R. v. Tri-M Systems Inc. (B.C.S.C.) 

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Counsel for the Appellant: Roger F. Cutler

Counsel for the Respondent: Barbara E. Brown, R. Hart

Place and Date of Hearing: New Westminster & Vancouver, B.C., September 29 & October 1, 1998

[1] The issue on this appeal is whether the photo radar scheme in British Columbia set out in s.83.1 and 83.2 of the Motor Vehicle Act R.S.B.C. 1996, c.318 contravenes s.7 or s.11(d) of the Canadian Charter of Rights and Freedoms.

[2] In this case Tri-M Systems Inc. ("Tri-M") received a violation ticket alleging the offence of speeding setting out the following:

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. licence 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 speed in municipality.

[3] In the Court below the parties agreed to the following facts:

1. Douglas Stead, representative for the accused, received the following documents for Violation Ticket SA00391011
1. a copy of Violation Ticket SA00391011;
2. a copy of Registered Owner's Offence Image;
3. a copy of Certificate of Enforcement Officer Photographic Evidence executed by Paul Ronto;
4. a copy of Photographic Radar Program Vehicle Image;
5. a certified copy of Certificate of Enforcement Officer Qualified Operator executed by Bernie Schutz; and
6. 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 Motor Vehicle Act 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.

[4] The legislative scheme allows the use of a photographic radar device to detect speeding vehicles. The scheme may be summarized as follows:

1. S.83.1(1) of the Motor Vehicle Act defines a speed monitoring device to be photographic radar;
2. S.83.1 of the Act provides that the registered owner is liable for the offence of speeding if the evidence was obtained by a photo radar device unless the owner establishes that another person was driving the car and that the owner had exercised care and diligence in entrusting the motor vehicle to another person;
3. S.83.2(2) permits an enforcement officer to provide evidence by completing and signing a certificate and 83.2(3) provides that:

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. S.83.2(4) requires the accused to obtain leave of the court to require the attendance of the enforcement officer for the purposes of cross examination;
5. S.24 of the Interpretation Act, R.S.B.C. 1996, c.238 provides that:

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 any proceeding, and the fact is deemed to be established in the absence of evidence to the contrary.

[5] After processing, which takes a number of weeks, the violation notice is sent to the registered owner of the motor vehicle. The sanction is a fine: no points are levied and offenders are not at risk of any imprisonment if the fine is not paid. The only other potential sanction is found in s.26(1)(c) of the Motor Vehicle Act which provides that I.C.B.C. "may" refuse to issue a driver's license if a fine remains unpaid.

[6] In the Court below, the learned Justice of the Peace concluded that driving a motor vehicle is a right protected by s.7 of the Charter. In so holding he relied upon the British Columbia Court of Appeal decision in R. v. Robson (1985), 45 C.R. (3d) 68, R. v. Sengara (1988), 26 B.C.L.R. (2d) 71 (S.C.) and Horsefield v. Ontario (Registrar of Motor Vehicles) (1997), 34 O.R. (3d) 509 (Gen. Div.).

[7] The learned Justice also concluded that the scheme violates s.11(d) of the Charter. In his reasons he noted that the legislation enables the Crown to prove all of the elements of the speeding offence by the introduction into evidence of the certificate and that as set out in s.24 of the Interpretation Act, the facts in the certificate are "deemed to be established in the absence of any evidence to the contrary."

[8] In his reasons he contrasted the photo radar procedures with the procedural safeguards available to an accused in the breathalyzer provisions of the Criminal Code R.S.C. 1985, c.C-46 and concluded that:

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.

He concluded that:

The aggregate procedure consisting of (a) evidence gathered through the use of a 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.

[9] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[10] The issue here is whether the ability to drive a motor vehicle engages the liberty interest in s.7.

[11] In Robson in 1985 the B.C. Court of Appeal held that while there exists no absolute right to drive and that while age, infirmity and other impediments may restrict the granting of a driver's licence, once granted:

there becomes attached to it the general liberty to employ one's skill and ability - in this case the ability to drive.

[12] The principle that the right to drive a motor vehicle is a liberty interest protected by s.7 of the Charter was followed by this court in 1988 in Sengara.

[13] In the case at bar the learned Justice of the Peace also relied on the more recent 1997 decision of the Ontario General Division in Horsefield. In that case Stong J. held that the automatic 90 day driving suspension provisions of the Ontario Highway Traffic Act R.S.O. 1990, c.H.8 triggered whenever a police officer is satisfied that a driver has either failed a roadside breath or blood test or has refused to provide a sample on demand infringed s.7 of the Charter.

