R. v. Tri-M Systems Inc.
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Mr. D. Stead
Agent for the Defendant
3. The defendant served notice on the Attorney Generals of Canada and British Columbia on 24 October 1997, pursuant to s.8 of the Constitutional Question Act, that he will be seeking the following remedies:
5. The defendant submitted a written "Outline of Submissions." Both parties submitted their respective casebooks. A hearing on the constitutional question was held on 10 March 1998 at New Westminster, B.C. Mr. Stead represented himself while appearing as agent for the defendant. Mr. N. Jensen appeared as counsel for the Crown. Mr. Stead presented a revised version of written submissions as well as a document titled "Updates to Defence Case Book." Both parties presented viva voce submissions. Ruling on motion was reserved to today's date.
6. Both parties agreed to the following facts
11. Section 25 establishes a licensing scheme. Subsection
7 reads as follows
13. Section 83.1(2) places liability on owners of motor vehicles
whose speed was accurately measured and recorded by a device prescribed
pursuant to subsection (8). This section reads as follows:
15. S. 83.1(8) authorises Lieutenant General in Council to identify a prescribed speed monitoring device.
16. S. 41.01 of the MVA Regulations identifies that AutoPatrol Speed Camera Model PR100 as the prescribed device pursuant to s. 83.1(8) of the MVA.
17. S. 83.1(3) imposes a burden on the owner of the vehicle to prove that the another person was in possession of the motor vehicle at the rime of the contravention, that the owner exercised reasonable care and skill in entrusting that person with the motor vehicle, or that the registered owner is not the owner of the motor vehicle.
18. S. 83.2(2) provides that an enforcement officer may give evidence of an offence by signing a certificate if this evidence was gathered through the use of photographic radar.
19. S. 83.2 (3) states that a certificate under this section is without proof the signature or the official position of the person signing the certificate, evidence of the facts stated in the certificate.
20. S. 83.2 (4) provides that the person against whom the certificate is made must obtain leave of the court to require the attendance of the enforcement officer who signed the certificate for purposes of cross examination.
22. The above question raises two issues:
23. Section 7 of the Charter reads as follows:
25. The Crown disagrees. The Crown. on the strength of R. v. Dedman (1985) 2 S.C.R. 2, 46 C.R. (3d) 193, 34 M.V.R. 1, 20 C.C.C. (3d) 97; R. v. Neale (1986) 5 W.W.R 577; R. v. Smith (1989) 14 M.V.R. (2D) 166 (Y.T.C.A.); R. v. Buhlers (1998) Unreported, Supreme Court of British Columbia, Victoria Registry, No. 3154/97, contends that holding of a drivers' licence is not a Charter protected right as articulated in Robson, supra.
26. Furthermore, since the vicarious liability provisions in s. 83.1(2) of the MVA preclude any possibility of imprisonment, liberty rights are not violated and even if there is some breach it is saved by s. 1 of the and contextual Charter, see Re. Sim and Superintendent of Motor Vehicles et. al. (1984), 14 D.L.R. (4th) 763 (B.C.S.C); R. v. Evans (1998), Unreported, 16 January 1998, Provincial Court of British Columbia, Victoria Registry SA00114596; R. v. Ferlatte (1983), 23 M.V.R., 253 (N.B.C.Q.B.); R. v. Free (1990), 25 M.V.R. (2d) 30 (A.C.Q.B.); R. v. Geraghty (1990), 22 M.V.R. (2) 57 (B.C.C.A.). R. v. Gray (1988), 9 M.V.R. (2d) 152, (M.C.A); R. v. McInnis (1997), Unreported, Provincial Court of British Columbia, Victoria Registry SA00456279; R. v. Pratt (1996), Unreported, 14 February 1996, Supreme Court of British Columbia, Victoria Registry No. 77175; R. v. Pres Ventures Ltd. (1997), Unreported, 18 June 1997, Provincial Court of British Columbia, Nanaimo Registry SA00308321; R. v. Russell (1971), 4 C.C.C. (2d) 494 R. v. William Robert Duncan (1984), Unreported, British Columbia Court of Appeal, Vancouver Registry CA001477.
27. Buhlers, supra, was a petition to the Supreme
Court of British Columbia by the defendants challenging the constitutional
validity of ss. 94.1 and 94.6 of the MVA. The impugned sections
create a regulatory scheme to address the problem of drinking and driving
by establishing an administrative prohibition regime and a review process.
