By David Tanner, associate editor
What started out as a traffic ticket against Canadian trucker Gene Michaud in 2009 transformed into a case that could affect policy decisions about speed limiters on both sides of the U.S.-Canada border.
The message, in the form of a ruling by the Ontario Court of Justice’s Provincial Offences Division, is that government-mandated speed limiters do not make the roads safer and in fact create dangerous situations.
The June 6 ruling by Justice Brett A. Kelly said that the law requiring speed limiters on heavy trucks jeopardized Michaud’s right to personal security under the Canadian Charter of Rights and Freedoms.
In addition to tossing Michaud’s ticket for violating the mandate, Kelly called the law “arbitrary” and said it violated the principles of fundamental justice because it did not make the roads safer.
“Mr. Michaud has reason to be concerned for his security of person as he is being placed in a dangerous situation,” Kelly stated in the ruling.
“His ability to have full care and control of all aspects of the vehicle and therefore safety is impaired as opposed to improved, and the situations described by Mr. Michaud – while they may be at times examples of poor driver practice – they are directly and indirectly the result of the regulation,” Kelly wrote.
OOIDA President Jim Johnston says the ruling will affect the proceedings for any jurisdiction including the U.S. that is considering a mandate for speed limiters. The proponents do not have solid science to make safety claims about speed limiters, something the judge pointed out, and that could prove to be significant.
“This is really the reason we took this case on to start with, and funded it, not only because of the impact on our Canadian members, but because of the even greater impact it could have on our U.S. members, both those who travel in Canada as well as those who may be subject to similar types of rulings in the U.S.,” Johnston said.
“Right now, we’re battling with ATA and other interests that very much want to see speed limiters put on trucks.”
Michaud, who drives most of his miles in the U.S., testified that the speed-limiter mandate forced him to drive slower than the flow of traffic and deal with all of the vehicle interactions and road rage that go along with it. He says he spec’d his truck to a safe standard for him.
“My truck was governed at 68 mph. I wasn’t one of those big cowboys that wanted to break the sound barrier,” Michaud says. “I figured the government would tie the trucks up at 65, so I went at 68, just in case it would get me out of trouble.”
Michaud, an OOIDA member from St. Catharines, Ontario, says drivers need to be able to handle a vehicle when hazardous or even dangerous situations occur.
“If something happens during a jackknife – the start of a jackknife – the only way out that I’ve known through my years is to accelerate to try to stay in front of that trailer, because otherwise there would be problems,” Michaud told “Land Line Now.”
Michaud called the court victory “a big day and a big win” for professional truck drivers.
“When the judge went in our favor, I just couldn’t believe it,” he said.
While the court ruling is not enough to overturn the law, it is significant because of what the judge said and the precedent that could emerge if the trucker defeats a likely appeal by the province.
Johnston says the judge made the right call in saying the provincial law was arbitrary.
“He definitely ruled that it was arbitrary. Down here we call it ‘arbitrary and capricious,’ that there was no basis for it, and that there was also no evidence to show that this change has any effect whatsoever on safety,” Johnston said.
News reports quoted the Ontario Trucking Association’s David Bradley as downplaying the significance of the ruling. Bradley and the OTA were the ones lobbying for the law back in late 2005 on grounds that it would make the roads safer and save fuel.
Back then, as is the case now, OOIDA and OBAC (the Owner-Operators Business Association of Canada) openly disputed claims made about speed limiters by Bradley and the lawmakers that enacted the law in 2009.
“The real motivation of big-business proponents of speed limiter mandates is to drive up costs for small-business truckers and hurt their ability to compete,” Johnston said.
OBAC Executive Director Joanne Ritchie says the ruling is sure to have an effect on the Canadian provinces.
“There’s a lot riding on this case,” she said. “With this ruling, they would have to think awfully long and hard before they put this regulation in other provinces. It’s probably keeping it at bay in other jurisdictions.”
Another significant result of the ruling is the media coverage. Finally, a victory for professional truck drivers hit the mainstream including major Canadian newspapers, TV, radio and websites.
Media that were barely tuned in to the issue when the speed-limiter bill, Bill 41 of 2008, was being debated in Ontario have snapped to attention now because of the ruling that the law is unconstitutional.
“This opens the eyes of some of the non-trucking people because they thought speed limiters were something the trucking industry wanted. That’s simply not the case,” Ritchie said.
Michaud’s attorney, David Crocker of Davis LLP, is also fighting for truckers in other cases involving Ontario’s speed-limiter law.
One of those cases involves owner-operator Lee Ingratta, a member of OOIDA and OBAC from Gravenhurst, Ontario. He was cited in 2009 for “refusing” to allow an inspector to check his speed setting. But all Ingratta did was ask that the province and the inspector sign a waiver to accept any possible damages the inspection could cause to his truck’s computer.
In that case, Ingratta offered a “defense of necessity” under Canadian law, arguing that his actions are justified. Ingratta says he is worried about the devices used by inspectors and the possibility of a static-electric charge “zapping” his computer. Before trucking, Ingratta owned his own computer business.
Michaud testified on behalf of Ingratta’s defense against the province a few months ago. Ingratta is standing by for a ruling in his own case scheduled for July 20.
There are more cases, too, each one with an ability to take a bite out of the limiter law. So far, Michaud’s case remains the strongest chance to overturn the law, but it will take a ruling by a higher court for that to happen.
Emna Dhahak, senior bilingual media liaison officer for the Ministry of Transportation, said at press time that the ministry was considering an appeal. The province has until July 6 to file.
“This case doesn’t change the law, and we’ll continue to enforce the law,” Dhahak told Land Line.
“The ministry is reviewing the decision and will consider the possibility of an appeal to a judge of the Ontario Court of Justice.”
Dhahak says the province has issued just shy of 3,000 citations in relation to speed limiters from the opening enforcement date of July 1, 2009, through April 30 of this year. Checks for speed limiters, however, were not part of the recent CVSA Roadcheck safety blitz. Fines for not having a working speed limiter range from $250 to $390 including court costs. LL