R. v. Tri-M Systems Inc. 

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Mr. N. Jensen
Counsel for the Crown

Mr. D. Stead
Agent for the Defendant

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Statutes and Regulations Referred to:

Canadian Charter of Rights and Freedoms
     ss. 1,7, 11(d), 24(1)
Constitutional Question Act R.S.B.C. 1996, c.68
     s. 8
The Criminal Code R.S.C. 1985, c. C-46
     ss. 253-258
Interpretation Act, R.S.B.C. 1996, c.238
     s.24
Motor Vehicle Act R.S.B.C. 1996, c.318
     ss. 3, 25, 26(1)(c), 82, 83.1, 83.2
Motor Vehicle Act Regulations B.C. Reg. 26/58
     ss. 41.01, 41.02; Division 23 and Schedules

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INTRODUCTION

1. Tri-M Systems Inc., a corporate defendant, pursuant to s. 83.1(2) of the Motor Vehicle Act R.S.B.C. 1996, c.318 (hereinafter the "MVA") stands vicariously liable for the offence of speeding as alleged on a violation ticket that
 
An Enforcement Officer says that he/she has reasonable and probable grounds to believe and does believe that on 12 October 1996, at or near New Westminster, in the Province of British Columbia, a motor vehicle that bore B.C. license plate number EKD740 was recorded speeding contrary to s.151(1), as it then was, of the Motor Vehicle Act and pursuant to s.76.1 of the same Act Tri-M. Systems Inc. are liable as the owner of the vehicle for the commission of the offence of speeding in municipality.
 
2. This matter was brought before me on 30 April 1997, at that time Mr. Doug Stead, President of the Tri-M. Systems Inc. appeared as an agent for the defendant. A counsel, Mr. Walker, appeared for the Crown. Subsequent to making a not guilty plea, Mr. Stead raised a constitutional question and made a motion to dismiss the charges against his company. The matter was adjourned to allow Mr. Stead time to comply with the requirements set out in s.8 of the Constitutional Question Act R.S.B.C. 1996, c.63.

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FACTS

Briefly stated, the form of the case at Bar is as follows:

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:

a. A declaration that s.83.1 and 83.2 (formerly s.76.1 and 76.2) of the MVA, in combination with s. 146(1) and s.26 of the MVA violate s.7 and s. 11(d) of the Canadian Charter of Rights and Freedoms (the "Charter")'
b. A declaration that s.83.1 and 83.2 of the MVA are of no force or effect;
c. A ruling that the Accused is not guilty of the offence of speeding in a Municipality as alleged in Violation Ticket SA300391011; alternatively
b) A stay of proceedings against the Accused.
 
4. The Crown took no issue vis-à-vis the standing of the corporate defendant to bring a constitutional challenge. Consequently, analysis to determine whether a corporate defendant is entitled to the constitutional remedies sought is moot.

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

1. Douglas Stead, representative for the accused, received the following documents for Violation Ticket SA00391011
a) a copy of Violation Ticket SA00391011;
b) a copy of Registered Owner's Offence Image;
c) a copy of Certificate of Enforcement Officer Photographic Evidence executed by Paul Ronto;
d) a copy of Photographic Radar Program Vehicle Image;
e) a certified copy of Certificate of Enforcement Officer Qualified Operator executed by Bernie Schutz; and
f) a copy of Vehicle Ownership Licensing Information Certificate of an Enforcement Officer of the Insurance Corporation of British Columbia.
2. The specified penalty for violation of s. 151 of the MVA in this case is a $100 fine.
3. Photographic radar is not being used in all communities in British Columbia.
4. Since the introduction of photographic radar in 1996, some municipalities passed motions attempting to opt out of the use of photographic radar devices to enforce speeding offences in their jurisdiction.
5. Photographic radar is not being used in the Municipality of Surrey.
6. Other methods of speed enforcement other than a photographic radar device continue to be used in British Columbia to enforce speeding offences under the Motor Vehicle Act.¹

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ISSUES

7. The defendant asks this court to answer the following questions:
1. Do sections 83.1 and 83.2 in combination with s. 26 and s. 151(1) (now s.146(1) of the MVA in whole or in part violate s. 7 and s. 11(d) of the Charter?
2. If these provisions do violate s. 7 and/or 11(d) of the Charter, can they be saved under s. 1 of the Charter?
 