[14] However Horsefield is under appeal and pending the hearing of that appeal, the Ontario Court of Appeal stayed Stong J.'s decision. Of note is that in so doing Finlayson J.A. expressed the view that:

... the judgment under appeal makes a limited analysis of existing case law and is not directly supported by any authority. (Horsefield v. Ontario (1997), 118 C.C.C. (3d) 184 at 191.)

[15] The issue as to whether the right to drive is constitutionally protected under s.7 was recently considered in Buhlers v. British Columbia (Superintendent of Motor Vehicles) (1998), 33 M.V.R. (3d) 164 (B.C.S.C.). In Buhlers Melvin J. concluded after an extensive review of the jurisprudence both preceding and following Robson that driving is not a right protected by s.7 of the Charter:

Is there then a right to hold a valid driver's licence to operate a motor vehicle within the Province of British Columbia and is that right caught within the language of the s.7 right to liberty? A driver's licence is granted, suspended or cancelled by the appropriate government agency in accordance with criteria that it sets. An individual has the right to move about within Canada and physical interference with that right may be in violation of s. 7. However, the right to move does not, in my opinion, carry with it the constitutional right to a particular mode of movement. (para. 35)

[16] Melvin J. concluded that Horsefield was not supported by the weight of judicial authority in this country. In my view Melvin J.'s conclusion is consistent with the many decisions of the Supreme Court of Canada which have repeatedly held that the ability to drive is not a constitutionally protected right nor is it incorporated within the term "liberty" in s.7 of the Charter.

[17] In Reference Re Section 94(2) of the Motor Vehicle Act (1985), 24 D.L.R. (4th) 536 the Supreme Court of Canada, in considering mandatory imprisonment for driving while prohibited, stated at p. 565:

Leaving aside for the moment the mandatory imprisonment sanction, I cannot find an interference with life, liberty or security of the person in s.94 of the Motor Vehicle Act. It is true that this section prevents citizens from driving their vehicles when their licenses are suspended. Citizens are also prevented from driving on the wrong side of the road. Indeed, all regulatory offences impose some restriction on liberty broadly construed. But I think it would trivialize the Charter to sweep all those offences into s.7 as violations of the right to life, liberty and security of the person even if they can be sustained under s.1.

[18] In R. v. Dedman (1985), 20 C.C.C. (3d) 97 (S.C.C.) the Court addressed the right to circulate in a motor vehicle on a highway and LeDain J. for the majority stated at p. 121 that driving:

... is not a fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to regulation and control for the protection of life and property.

[19] In addressing whether an individual should be compelled to submit to roadside screening device testing the Court in R. v. Bernshaw (1995), 95 C.C.C.(3d) 193 (S.C.C.) stated at 210:

This requirement to undergo the A.L.E.R.T. testing immediately should be regarded as one of the obligations that flows from the right to drive. In Galaske v. O'Donnell (1994), 112 D.L.R. (4th) 109 at p. 118, [1994] 1 S.C.R. 670, 21 C.C.6.7. (2d) 1, it was noted that the driving of a motor vehicle is neither a God given nor a constitutional right. Rather, it is a privilege granted by license.

[20] In R. v. Pontes (1995), 41 C.R. (4th) 201 (S.C.C.), the Court reviewed s.92 of the Motor Vehicle Act (now s.99) to determine whether an individual's rights under s.7 were violated by the absolute liability offence of driving while prohibited. While the section provided for an automatic driving prohibition on conviction, the majority of the Court concluded that as there was no possibility of imprisonment "liberty" was not engaged. At p. 219 Cory J. stated:

Thus, an accused convicted under ss.92 and 94 of the B.C. Motor Vehicle Act faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter.

[21] The minority opinion of Gonthier J. (three other justices concurring) although differing with the majority as to whether s.92 constituted an absolute liability offence, agreed with the majority that as there was no possibility of imprisonment, section 7 of the Charter was not engaged. At p. 240 Gonthier J. stated:

As a result, when a licensed driver violates one of the conditions attaching to his licence he should not be considered as being without fault simply because he was unaware of that condition. There is no fundamental right to drive a motor vehicle, any more than there is a fundamental right to own a gun or any other instrument of potential destruction. It is a privilege, a privilege which, sadly, is often abused with tragic repercussions. A legislature can provide for consequences which are to attach when this privilege is abused and stipulate standards of behavior for continued licensing.

[22] In R. v. Ladouceur (1990), 56 C.C.C. (3d) 22 (S.C.C.) the Court considered random stops by police of motor vehicles and Cory J. said at p. 39:

It is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways. Proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public thoroughfares.