On page 18 of this decision Mr. Justice Melvin writes that
29. The section 7 inquiry is essentially purposive. In Pearlman
v. The Manitoba Law Society (1991) 2 S.C.R. at page 882 a majority
of the Supreme Court of Canada held that
32. In R.
v. Wholesale Travel [ 3 S.C.R. 154]
Madame Justice L'Heureux-Dube and Mr. Justice Cory have articulated
34. The defendant asks me to distinguish Buhlers, supra,
because Robson, has not been overturned and is still the law in
British Columbia. In light of my analysis that s. 7 enquiry must be purposive
and contextual, I respectfully agree with the defendant. In doing so, application
of Horsefield, supra is also in order. The court in the later
case deducted that driving is a liberty
38. Mr. Stead further argues that the photo radar legislation
deprives an accused of the prima facie right to cross-examine the enforcement
officer. There has never been a requirement in the law or been a tenet
of fundamental justice that an accused has right to confront any witness
before a judge. Indeed, Wilson J. writes in R.
v. Potvin (1989) 1 S.C.R. 525, 47 C.C.C. (3d) 289,
39. Mr. Stead states that as set our in the "Agreed Statement of facts, not all communities in British Columbia are subject to the use of photo radar." Firstly, the MVA is a law of general application throughout the province of British Columbia. Municipal governments may choose to make any motions these, however, would be ultra vires their statutory powers. The fact that photo-radar enforcement is not being applied in the Municipality of Surrey is perhaps an unwise decision but it is nor unlawful. As such, I respectfully disagree with Mr. Stead on the issue that non-enforcement of a provincial statute in certain municipalities is an impairment of his liberty rights
40. The defendant in the case at Bar argues that while there is no possibility of imprisonment as a result of speeding offences where a person is liable pursuant to s. 83.1(2) of the MVA. The net effect would be that a person likely unable to have their license or motor vehicle registration renewed. This constitutes impairment of a person's right to drive. In Wholesale Travel, supra, Lamer and Sopinka wrote that "A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence." That is, the principles of fundamental justice cannot take on different meaning vis-à-vis regulatory offences simply because of the characterisation of these offences.
41. The principles of fundamental justice as expressed in s.
7 is to provide qualifiers to predicate, express, articulate or abridge
and curtail liberty rights as well as rights to life and security of person.
In Reference Re Section 94(2) of the Motor Vehicle Act (1986), 24
D.L.R. (4th), Lamer J., as he then was, writes that
44. In Sault Ste Marie, supra, Mr. Justice Dickson
writing for the unanimous court distinguished between the true criminal,
strict liability and absolute liability of offences. On the one end
of this liability spectrum is true criminal offences where mens rea
or mental element must be proven. On the other end are absolute offences
where no moral fault is required for conviction. The strict liability falls
between these two distinct ends. According to Mr. Justice Dickson
46. A non-photo-radar speeding is an absolute liability offence. At the trial for such offences, the Crown must prove essential elements of the charge beyond reasonable doubt. As a norm one or more witnesses testify, who are then subject to the cross-examination. A trier of fact conducts the trial in accordance with judicial ethics and evidentiary rules. Law is then applied to the facts adduced and a judgement rendered.
47. Mr. Stead states that "a principle of fundamental justice
is that persons charged with the same offence ought to receive the same
procedural rights and protections." He then goes on to illustrate this
point by stating that
49. The impugned legislation, Mr. Stead believes, allows the Crown to submit certificates as evidence to prove all the essential elements of the offence of speeding. Pursuant to s. 24 of the Interpretation Act R.S.B.C. 1996, c.238, in the absence of the accused leading evidence to the contrary, the Crown must be presumed to have proven its case beyond a reasonable doubt. This mandatory presumption requires the Court to convict the accused even if reasonable doubt exists and imposes an evidentiary burden on the accused.
50. As my learned colleague His Worship Rivett noted in Evans, the Certificates are printed on standard forms and contain bald assertions of fact without information upon which the facts are based and without any viva voce evidence to determine the reliability or trustworthiness of the evidence. Despite these limitations, the legislation requires the Court to accept the Certificate evidence as proof of the facts contained in them and to convict an accused on the basis of that evidence.
51. Mr. Stead states that
53. Section 253 of Criminal Code, makes it an offence for a person to operate a vehicle, vessel, operate or assist in the operation of an aircraft, railway equipment or have care and control of a motor vehicle, vessel, aircraft or railway equipment, if that persons ability to do so is impaired by alcohol or drug or if that person has a concentration of alcohol in thc blood exceeding 80 mgs. of alcohol in 100 mls. of blood.