8. The impugned sections are being challenged on the following grounds.
1.  The provisions violate s. 7 and the requirements for a fair hearing under s. 11(d) by:
(a) creating different burdens of proof and procedural protections for the same offence of speeding which amount to unfair and arbitrary procedures;
(b) depriving the accused of the right to be presumed innocent until proven guilty;
(c) potentially depriving the accused of the right to make full answer and defence
2. The provisions violate s. 11(d) of the Charter by:
(a) relieving the Crown of the burden of proving all of the essential elements of the offence of speeding;
(b) creating a mandatory presumption of the truth of the facts set out in the Certificates which, in the absence of evidence to the contrary being led by the accused, requires the trier of fact to make a guilty finding even if the Certificate evidence raises a reasonable doubt in the mind of the trier of fact; and
(c) imposing an evidentiary burden on the accused to lead evidence contrary to the Crown's presumed facts for all elements of the offence.²

 
9. Mr. Stead further submits that the provisions cannot be saved under s. 1 of the Charter.

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STATUTORY FRAME OF REFERENCE

10. Section 3 of the MVA establishes a licensing regime for the registration of vehicles in British Columbia. Briefly, this section stipulates that prior to being operated on highways in British Columbia, an owner must register, obtain a licence and insurance for the vehicle from the Insurance Corporation of British Columbia (ICBC). The ICBC must register a vehicle or trailer if all of the following three conditions are met: (a) its satisfied that the form for registration and licensing is complete and contains accurate information (b) registration fee is paid; and, (c) insurance premiums are paid.

11.  Section 25 establishes a licensing scheme. Subsection 7 reads as follows
 

(7) On receipt, in the respective forms required under subsection (1), of the application and the evaluation, and on being satisfied of the truth of the facts stated in the application, and that the prescribed fees and insurance premium have been paid, and, subject to subsection (9), on being satisfied as to the driving experience. driving skills, qualifications, fitness and ability of the applicant to drive and operate motor vehicles of the relevant category, the corporation must cause to be issued to the applicant a numbered driver's license in the form established by the corporation authorizing the applicant to drive or operate a motor vehicle of the category designated for the class of license applied for and a certificate of insurance.
 
12. Section 26 provides the grounds to refuse renewal of an individual's driving licence. Subsection 1(b) stipulates that in the event of outstanding fines, the ICBC may without any hearing refuse to renew/issue a driver's licence to a person in default.

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:
 

83.1(2) The owner of a motor vehicle is liable for the contravention of section 140, 146 (1), (3), (5) or (7), 147 or 148 if the evidence of such contravention has been gathered through the use of a prescribed speed monitoring device.
 
14. Section 83.1(1) defines "speed monitoring device" to be a photographic radar device.

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.

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ANALYSIS and FINDINGS

21. The first question that the defendant wants answered is: Do sections 83.1 and 83.2 in combination with s. 26 and s. 151(1) (now s. 146(1) of the MVA in whole or in part violate s. 7 and s. 11(d) of the Charter?

22. The above question raises two issues:

(a) Is driving a right protected by s. 7 of the Charter? And
(b) Is the presumption of innocence, a right enshrined in s. 11(d) of the Charter, subverted, offended or otherwise compromised in the framework designed to prosecute vicarious liability matters created pursuant to s. 83.1(2) of the MVA?
  ISSUE 1 Is driving a right protected by s. 7 of the Charter?

23. Section 7 of the Charter reads as follows:
 

Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 
24. In his written and viva voce submissions, Mr. Stead contends that driving is a Charter protected liberty, see R. v. Robson (1985), 45 C.R. (3d) 68 (B.C.C.A.) and R. v. Sengara (1988), 26 B.C.L.R. (2d) 71 (B.C.S.C.).

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
 

An individual has right to move about within Canada and physical interference with that right may be in violation of s. 7. However, the right to move about does not, in my opinion, carry with it the constitutional right to a particular mode of movement.
 
28. Melvin J. distinguished Robson, supra, on the grounds that Dedman, supra, was not referred to as well as the subsequent decisions such Neale, supra, or R. v. Ladouceur (1990) 56 C.C.C. (3d) 22, have held that driving is not a Charter-protected right. A recent Ontario case Horsefield v. Ontario (The Registrar of Motor Vehicles) [1997] O.J. No. 3183 was also not followed in Buhlers, supra, on the grounds that the said decision was "not supported by the weight of judicial authority in this country."

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
 

... when deciding whether a law contravenes s. 7, one must examine the impugned legislation to ascertain whether it, viewed in a purposive manner, meets the fundamental precepts reflected in our system of justice.
 
30. In R. v. Big M Drug Mart Ltd. (1985) 1 S.C.R. 295, 3 W.W.R. 48, 18 D.L.R. (4th) 321, Dickson J. wrote at p. 344:
 
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.
 