[23] Most recently the court in R. v. Richard (1996), 110 C.C.C. (3d) 385 (S.C.C.) in addressing traffic ticket offences, held that s.7 is not engaged when there is no possibility of imprisonment.

... it is entirely different in the context of regulatory offences for which imprisonment is not a possibility and which accordingly do not bring the liberty component of s.7 into play.

[24] Appellate courts in other provinces have all held that driving is not a right protected by s.7 of the Charter:

R. v. Neale (1986), 52 C.R. (3d) 376 (Alta C.A.);
Prince Edward Island (Registrar of Motor Vehicles) v. Rankin (1991), 30 M.V.R. (2d) 122 (P.E.I.S.C.A.D.);
Ginther v. Sask. Govt. Ins., [1988] 4 W.W.R. 738 (Sask. C.A.);
Paganelli v. Ontario (Reg. Of Motor Vehicles) (1987), 6 M.V.R. (2d) 252 (Ont. Div. Ct.);
R. v. LeClair (1990), 20 M.V.R. (2d) 47 (Man. Q.B.);
White v. Nova Scotia (Registrar of Motor Vehicles) (1996), 20 M.V.R. (3d) 192 (N.S.S.C.);
R. v. Smith (1989), 14 M.V.R. (2d) 166 (Y.C.A.)

[25] Tri-M agrees that "the right to drive" is not an absolute or constitutional right and the granting of a licence is subject to regulation and licensing requirements set out in s.3 of the Motor Vehicle Act. However, relying on Robson, Sengara, and Horsefield, Tri-M also says that once a license has been issued, the right to use one's skill and ability to drive is protected under s.7 of the Charter and cannot be taken away except in accordance with the principles of fundamental justice.

[26] In Robson the Court of Appeal concluded that while the right to drive was not an absolute or constitutional right, once properly licensed it became such a right and at that point became constitutionally protected. The court appears to have concluded that the effect of issuing a licence to a driver does not just confer upon the driver the privileges and obligations as set out in the regulatory scheme, but it also has the effect of transforming what was not a constitutionally protected right into a constitutionally protected right by reason of the issuance of a license in accordance with the regulatory scheme.

[27] In my respectful view the weight of authority in Canada is to the contrary. In 1985 in Reference Re Section 94(2) of the Motor Vehicle Act the Supreme Court of Canada warned against "trivializing the Charter" by sweeping regulatory restrictions against driving while one's licence is suspended "into s.7 as violations of the right to life, liberty and security of the person even if they can be sustained under s.1".

[28] Since that decision the Supreme Court has consistently held in the cases to which I have earlier referred that there is no fundamental right to drive and that driving a motor vehicle in Canada is a privilege which must be exercised in accordance with the regulatory scheme that the legislators choose to put in place. In my view the Court has rejected the Robson approach and it is at least implicit if not in fact explicit in their many consistent decisions on this point that the Supreme Court has rejected any notion that the non constitutional right to drive a motor vehicle is somehow transformed into a constitutionally protected right by reason of the issuance of a driver's licence.

[29] With respect, I believe that the learned Justice of the Peace erred in following Robson, Sengara and Horsefield. I agree with Melvin J. of this court that these decisions do not represent the current state of the law in Canada. In my view, the ability to drive a motor vehicle is not incorporated within the meaning of "liberty" within s.7 of the Charter and I would allow the Crown's appeal on that point.

[30] The Court below concluded that the use of the photographic radar device to gather evidence and "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."

[31] Section 11(d) of the Charter provides:

Any person charged with an offence has the right:
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[32] S.11(d) protects three essential components of the presumption of innocence:

an accused must be proven guilty beyond a reasonable doubt;

the State must bear the burden of proving the essential elements of the offence; and

criminal prosecutions must be carried out in accordance with fair, public and lawful procedure. (R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.) at 334-335)

[33] The scope and extent of a right under s.11(d) will vary with the context. The scope of s.11(d) is somewhat limited in this case as the matter involves a regulatory offence for which imprisonment is not a possibility. However even for non- criminal regulatory offences, the presumption of innocence in s.11(d) still applies. The Crown is obliged to prove the actus reus of regulatory offences beyond a reasonable doubt. (See R. v. Wholesale Travel Inc. (1991), 8 C.R. (4th) 145 at 184).

[34] In R. v. Osolin, [1993] 4 S.C.R. 595 Cory J. for the majority stated the principle as follows:

The fundamental principle protected by s.11(d) is the guarantee of a right to be presumed innocent, that is, that an accused is not to be convicted when there exists a reasonable doubt as to his guilt. Any law which places a persuasive burden on the accused to prove either the existence or non-existence of a fact essential to guilt will infringe upon the right guaranteed by s.11(d).