54. Section 254 prescribes various devices and identifies these as the approved devices for receiving and screening of blood samples and for receiving and analysing breath sample of a person to ascertain the presence and to measure the concentration of alcohol in a person's blood.
55. A peace officer having reasonable suspicion that a person operating or having care and control of a motor vehicle may make a demand of that person to provide breath sample for measurement and analysis of the concentration of alcohol in his blood. As a general rule the Certificate of Analysis contains evidence of the concentration of alcohol in an accused's blood obtained through measurement of his breath samples obtained at least two different times using prescribed device as well as identifying reagent lot of the chemicals used. Section 258(1)(c)(ii) stipulates that first breath sample is taken within two hours after the offence was allegedly committed and each subsequent sample was obtained in time intervals of no less than 15 minutes.
56. Several protections are built into the breathalyser law. It is only after all evidentiary requirements are met by the Crown pursuant to ss. 254 and 258 that certificates are presented as evidence and are presumed to contain prima facie proof of facts adduced therein in the absence of the evidence to the contrary. This is a rigorous process that has past the tests of the Bill of Rights and now of the Charter. For example, s. 258(1)(c)(i) of Criminal Code stipulates that each time a breath sample is taken the person taking such sample offer to the accused a specimen of that sample in an approved container for his own use. If a blood sample is taken s. 258(1)(d)(i) stipulates that one of the samples taken be retained for the accused to "permit an analysis thereof to be made by or on behalf of the accused." Or a judge on a summary application made by an accused within six months can order release of the accused's blood sample for the purpose of an examination or analysis thereof. Provision of such protection is consistent with the rights of the accused to be presumed innocent and to make full answer and defence. The purpose of such protections is obviously to provide the accused means to make full answer and defence. It is compatible with the underlying principle of procedural fairness by bringing within the reach of an accused both the presumed fact and the information to rebut that fact. The current state of the breathalyser law is arrived at through a rigorous legislative and judicial evolutionary process. Cases such as St. Pierre, supra, have rendered clarity and precision to and brought procedural fairness to the accused facing a charge of driving while impaired. Mr. Stead considers these factors crucial in upholding legislation that creates mandatory presumptions. On these grounds alone, I respectfully distinguish the eases cited by the Crown in paragraph 45 above.
57. Are similar protections available to the owners of motor vehicles charged with the offence of contravening speed regulations where the Crown's case is invariably almost entirety consisted of certificate evidence and where almost all essential elements of a speeding charge are proven by the sole use of a prescribed device?
58. In the case of photo-radar, evidence of speeding is obtained
through the use of "Auto Patrol Speed Camera Model PR100", a device prescribed
pursuant to s. 83.1(8) of the MVA. At the trial, counsel for the
Crown presents three certificates as evidence, and that, subject to any
leave being granted to cross examine a qualified operator or an enforcement
officer, is customarily the Crown's case. Pursuant to s. 24 of the Interpretation
Act the facts adduced on a certificate are in the absence of evidence
to the contrary established facts. Mr. Stead contends that the current
wording of ss. 83.1 and 83.2 of the MVA renders defence against
speeding charge truly illusory. The court is R. v. Mongentaler, Smoling
and Scott (1988), 37 C.C.C. (3d) 449, emphasised that of the basic
tenet of our criminal justice system is that when Parliament creates a
defence to a criminal charge the defence should not be illusory or so difficult
to attain as to be practically illusory. The defendant states that
60. St. Pierre, supra, further clarified the distinction between two presumptions in the Criminal Code (a) accuracy of test results expressed on the analyst's certificate pursuant to s. 258(1)(g) and (b) identity of time when tests performed and the time of the commission of the alleged offence pursuant to s. 258(1)(c). A trier of fact must view both these presumptions disjunctively. This is a rigorous process.
61. The photo radar scheme is deficient vis-à-vis procedural protections and safeguards as in s. 258 of the Criminal Code.
62. An earlier publication of the British
Columbia Law Reform Commission - Report on Vicarious Liability Under
the Motor Vehicle Act. June 1989,4
identify purpose of the MVA:
64. The enumerated measures contained in s. 25 of the MVA provide qualifiers for fundamental justice in the context of driving being a Charter-protected right. That is, if a person's ability to drive is impaired due incompetence indicated by (a) drug or alcohol consumption, or (b) physical factors such as age, health etc. or skill-factors such as recurring pattern of disregard for motor vehicle laws or accidents, or due to problems or gaps in currency when a person has been a recipient of all procedural benefits, deprivation of that persons right to drive would likely be saved by s. 1 of the Charter.