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. (Emphasis added)
 
31. In a free and democratic society such as ours, freedom from captivity or freedom of expression cannot be the sole indicators of liberty. Such an approach would be reductionism characterised by superficiality and narrowness. The social contract that binds us all together is dynamic not static. It is within the meaning of this social contract that we find articulation and expression of our rights and obligations, freedoms and constraints. Even in 1762 A.D. when Rousseau published his Social Contract he recognised that the "...sovereign cannot impose upon its subjects any fetters that are useless to the community, nor can it even wish to do so."³

32. In R. v. Wholesale Travel [[1991] 3 S.C.R. 154] Madame Justice L'Heureux-Dube and Mr. Justice Cory have articulated that
 

The Charter is to be interpreted in light of the context in which the claim arises. The rights asserted by the appellant must be considered in light of the regulatory context, acknowledging that a Charter right might have different scope and implications in a regulatory context than in a truly criminal one. Under this contextual approach, constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences. Rather, the content of the Charter right must be determined only after an examination of all relevant factors and in light of the essential differences between the two classes of prohibited activity. The appellant's claim must also be considered and weighed in light of the realities of a modern industrial society, where the regulation of innumerable activities is essential for the benefit of all. It is vital that the fundamentally important role of regulatory legislation in the protection of individuals and groups in Canadian society today be recognized and accepted. (Emphasis added)
 
33. The circulation needs of a person living, working or doing business in a modern industrialized society are complex indeed. Geography of British Columbia is another factor adding on to this complexity. Mr. Justice Esson writing a separate decision in Robson, supra, held that a deprivation of liberty to drive "in winter and in less heavily populated areas of this province ... will effectively preclude movement."

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
 

It is "liberty" the interference with which is severely restricted... A liberty is a liberty whether it be designated a "fundamental" liberty or "not a fundamental" liberty. Section 7 of the Charter of Rights and Freedoms does not distinguish between "liberty". It protects all "liberty." The nature of the liberty, fundamental or not, important or not, will be significant in deciding what the criteria will be that fundamental justice will require before that liberty can be taken away.
 
35. In Robson, supra, the late Chief Justice Nemetz ruled that
"Liberty" under the Charter cannot be taken to create an absolute right to drive. Age, infirmity and other impediments may restrict the granting of drivers' licenses. However, once the license is granted there becomes attached to it the general liberty to employ one's skill and ability -- in this case the ability to drive. Accordingly, such liberty constitutes right under the Charter and a person cannot be deprived of it except in accordance with the principles of fundamental justice.
36. I respectfully agree with the court in Horsefield, supra, that
 
There is nothing in Dedman case that supports the proposition that the right to drive with a valid license is not a "liberty" within s. 7. Dedman holds that the police can randomly stop a motorist for a short duration without acting unlawfully. It does not say that the state can take away the motorist's license and right to drive arbitrarily or otherwise than in accordance with the applicable rules of fundamental justice.
 
37. Following Robson, supra, Sengara supra, and Horsefield supra, my respectful answer to the defendant's question is affirmative.   ISSUE 2 Constitutionality of ss. 83.1 and 83.2 in conjunction with s. 26 of the MVA.

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,
 

... it is the opportunity to cross-examine and not the fact of cross-examination which is crucial if the accused is to be treated fairly.
 
The defendant has a right pursuant to s. 83.2(4) of the MVA to seek leave of the court to require attendance of an enforcement officer or a qualified operator named on certificates entered as evidence. While I agree with my colleague His Worship Rivett that such leave "would not be capriciously withheld" Evans, supra, the fact remains that the defendant would have to come to the court another time. However, I do not believe that this inconvenience is of such nature that the rights of an individual are breached. One's quest for justice may at times be somewhat inconvenient but it is a noble pursuit. Hence my respectful disagreement with Mr. Stead on this point.

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
 

The principles of fundamental justice are to be found in the basic tenets and principles not only of our judicial process but also of the other components of our legal system. These principles are not limited to procedural guarantees, although many are of that nature. Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 must rest on an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our evolving legal system. The words "principles of fundamental justice", therefore, cannot be given any exhaustive content or simple enumerative definition but will take on concrete meaning as the courts address alleged violations of s. 7.
 
42. It follows that the principles of fundamental justice need to be expressed, qualified and articulated in a contextual manner -- where the context is balancing the State's interest in mediating and regulating the conduct and organisation of life in a civil society and an individual's interest of enjoying benefits and protection of law. Indeed in Robson, supra, the Esson J.A. writes that
 
In holding that there was no deprivation of liberty, MacAlpine Prov. J construed liberty as freedom from captivity. That is proper and well-recognized definition of the word, but I do not think that, in the context of the Charter, it should be construed so narrowly.
 
43. The MVA is regulatory in character; it creates a significant number of absolute and strict liability offences. Such offences, according to Madam Justice L'Heureux-Dube and Mr. Justice Cory in Wholesale Travel, supra, do not "focus on dishonesty but rather on the harmful consequences of otherwise lawful conduct."

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
 

Offences in which 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.
 
