number of hours a day a driver may operate that motor vehicle.

[23]        The relevant sections of the Motor Vehicle Act are set out below:

[24]        Section 1 of the MVA defines highway to include “every highway within the meaning of the Transportation Act”, which Act defines “highway” as follows:

[25]        There is some question whether Mr. Dassylva returned from camp to the Petro-Canada station via a Forest Service Road. The Forest Act , RSBC 1996, c 157 defines a “Forest Service Road” as follows:

[26]        Section 7 of the Forest Service Road Use Regulation, BC Reg 70/2004, enacted under the Forest and Range Practices Act, states that a person who operates or causes to be operated a motor vehicle on a forest service road must ensure that the motor vehicle is maintained in a manner consistent with the Motor Vehicle Act and regulations or the Highway (Industrial) Act and regulations, whichever applies.

[27]        The Highway (Industrial Act) is now the Industrial Roads Act, RSBC 1996, c. 189. It provides the following definitions and provisions:

[28]        Offences under most of the MVA Regulations are strict liability offences: R. v. Dan Gamache Trucking Inc., 2005 BCSC 1487 (CanLII), paras. 10, 21 and 22; R. v. Prasad, 2019 BCPC 10 (CanLII); R. v. Calderone, 2015 BCPC 114 (CanLII), para. 35; R. v. Shymanski, 2013 BCPC 130 (CanLII), para. 27; R. v. Stockwell and Stockwell, 2009 BCPC 430 (CanLII), para. 32; R. v. Glen, 2002 BCPC 413 (CanLII), at para. 46, citing R. v. Blackburn, 1980, 9 MVR 146 B.C.C.A.

[29]        As strict liability offences there is no necessity for the prosecution to prove the existence of mens rea. The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves considerations of what a reasonable person would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event (R. v. Sault St. Marie (City), 1978 CanLII 11 (SCC)).

[30]        I find the Kenworth tractor was a “commercial motor vehicle” as contemplated in the MVA Act and Regulations. The vehicle’s registration and originating terminal as indicated on the logs, was Prince George. I am satisfied the Crown has proven beyond a reasonable doubt that the vehicle’s home terminal was Prince George and that this is more than 160 km from the location where Mr. Dassylva was driving, such that he was not exempted from preparing daily logs or pre-inspection reports by virtue of s. 37.18.01(2) of the MVA Regulations.

[31]        Mr. Dassylva does not contest that he did not keep up to date logbooks or trip inspection reports. Rather, Mr. Dassylva says he was not driving on Highway 39 as described by Cst. Sallis other than, possibly, to cross that highway to get to the gas station. He does admit driving to the gas station via Mill Road, a public road maintained by the Ministry of Transport, by way of Coquiwaldie Road, which is a logging or forest service road. I understand Mr. Dassylva’s position is that he only “crossed” Mill Road such that provisions of Division 37 would not apply.

[32]        The Crown must prove that Mr. Dassylva operated the vehicle on a road or highway subject to the relevant provision of the MVA Regulations at the time of driving. If established, then the Crown has met its burden of proving all of the essential elements of the actus reus of the charges of 37.18.04(b) and 37.23(3) to the standard of proof beyond a reasonable doubt. Given that the offences in issue are strict liability offences, Mr. Dassylva may raise a due diligence defence which he must prove on a balance of probabilities to avoid conviction.

[33]        As Mr. Dassylva has testified in his defence, the principles set out by the Supreme Court of Canada in R. v. D.W. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply. If I believe him and his evidence raises a valid defence, I must acquit. If I do not believe him, but his evidence raises a reasonable doubt as to his guilt, I must acquit. Even if I do not believe him, I must consider whether on the evidence I do accept, if the Crown has proven its case beyond a reasonable doubt. The onus of proof throughout remains on the Crown.

[34]        There is no contention that Highway 39, a major provincial highway running to Mackenzie, is a “Highway” within the meaning of the MVA. Cst. Sallis says he initially observed Mr. Dassylva’s tractor driving northbound on Highway 39, then turn on to Mill Road, where he followed for several kilometres before stopping Mr. Dassylva to check his documentation.

[35]        Mr. Dassylva’s evidence about the route he took to the gas station was unclear. His main argument seemed to be that he was not pulled over by Cst. Sallis on Mill Road, rather, he was confronted by Cst. Sallis at the Petro Canada station near Mill Road. However, the location of the final stop is of little significance. Mr. Dassylva did not teleport to the fuel station. He had to drive to the gas station on a road of some type of which there are few in this rural part of the province.