65. Similarly, an owner of a vehicle pursuant to s. 3 of the MVA is entitled to have a vehicle registered upon completion of the applicable form, payment of fees and insurance premiums.
66. The enumerated measures contained in s. 3 of the MVA provide the qualifiers for fundamental justice in the context. Non-compliance of any conditions set out in this section would be the sufficient grounds to refuse registration of a vehicle.
67. Section 26(1)(c), however, stipulates that in case of the
outstanding motor vehicle fines, ICBC may without any hearing refuse renewal
of driver's licence or motor vehicle registration. When such indebtedness
is due to vicarious liability pursuant to s. 83.1(2) of the MVA,
the sanction of refusal to renew drivers licence is manifestly perverse.
That is, a person's right to drive is proscribed due to civil liability
and not due to any of the enumerated factors such as incompetence. In Sengara,
supra, the court held that
70. The increasing complexity of life in a post-industrial democratic society such as ours has driven the perennial need for regulation. In Wholesale Travel, supra, Mr. Justice Coty wrote, "It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare." He went on to emphasising that regulatory schemes and the concomitant role of government must not be tampered with through the application of inflexible standards.
71. I am also mindful of the very wise words of Mr. Justice Dickson
in Amax Potash Ltd. v. Government of Saskatchewan, (1977) 2 S.C.R.
576, at p. 590, that
73. Oakes, supra, focuses on two central criteria. Firstly,
the objective of an impugned provision must be of "sufficient importance
to warrant overriding a constitutionally protected right... the objective
must be pressing and substantial in a free and democratic society before
it can be characterized as sufficiently important."6
Secondly, the means chosen to limit the right are reasonable and demonstrably
justified. Regarding the second step, the court prescribed a "proportionality
test" consisting of three components on pages 139-40 (S.C.R).
76. Once a driver's licence is issued it becomes a right subject to the meaning of liberty in s. 7. A person cannot be deprived of this right except in accordance with the principles of fundamental justice.
77. The aggregate procedure contained in ss. 83.1 and 83.2 consisting of (a) vicarious liability for speed related offences, (b) evidence gathered through the use of prescribed device and (c) adducing all relevant facts on certificates creates a reverse onus situation and violates a person's right to be presumed innocent contrary to s.11(d) of the Charter.
78. The protections available to those charged with driving while impaired contrary to s. 253 of the Criminal Code are not available to the accuseds facing a photo-radar charge. Section 26(1)(c) of the MVA when applied to liability pursuant to s. 83.1(2) of the MVA, violates s. 7 of the Charter. The impugned provision proscribes a person's right to drive -- a protected liberty. The reasons for such proscription are not in accordance with the principles of fundamental justice as qualified through enumerated criteria for obtaining a driver's licence in s. 25 of the MVA.
79. Public has the right to be protected from "bad drivers" not "dead-beat drivers". This distinction, in my respectful opinion, is crucial. For example, a person with financial means who is vicariously liable for speeding offences may choose to simply speed and pay the fine amount while considering it as some sort of "luxury tax" for the "privilege of speeding" in stark disregard of the motor vehicle laws. Because there is no record kept of any photo-radar convictions, the person would continue to drive at illegal speeds with impunity. Whereas persons of rather modest means in similar circumstances will likely lose their licence for non-payment of fine potentially on a single conviction when this conviction is for speeding offences where minimum fine is specified, a "poor owner but good driver" will likely suffer deprivation of their right to drive.
80. [struck out]
81. In the case at bar, the Crown has failed the litmus test of Oakes, supra. Consequently, the impairment of rights is not saved by s. 1 of the Charter. No evidence, empirical or even polemical, was adduced to prove that
1 Paragraphs 1, 2 3 and 6 are from the
defence document "Statement of Agreed Facts" presented on 10 March 1998;
paragraphs 4 and 5 were amended and agreed to by both parties at the hearing.
2 "Outline of Submissions" 10 March 1998, p. 2.
3 Quoted in Bertrand Russell (1946). A History of Western Philosophy. (London: Unwin), at, p. 670.
4 (Downloaded from the URL: http://www.lawreform.gov.bc.ca/lrc106.htm)
5 John Sopinka, Sidney N. Lederman and Alan W. Bryant (1992). The Law of Evidence in Canada, (Toronto: Butterworths), at 124.
6 Ibib, at 124.