45. The liability pursuant to s. 83.1(2) of the MVA is, on the one hand, strict and on the other absolute. In the first instance, for example. s. 83.1(3)(b) provides for the defence of due diligence if a defendant establishes that he/she took all reasonable steps to ensure that a person on whom the care and control of the vehicle was entrusted would not offend. Subsection 4 provides a safeguard against imprisonment. Other than that, I believe that the liability is absolute.

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
 

The effect of s. 83.1 and 83.2 of the MVA is to create different procedural rights and protections in the prosecution of the same offence of speeding depending solely on the mechanism used to obtain the alleged evidence of the offence.
 
48. The counsel for the Crown contends, on the authority of R. v. Russell (1971), 4 C.C.C. (2d) 494; and R. v. Duncan (1984), Unreported, British Columbia Court of Appeal, Vancouver Registry CA001477, R. v. Crosthwait (1980) 52 C.C.C. (2d) 129, R. v. St. Pierre (1995) 96 C.C.C. (3d) 385, that the use of prescribed devices or adducing facts on certificates do not violate a persons right to be presumed innocent. Mr. Jensen states that a scheme analogous to the photo radar scheme is the one contained in ss. 253-258 of the Criminal Code. Cases referred in this paragraph deal with the Criminal Code offence of operating a motor vehicle while impaired. The Crown's argument turns on the proposition that since imprisonment is not a possibility, the procedural "short cuts" do not constitute impairment of any Charter right.

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
 

... where an accused is charged with speeding under s. 151(1) and a radar device other than photo radar is used, the Crown is not relieved of meeting its burden and it must prove the actus reus of the offence beyond a reasonable doubt through in court testimony. The Court and the Accused have the opportunity to hear and assess the evidence of the enforcement officer. The Accused has an opportunity to test the credibility, reliability and accuracy of that evidence through cross-examination. The trier of fact is then able to make a determination of whether the Crown has proven that the accused is guilty of the offence of speeding beyond a reasonable doubt.
 
52. The threshold issue to be examined is whether the presumptions in the driving-while-impaired scheme of the Criminal Code can be extrapolated to the photo-radar scheme.

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
 

Photo radar legislation is distinguishable in that it permits the entirety of the Crown's case to be proven by Certificate evidence -- it is not specified facts but every element of the offence. That difference represents a fundamental distinction that is not addressed by any of the Crown's authorities. The legislation does not simply assist the Crown in proving one fact -- it relieves the Crown of the burden of proving any evidence through in court testimony.
 
59. I realise that presentation of an in-court testimony is not a fundamental right. The fact that convictions in the cases involving the use of breathalyser are not entirely a function of certificate of an analyst procedural fairness weighs heavily in favour of the in court testimony. An analysts certificate is a part of the overall case for the Crown.

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:
 

The Motor Vehicle Act has two primary goals. The first is to reduce the frequency of road accidents. To do this, for example, the Act provides a scheme of driver licensing to ensure that persons who operate motor vehicles meet certain minimum standards. The Act also sets out a number of rules of the road which prescribe standards of conduct in relation to driving practice. The driver who does not observe these standards may be prosecuted for an offence under the Act.
 
63. Section 25 of the MVA, creates a licensing scheme. This scheme entitles a person to a drivers' licence based upon the dual criteria of (a) competency measured by age, physical ability, skill and knowledge; and, (b) currency measured by accurate completion of a form, periodic renewal as well as payment of the licensing fee.

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
 

The right to drive is not an absolute right and the granting of a license is subject to regulation. However, once a license has been issued, the right to drive is protected under s. 7 of the Charter and cannot be taken away except in accordance with the principles of fundamental justice.
 
68. 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, this 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. In Ref, re sec. 94, supra, Lamer J. writes
 
I do not take issue with the fact that it is highly desirable that "bad drivers" be kept off the road. I do not take issue either with the desirability of punishing severely bad drivers who are in contempt of prohibitions against driving. The bottom line of the question to be addressed here is: whether the Government of British Columbia has demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of British Columbia of bad drivers, a reasonable limit in a free and democratic society.
 
69. 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 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. This provision proscribes a person's right to drive -- a protected liberty right. The reasons for such proscription are not in accordance with the principles of fundamental justice as qualified through enumerated criteria for obtaining drivers' licence in s. 25 of the MVA. The aggregate procedure consisting of (a) evidence gathered through the use of prescribed device and (b) 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. The application of s. 26(1)(c) in this context offends a person's liberty right guaranteed by s. 7 of the Charter. Is this deprivation a reasonable limit "demonstrably justified in a fair and democratic society" hence saved by s. 1 of the Charter?
  ISSUE 3 Since the impugned provisions do impair certain rights protected under s. 7 and/or 11(d) of the Charter are these limitations reasonable and demonstrably justified in a free and democratic society hence saved by s. 1?