[35] The issue in this case is whether the characteristics of the photo radar scheme infringe upon this right to be presumed innocent. The Crown says that the legislative scheme neither requires nor permits a finding of guilt when a reasonable doubt exists; Tri-M argues that the scheme creates a mandatory presumption insofar as the legislation provides that certain documents, in the absence of evidence to the contrary, are deemed to establish or prove certain facts and that in the circumstances the trier of fact is required to convict the accused on the basis of the presumed facts, unless the accused presents evidence to the contrary. Tri-M says that this mandatory presumption violates s.11(d).

[36] Section 83.1(8) permits the Lieutenant Governor in Council to prescribe a speed monitoring device for enforcement of s.83.1. Section 83.1(1) defines "speed-monitoring device" as a "device... capable of photographing or capturing the image of a motor vehicle while accurately and simultaneously measuring and recording its speed." By Regulation (s.41.01 of the Motor Vehicle Act Regulations) the Lieutenant Governor in Council prescribed the Auto-Patrol Speed Camera PR 100 pursuant to s.83.1(8).

[37] It is not uncommon nor is it unconstitutional to use evidence gathered by scientific means to prove elements of the criminal charge against an accused. This may be done by various means including photographic evidence, audio and video evidence, DNA evidence or radar gun evidence. The Supreme Court of Canada has held that such scientific evidence may constitute cogent and convincing evidence not subject to the frailties of eye witness testimony and that such evidence alone can be a sufficient basis to establish guilt. (R. v. Nikolovski (1996), 111 C.C.C. (3d) 403).

[38] However in the case at bar Tri-M's principal objection is not with respect to the use of the prescribed device; rather, it says that under the provisions of the Motor Vehicle Act and s.24 of the Interpretation Act, all of the ingredients of the offence can be proved by the Crown by the simple measure of introducing the Certificate into evidence.

[39] At paragraph 49 of his reasons the learned Justice of the Peace appears to have adopted this submission where he says:

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. (emphasis added).

[40] In the next paragraph of his reasons the learned Justice of the Peace concludes that:

... 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.

[41] In my view the real issue is whether the legislative scheme taken as a whole does in fact require the Court to convict on the basis of the Certificate evidence or whether the scheme merely allows the Crown to establish a prima facie case.

[42] The answer is to be found in the wording of s.24 of the Interpretation Act. That provision stipulates that the evidence of the facts stated in a certificate are "deemed to be established in the absence of evidence to the contrary." This does not create a requirement to convict where a reasonable doubt exists.

[43] It is open to the accused to raise a reasonable doubt based on the contents of or omissions from the certificate itself and/or to apply for an order that the author of the certificate attend for cross-examination. Either or both of these steps are available to an accused and allow him to attempt to raise a reasonable doubt without having to testify.

[44] In my view all that the certificate evidence does is serve to establish at most a prima facie case which then shifts the evidentiary burden to the accused to raise a reasonable doubt. This does not constitute a violation of s.11(d) of the Charter since it is a shift of only the evidentiary burden. The legal burden of proving all ingredients of the offence beyond a reasonable doubt always remains with the Crown.

[45] In R. v. Proudlock (1978), 43 C.C.C. (2d) 321 the Supreme Court of Canada interpreted s.24(1) of the Interpretation Act, R.S.C. 1970, c.I-23. In language virtually identical to s.24 of the B.C. statute, this federal statute provides:

24(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary.

[46] The court held that this provision did not shift the legal burden but created only a prima facie burden. In speaking of the effect of a presumption that establishes a prima facie case the court held at p. 325:

The burden of proof does not shift. The accused does not have to "establish" a defense or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.

[47] Tri-M argues that the offensive aspect of the photo radar scheme is that it allows the Crown to prove not just one or even several of the ingredients of the offence through certificate evidence, but rather all of the elements of the offence. In my view this does not undermine the validity of the scheme.

[48] The essential question is whether a court is required to convict when it has a reasonable doubt. What Proudlock says is that the language of the Interpretation Act does not oblige the court to convict if a reasonable doubt as to the guilt of the accused is raised by reason of the contents of the certificate or the cross-examination of the author of the certificate. Accordingly I conclude that the photo radar legislation does not offend s. 11(d) of the Charter and I would allow the Crown's appeal on that point as well.

[49] In the result the Crown's appeal will be allowed and this matter remitted to the provincial court for a new trial.

"D. Brenner, J."

Rev: 1998.11.28