[36]        Mr. Dassylva did not detail his route from camp to the gas station and provided no maps. At first, he said he was only “off-road” when driving to the gas station, but then argued he only “crossed” a main road to get to the gas station, and that such “crossing” did not trigger the daily log and trip inspection report requirements. Mr. Dassylva did not specify which “main road” he says he merely “crossed.” I found his evidence on this issue confusing because he initially denied being on Highway 39 at all, asserting he drove in from camp “off-road”. He said he drove in all the way from camp on Mill Road, which would be a much more significant trip than just “crossing” a main road.

[37]        At the same time, I did not understand Mr. Dassylva to be asserting that Mill Road was “off-road.” In cross examination, Cst. Sallis put to Mr. Dassylva that if he began his route at Coquiwaldie Road, which is a logging road, then as soon as Mr. Dassylva turned on to Mill Road he would need a  pre-trip and logbook. Mr. Dassylva agreed with that proposition. He agreed that to get to the Petro Canada he had to access a gravel road classified as a local roadway in the township of Mackenzie, and that he necessarily would have to cross a street or road where he would ordinarily have to be “legal.” Mr. Dassylva qualified that he did not need a logbook or pre-trip just to “cross” that road. Given his earlier statements that he was not on Highway 39, I understand Mr. Dassylva’s evidence to be that he initially was “off road”, or on a non-highway, upon leaving camp, and that he was only “crossing” Mill Road, which is a highway, to get to the gas station.

[38]        The Crown adduced no official records indicating whether or not Mill Road is a “highway” within the meaning of the Motor Vehicle Act. However, based on the evidence of Cst. Sallis and the admissions of Mr. Dassylva that he knew he would ordinarily need a log book upon turning on to Mill Road from Coqawaldie, I am satisfied beyond a reasonable doubt that Mill Road is a “highway” for the purposes of the MVA regulations. Cst. Sallis testified Mill Road is a highway, it has a posted speed limit, and the police have authority to enforce the MVA on it.

[39]        Even if I am wrong in that finding, I accept the evidence of Cst. Sallis that he initially observed Mr. Dassylva driving northbound on provincial Highway 39 at the causeway, not Mill Road. It is not contested Highway 39 is a “highway” within the meaning of the MVA. I accept Cst. Sallis’ evidence that he was parked at Highway 39 and the causeway for the purpose of checking commercial vehicles travelling on the provincial highway and that is how Mr. Dassylva’s vehicle, a Kenworth tractor pulling no trailer, came to his attention in the first place. I find Cst. Sallis’ choice of perch – Highway 39 – was consistent with his motivation, namely, to respond to public complaints about commercial vehicle compliance on the highways. The Violation ticket identifies the location of driving as “Highway 39 at Causeway.”

[40]        I further accept Cst. Sallis’ evidence that he followed Mr. Dassylva’s vehicle several kilometres on Mill road before stopping him to ask for his documentation. Given the rural nature of the roads, I do not believe Cst. Sallis somehow confused Mr. Dassylva’s tractor with another identical tractor he had seen on Highway 39. It was not suggested to Cst. Sallis that he lost visual continuity of the tractor he says he followed from his perch at Highway 39 and the causeway to the stop location.

[41]        I find the Crown has proven beyond a reasonable doubt that Mr. Dassylva operated the commercial vehicle on a “highway” for the purpose of s. 37.18.04(b) and 37.23(3) of the Motor Vehicle Act. I also find, and it is not contested, that Mr. Dassylva did not possess a completed daily log or a pre-trip inspection report at the time of driving. Rather, Mr. Dassylva argues that legally he is not required to prepare such records in circumstances where he is only briefly driving on a highway, such as crossing over the highway to get to the fuel station.

[42]        I do not find the language or the spirit of the MVA or Regulations support such an interpretation. It is clear that commercial vehicles are highly regulated and foremost of the Legislature’s concerns is safety. Requiring carriers and drivers to conduct daily trip inspection reports and to log their on-duty activities and hours of work is an essential aspect of maintaining road safety. The expansive definitions of “highway” under the MVA and ancillary legislation ensures there are very few exceptions to safety provisions legislated in the MVA Regulations.

[43]        There is nothing in the legislation exempting a driver from preparing safety records where they are only briefly driving upon, or crossing over, a highway. The legislature did turn its mind to circumstances in which a driver may be exempted from preparing a daily log and limited that exemption to drivers who were essentially driving close to their home base as part of a fixed 8-hour workday. The context in which the exemption arises addresses the hours and work schedule of the driver, not the distance spent driving on a highway. Similarly, the MVA applies to any operation of motor vehicles on a highway without limiting its application to circumstances where such operation on a highway is only brief. I find that the provisions of s. 37.18.06, 37.18.04 and 37.23 of the MVA Regulations apply to any vehicle or driver where a commercial vehicle is being operated on a highway regardless of how much time or distance is spent on that highway.