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
 

The Courts will not question the wisdom of enactments ... but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power."
 
72. R. v. Oakes (1986) 1 S.C.R. 103, 50 C.R. (3d) 1, 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 206, prescribes a two stage test to determine "whether a section that contravenes section 11(d) is nonetheless constitutional because the limit is reasonable and demonstrably justified in a fair and democratic sociecy."⁵

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).
 

First, the measure adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance ... The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and justified in a free and democratic society.
 
74. The burden of proving that an impairment of right is "reasonable and justified" is, in this case, on the Crown. A common-sense inference can be made that ensuring safe use of highways is the main purpose of the MVA. Whether or not this safety can be achieved through enforcement of vicarious liability for speeding offences is yet to be proven. In the case at bar the Crown did not adduce any evidence, empirical or even polemical, to demonstrate the following:
a) The goal of making the highway use safe for all users can be achieved by holding the owners of the vehicle responsible. And when these owners do not pay their fines, regardless of reasons, refusal to renew their driving licence or vehicle registration without any hearing would produce good drivers.
b) Refusal to renew drivers license of a person (who has not paid fine as a result of speeding offence vicarious liability) has made travel on the highways any safer.
c) A correlation between the speeding and safety. Whether owner liability is a factor in measuring this correlation.
d) Section 83.1(2) of the MVA has caused the drivers to slow down thus achieving the objective of reducing speeds on highways.
e) The ICBC's right to refuse renewal of driver's license as a result of non-payment of fines for vicarious liability will necessarily rid our highways of bad drivers.

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Summary:

75. The right to liberty guaranteed in s. 7 of the Charter must be examined contextually and purposively. In a free and democratic society such as ours, freedom from captivity or freedom of expression cannot be the sole indicators of liberty. Such an approach would be reductionism characterised by superficiality and narrowness.

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

a) The goal of making the highway-use safe for all users can be achieved by holding the owners of the vehicle responsible. And when these owners do not pay their fines, regardless of reasons, refusal to renew their driving licence or vehicle registration without any hearing would produce good drivers.
b) Refusal to renew drivers license of a person (who has not paid fine as a result of speeding offence vicarious liability) has made travel on the highways any safer.
c) A correlation between the speeding and safety. Whether owner liability is a factor in measuring this correlation.
d) Section 83.1(2) of the MVA has caused the drivers to slow down thus achieving the objective of reducing speeds on highways
e) The ICBC's right to refuse renewal of driver's license as a result of non-payment of fines for vicarious liability will necessarily rid our highways of bad drivers.
 
82. The defendant, although a corporation is entitled to appropriate remedy pursuant to s. 24(1) of the Charter. A stay of proceedings is therefore ordered.
 
[signed]
Zahid Makhdoom, Sitting Justice
 

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.
 

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APPENDIX I - Relevant Statutory Provisions

Interpretation Act R.S.B.C. 1996, c. 238.

Documentary evidence
24 If an enactment provides that a document is evidence or proof of a fact, unless the context indicates that the document is conclusive evidence, the document is admissible in evidence in any proceeding, and the fact is deemed to be establised in the absence of any evidence to the contrary.

Motor Vehicle Act R.S.B.C. 1996, c. 318.

Registration and licence

3 (1) Except as otherwise provided in this Act, the owner of a motor vehicle or trailer must, before it is used or operated on a highway,

(a) register the motor vehicle or trailer with the Insurance Corporation of British Columbia,
(b) obtain a licence for its operation under this section, and
(c) obtain for it a certificate of insurance under the Insurance (Motor Vehicle) Act.

(2) Despite subsection (1), a trailer towed by a tractor licensed under section 8 need not be licensed.
(3) The owner must apply for

(a) registration and licence in the form required by the Insurance Corporation of British Columbia, and
(b) a motor vehicle liability policy in accordance with the Insurance (Motor Vehicle) Act and regulations under that Act.

(4) The form of motor vehicle liability policy referred to in subsection (3) (b) must be signed by the owner and delivered to the Insurance Corporation of British Columbia, a government agent or a person authorized in writing by the corporation for the purposes of this section, together with the prescribed fees, the insurance premium prescribed under the Insurance (Motor Vehicle) Act and the amount of tax owing in respect of the motor vehicle under the Social Service Tax Act.
(5) For the purpose of every section of this Act requiring a person to obtain an insurance certificate or pay an insurance premium,

(a) a government agent, or
(b) a person authorized in writing by the Insurance Corporation of British Columbia

may act as an agent of the Insurance Corporation of British Columbia for the purposes of the Insurance (Motor Vehicle) Act, despite section 16 of that Act; but a government agent or a person so authorized is not considered to be an insurance agent or insurance salesperson under the Financial Institutions Act and is not required to be licensed under that Act.

(6) For the purpose of every section requiring a person to obtain a licence or permit for a motor vehicle or to drive and operate a motor vehicle, an agent of the Insurance Corporation of British Columbia, appointed under section 16 of the Insurance (Motor Vehicle) Act, is deemed to be a person authorized in writing by the corporation.
(7) On receiving the application in the form required by the Insurance Corporation of British Columbia, and on being satisfied of the truth of the facts stated in the application, and that the prescribed fees and insurance premium have been paid, the corporation must cause the name and address of the owner and a description of the motor vehicle or trailer to be registered in a file or index to be kept for that purpose, and must cause the following to be issued to the owner:

(a) a numbered licence in the form established by the corporation, showing registration of the motor vehicle or trailer and authorizing its use and operation in accordance with this Act;
(b) one distinctive number plate in the case of a motorcycle or trailer, and 2 distinctive number plates in the case of a motor vehicle other than a motorcycle;
(c) a certificate of insurance and motor vehicle liability insurance card.

(8) Fees are not payable for the registration or licensing of a motor vehicle or trailer owned or used by a person who, through active service in the Armed Forces of the Crown in a war has lost a limb or is receiving a 100% disability pension, but the exemption granted by this subsection does not extend to the concurrent registration or licensing of more than one motor vehicle and one trailer for the same person, or to the insurance premium payable under subsection (4).
(9) On an application for the registration and licensing of a motor vehicle imported into British Columbia that has been registered or licensed at a place outside British Columbia, the Insurance Corporation of British Columbia may, as a condition of issuing the licence, require the applicant to deliver to the corporation the existing licence or certificate of registration and the current number plates issued for the motor vehicle outside British Columbia, to be retained by the corporation while the motor vehicle is used or operated in British Columbia.
(10) The Insurance Corporation of British Columbia may refuse to issue a licence for the operation of a motor vehicle or trailer if

(a) any fee or part of a fee for a previous licence issued under this Act for the motor vehicle or trailer is unpaid,
(b) any insurance premium or part of it for a previous motor vehicle liability policy is unpaid, or
(c) any amount in respect of the motor vehicle under the Social Service Tax Act is not paid to the corporation.


 
Application for licence

25 (1) The applicant for a driver's licence and for a driver's certificate must sign an application in the form required by the Insurance Corporation of British Columbia, complete an evaluation in the form required by the superintendent and deliver the application and the completed evaluation form to

(a) the corporation,
(b) a government agent, or
(c) a person authorized in writing by the corporation for the purposes of this section,

accompanied by the payment of the prescribed fee and insurance premium for the driver's certificate.

(2) For the purposes of subsection (1) the Insurance Corporation of British Columbia and its employees are authorized to receive the evaluations and deal with them in accordance with the superintendent's instructions.
(2.1) For the purposes of making an application for a driver's licence under subsection (1), the Insurance Corporation of British Columbia may require the applicant for a driver's licence and for a driver's certificate to provide information and a signature in person, and in that event

(a) the corporation must enter the information electronically into a database for storage,
(b) the corporation must reproduce the information that has been stored in the database in a record that is in paper format and must give that paper record to the applicant to verify the accuracy of the entered information,
(c) if the applicant is satisfied that the information in the record is accurate, the applicant must

(i) sign the paper record, and
(ii) supply a signature by a means required by the corporation that allows the corporation to store the signature electronically in a database,

(d) a signature provided under paragraph (c) is evidence that the applicant who provided the signature also provided the information that is stored under paragraph (a), and
(e) a signature stored under this section may be used only

(i) as evidence under paragraph (d),
(ii) for the purpose of applying it to the driver's licence of the applicant, and
(iii) to compare signatures under sections 90.4 (3) and 95 (3).

(3) For the purpose of determining an applicant's fitness and ability to drive or operate any category of motor vehicles, the applicant must

(a) submit to one or more, as the Insurance Corporation of British Columbia may specify, of the following: a knowledge test; a road test; a road signs and signals test,
(b) submit to one or more, as the superintendent may specify, of the following: a vision test; medical examinations; other examinations or tests, other than as set out in paragraph (a),
(c) provide the superintendent with other information he or she considers necessary to allow the superintendent to carry out his or her powers, duties and functions,
(d) submit to having his or her picture taken, and
(e) if required by or on behalf of the corporation, identify himself or herself to the corporation's satisfaction.