[44]        Operating a commercial vehicle on a highway without maintaining an accurate and current daily logbook and trip inspection reports are strict liability offences. Having found the Crown has proven these facts beyond a reasonable doubt, Mr. Dassylva must be convicted unless he can establish a due diligence defence.

[45]        In assessing Mr. Dassylva’s defence, the Court must consider what a reasonable person would have done in the circumstances. Dickson J. of the Supreme Court in Sault Ste. Marie noted at p. 1326 that the defence of due diligence “will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.”

[46]        In this case, Mr. Dassylva knew he was not maintaining the daily logs or trip inspection reports. He says he did not do so because he believed, based on his discussions with someone at the weigh station, that it was unnecessary where he was merely “crossing” a highway. Again, he did not define what he meant by “crossing,” given that he would have to have driven some distance, at the very least, on Mill Road to get to the fuel station.

[47]        I find Mr. Dassylva’s belief that a driver does not need to comply with Division 37 of the MVA Regulations when they are “crossing” a highway is an error of law. Errors of law do not give rise to a defence of due diligence. Further, I find that an informal conversation with someone at the weigh station about generalities does not meet the requisite standard of “due diligence.” There is no evidence of who this “person” was, whether they were a person of requisite knowledge or authority with the Department of Transport, and, most importantly, whether Mr. Dassylva told this person precisely what roads and route Mr. Dassylva was referring to in connection with his query. I find his defence cannot succeed on a balance of probabilities, even if it were a mistake of fact and not law.

[48]        I find Mr. Dassylva Guilty of Counts 2 and 3 on the Violation ticket, namely, failing to keep a daily log and failing to have a trip inspection report.

[49]        The “tampering” charge under 37.18.06(2) is more serious than the Counts 2 and 3 on the Violation Ticket. The gravity of the offence is reflected in the quantum of fine under the Violation Ticket Administration and Fines Regulation, BC Reg 89/97. The offences under ss. 37.18.04(b) and 37.23(3) each attract a fine of $120 while an offence under s. 37.18.06(2) attracts a fine of $520. Section 37.18.06 states:

[50]        Cst. Sallis argues Mr. Dassylva’s failure to keep logs contravenes this section because incomplete logs are necessarily “inaccurate”. However, I find that is not a correct interpretation.

[51]        First, there are already offence provisions in the Regulations for failing to maintain logs under s. 37.18.04, such that this section would be redundant if interpreted in that manner. The principles of statutory interpretation favour a presumption against legislative redundancy. Secondly, the fine for failing to keep logs under s. 37.18.04 are much lower than a fine under s. 37.18.06, which suggests an offence under s. 37.18.06 involves higher moral culpability or more serious conduct than just failing to keep current logs.

[52]        Lastly, the provision itself does not contemplate omission as part of the actus reus. Section 37.18.04 addresses circumstances where there is a failure to act in accordance with a positive legal duty, specifically, the duty to complete logs. By contrast, s. 37.18.06 addresses positive actions, not omissions, namely the acts of “entering” inaccurate information, or “falsifying, mutilating, or defacing” logs. These all require action on the part of the driver in creating an inaccurate log.

[53]        Further, use of the term “inaccurate” logs in s. 37.18.06, when viewed against the language of s. 37.18.04 which speaks of “completed” logs, suggests the Legislature intended to target conduct which results in logs being misleading as opposed to just incomplete. The heading for s. 37.18.04 is “Tampering.” The view favoured in most recent judgments from the Supreme Court of Canada is that for purposes of interpretation headings should be considered part of the legislation and should be read and relied on like any other contextual feature (Sullivan on the Construction of Statutes, 6th Ed., at 1452). “Tampering” connotes a positive act or alteration.

[54]        Cst. Sallis acknowledges that Mr. Dassyvla’s logs were not misleading or false, they were just not done. He says they were “inaccurate” because they were not “accurately” completed as required by law. However, I find the logs entries were absent, which is not the same as saying the information contained in the logs was “inaccurate.” Considering the mischief this section was intended to prevent, it cannot be said that a peace officer reading those logs could be misled about the vehicle’s operations or driver due to the entry of inaccurate information. In all of the circumstances I find the tampering charge, Count 1, has not been proven beyond a reasonable doubt and I acquit Mr. Dassylva of that charge.

[55]        In summary, I find Mr. Dassylva guilty of Counts 2 and 3, and not guilty of Count 1 on Violation Ticket AJ03350254.