(4) If the applicant for a driver's licence has at any time before making the application held a driver's licence issued under this Act or in another jurisdiction, the applicant must with the application surrender the last driver's licence or duplicate of it held by him or her, unless the Insurance Corporation of British Columbia on cause shown to the corporation's satisfaction dispenses with its production.
(5) At the same time that he or she has a driver's licence issued under this Act, a person must not have a driver's licence issued by another jurisdiction or have another driver's licence previously issued under this Act.
(6) An applicant for a driver's licence who when requested to do so fails to demonstrate his or her ability to read and understand warning and other road signs and signals in use on a highway to the satisfaction of the Insurance Corporation of British Columbia must not be granted a licence under this Act.
(7) On receipt, in the respective forms required under subsection (1), of the application and the evaluation, and on being satisfied of the truth of the facts stated in the application, and that the prescribed fees and insurance premium have been paid, and, subject to subsection (9) on being satisfied as to the fitness and ability of the applicant to drive and operate motor vehicles of the relevant category, the corporation must cause to be issued to the applicant a numbered driver's licence in the form established by the corporation authorizing the applicant to drive or operate a motor vehicle of the category designated for the class of licence applied for and a certificate of insurance.
(8) The Lieutenant Governor in Council may make regulations respecting the issuance of a driver's licence to a person who is learning to drive, and prescribing

(a) the circumstances in which the corporation may exercise the corporation's discretion to issue the licence,
(b) the duration of the licence, and
(c) requirements additional to any restriction to which the licence is subject under subsection (10).

(9) In issuing any driver's licence or driver's certificate, the corporation, for those aspects of fitness and ability examined, tested or reviewed by the superintendent, must abide by the superintendent's instructions.
(10) For a driver's licence of any class of persons, the superintendent, by regulation with respect to a class of persons, may

(a) restrict the hours of the day and the days of the week during which a class of persons may drive a motor vehicle,
(b) restrict the area in which a class of persons may drive a motor vehicle,
(c) restrict the motor vehicle or class of motor vehicle that a class of persons may drive,
(d) restrict the number of passengers that the person may carry in a motor vehicle driven by the person, and
(e) impose other restrictions on or add any conditions to the driver's licence of a class of persons that the minister considers necessary for the operation of a motor vehicle by a member of that class.

(11) Conditions or restrictions prescribed by the superintendent under subsection (10) and requirements prescribed by the Lieutenant Governor in Council under subsection (8) in respect of a driver's licence are applicable to and are conclusively deemed to be part of the driver's licence, whether issued before or after the coming into force of the regulation prescribing the conditions, restrictions or requirements.
(12) Despite the regulations, the superintendent may require a statement in, endorsement on, or attachment to any person's driver's licence

(a) restricting the hours of the day and the days of the week during which the person may drive a motor vehicle,
(b) restricting the area in which the person may drive a motor vehicle,
(c) restricting the motor vehicle or class of motor vehicle that the person may drive,
(d) restricting the number of passengers that the person may carry in a motor vehicle driven by the person, and
(e) imposing other restrictions on or adding any conditions to the driver's licence of the person that the superintendent considers necessary for the operation of a motor vehicle by the person.

(13) The Insurance Corporation of British Columbia must ensure that a person's driver's licence reflects any restrictions and conditions imposed in respect of that licence by means of the appropriate statement in, endorsement on or attachment to that licence, in accordance with the requirements of the superintendent.
(14) Despite the regulations, the Insurance Corporation of British Columbia, by statement in, endorsement on, or attachment to any person's driver's licence, may, as a result of a knowledge test, a road test or a road signs and signals test,

(a) restrict the area in which the person may drive a motor vehicle,
(b) restrict the motor vehicle or class of motor vehicle that the person may drive,
(c) restrict the number of passengers that the person may carry in a motor vehicle driven by the person, and
(d) impose other restrictions on the driver's licence of the person that the corporation considers necessary for the operation of a motor vehicle by the person.

(15) A person who violates a requirement, restriction or condition prescribed under this section in respect of the person's driver's licence or who violates a restriction or condition stated in, endorsed on or attached to a driver's licence issued to the person under this section commits an offence.

 
Refusal to issue a licence, permit, etc.

26 (1) The Insurance Corporation of British Columbia may, without a hearing, refuse to issue a driver's licence to a person who

(a) has not, in the current or a preceding year, paid

(i) all insurance premiums required to be paid under the Insurance (Motor Vehicle) Act, or
(ii) the fee prescribed for the registration of a motor vehicle or trailer or for a licence or permit for a motor vehicle or trailer owned by the person or for a driver's licence,

(b) is indebted to the Insurance Corporation of British Columbia for reimbursement of money paid in respect of a claim,
(c) is indebted to the government because of his or her failure to pay a fine imposed as a result of a conviction under

(i) a motor vehicle related Criminal Code offence,
(ii) the Motor Vehicle Act,
(iii) the Commercial Transport Act,
(iv) the Motor Fuel Tax Act,
(v) the Highway Act,
(vi) the Motor Carrier Act,
(vii) the Motor Vehicle (All Terrain) Act, or
(viii) the regulations made under an Act referred to in subparagraphs (ii) to (vii), or

(d) is prohibited from driving a motor vehicle under this Act, the Young Offenders (British Columbia) Act, the Young Offenders Act (Canada) or the Criminal Code.

 
Liability of owner for speeding violations

83.1 (1) In this section:

"owner" includes

(a) a person in possession of a motor vehicle under a contract by which the person may become the owner on full compliance with the contract, and in whose name alone the motor vehicle is registered under this Act,
(b) a person who rents or leases a motor vehicle from another person, and
(c) a person who holds a licence under section 38, 41, 42 or 44;

"speed monitoring device" means a speed monitoring device prescribed under subsection (8) that is capable of photographing or capturing the image of a motor vehicle while accurately and simultaneously measuring and recording its speed.

(2) The owner of a motor vehicle is liable for the contravention of section 140, 146 (1), (3), (5) or (7), 147 or 148 (1) if evidence of the contravention was gathered through the use of a prescribed speed monitoring device.
(3) An owner is not liable under subsection (2) if the owner establishes that

(a) the person who was, at the time of the contravention, in possession of the motor vehicle was not entrusted by the owner with possession, or
(b) the owner exercised reasonable care and diligence in entrusting the motor vehicle to the person who was, at the time of the contravention, in possession of the motor vehicle.

(4) If an owner is liable under this section, in place of the fine or term of imprisonment specified in an enactment for the offence, a fine of not more than $2 000 may be imposed.
(5) On a prosecution of the owner of a motor vehicle for an offence under this section, the burden is on the defendant to prove that

(a) the person in possession of the motor vehicle was not a person entrusted by the owner with possession, or
(b) the registered owner is not the owner.

(6) No owner is liable under subsection (2) with respect to any offence if the driver has been convicted of

(a) the same offence, or
(b) an included offence

arising out of the same circumstances.

(7) [Not in Force -- see Supplement]
(8) The Lieutenant Governor in Council may prescribe a speed monitoring device for the purpose of subsection (2).
(9) Without limiting subsection (2) or (8), evidence that is gathered by a speed monitoring device under subsection (2) may be gathered by any method that captures the image of a motor vehicle and allows the image to be reproduced including, without limitation, by film or by electronic means.
(10) The following data, which may be in an encoded form, may be electronically and simultaneously recorded on the captured image under subsection (9):

(a) the time and date the image was captured;
(b) the location of the motor vehicle;
(c) the identity of the operator of the speed monitoring device;
(d) the speed of the motor vehicle;
(e) whether the motor vehicle was approaching, or receding from, the speed monitoring device;
(f) other similar types of information.

(11) Without limiting any other provision in this section, the recorded image under subsection (10) may be converted from one format to another, transmitted, stored or reproduced by electronic or any other means that allows the recorded image to be reproduced in intelligible form including, without limitation, electronically.
(12) If the Insurance Corporation of British Columbia has stored a recorded image in electronic format under subsection (11),

(a) the corporation may provide the recorded image by reproducing it in paper format, and
(b) the reproduction in paper format has the same effect for all purposes as if it were an original document, if the reproduction

(i) is certified by an officer of the corporation under section 82, or
(ii) contains a statement that it is an authentic reproduction of a recorded image stored in a database in electronic format by the corporation.

(13) For the purposes of section 83.2 (8) and subsections (11) and (12) of this section, a recorded image may include an enlargement of the area of the recorded image depicting the licence plate of the motor vehicle.

 
Certificate as evidence

83.2 (1) In this section, "enforcement officer" means an enforcement officer as defined in the Offence Act.

(2) An enforcement officer may provide, by signing a completed certificate in the prescribed form, evidence of an offence

(a) by an owner of a motor vehicle under section 83.1 (2), or
(b) by another person under a provision referred to in section 83.1 (2) if evidence of the offence was gathered through the use of a speed monitoring device prescribed for the purpose of that section.

(3) A certificate under this section is, without proof of the signature or the official position of the person signing the certificate, evidence of the facts stated in the certificate.
(4) A person against whom a certificate under this section is produced may, with leave of the court, require the attendance of the enforcement officer who signed the certificate, for the purpose of cross-examination.
(5) An enforcement officer who signs a certificate under this section must promptly send the certificate to the Insurance Corporation of British Columbia.
(6) The Insurance Corporation of British Columbia must keep a record of every certificate sent to the superintendent under subsection (5).
(7) The Lieutenant Governor in Council may prescribe the form and content of a certificate for the purposes of this section.
(8) The recorded image referred to in section 83.1 (11) may be included as part of a certificate under subsection (2) of this section.

Rev: 1999.04.12