1. The Respondent agrees with the Appellant’s Statement of Agreed Facts.

1. The Respondent submits that the court below was correct in ordering a stay of proceedings against the Respondent.
    
2. The Respondent submits that court below was correct in finding that:
   

(a) Sections 83.1 and 83.2 of the Motor Vehicle Act violate section 7 of the Canadian Charter of Rights and Freedoms; and

(b) Sections 83.1 and 83.2 of the Motor Vehicle Act violate section 11(d) of the Canadian Charter of Rights and Freedoms.
 
3. No evidence was led by the Appellant under section 1 and therefore no arguments that the legislation is reasonably and demonstrably justified.

1. The Respondent submits that the impugned photo radar legislation is unprecedented and violates the most basic and integral principles in our justice system protected under sections 7 and 11(d) of the Charter. Before the accused ever steps into a courtroom, the legislative scheme presumes the guilt of the accused solely on the basis of certificate evidence without any procedural safeguards to ensure the reliability and trustworthiness of that evidence. The legislation effectively relieves the Crown of its burden of proving any elements of the offence of speeding. The burden rests entirely on the accused to present evidence to the contrary of the bald conclusions of fact set out in the certificates which, by virtue of the legislation, are deemed to be proof of the facts contained in them. In contrast, where a person is charged with a speeding offence and photo radar is not used to gather the evidence, the Crown retains the burden of proving all elements of the offence. This creates an unequal two-tiered system of justice, violates the accused's right to be presumed innocent until proven guilty, and renders the accused’s right to make full answer and defence merely "illusory".

2. The Justice of the Peace was correct in finding that Sections 82.1 and 82.2 of the Motor Vehicle Act violate s. 11(d) of the Charter.
    
3. It is respectfully submitted that section 11(d) of the Charter is violated in all photo radar speeding offences and not just where the vicarious liability provisions apply. Even if a person is not charged as the registered owner of the vehicle, the use of a prescribed photo radar device in combination with the use of certificates to prove all elements of the offence of speeding under section 83.2 , violates a person’s right to be presumed innocent until proven guilty in a court of law with fair and lawful procedures.
    
4. The Respondent further submits it is the operation of section 83.2 in combination with s. 24 of the Interpretation Act which requires the trier of fact to accept certificate evidence as proof beyond a reasonable doubt, in the absence of proof to the contrary, which violates section 11(d) of the Charter.

 
5. Section 11(d) of the Charter provides that:
    
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.
 
6. Prosecution of a traffic offence, even where the only consequence is imposition of a nominal fine, is a criminal or quasi-criminal proceeding and falls within the scope of s. 11 of the Charter.

  Wigglesworth v. R. (1987), 37 C.C.C. (3d) 385 at 400
 
7. Section 11(d) protects three essential components of the presumption of innocence:

(a) an accused must be proven guilty beyond a reasonable doubt;

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

(c) criminal prosecutions must be carried out in accordance with fair, public and lawful procedures.
 

R. v. Oakes (1986), 24 C.C.C. (3d) 321 (SCC) at 334 - 335
 
8. The Respondent does not disagree with the proposition of law set out in paragraph 28 of the Appellant’s Argument, that the scope and extent of a right under 11(d) will vary with the context. However, the S.C.C. has affirmed that even for non-criminal regulatory offences, the presumption of innocence set out in s. 11(d) is not "meaningless". The Crown must still prove the actus reus of regulatory offences beyond a reasonable doubt.

  R. v. Wholesale Travel Inc. (1991), 8 C.R. (4th) 145 at 184
 
9. The Respondent submits that the Court below was correct in finding that the S.C.C. has consistently emphasized the importance of applying a contextual and purposive analysis of rights and freedoms guaranteed under the Charter so as to ensure that all individuals enjoy the full benefit of the Charter’s protections.

A. Mandatory Presumptions and the Burden of Proof

10. The S.C.C. has recently affirmed that the imposition of an evidentiary burden of proof on the accused violates the presumption of innocence under s. 11(d) of the Charter.
     
R. v. Laba (1994), 94 C.C.C. (3d) 385 at 420
 
11. Where the evidentiary burden is imposed with respect to a factual element of the offence which is within the knowledge of the accused, the violation of s. 11(d) may be upheld under section 1.

  Laba, supra.
 
12. A mandatory presumption is created where legislation provides that certain documents, in the absence of evidence to the contrary, are deemed to establish or prove certain facts. In these 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. This mandatory presumption violates section 11(d) of the Charter.

  R. v. Evans, supra at pg. 27
R. v. Shaw (1994), 75 O.A.C. 378 (Ont. C.A.) at 395
R. v. Beals (1991), 68 C.C.C. (3d) 277 at 283-284
 
13. It is submitted that section 83.2 and 83.1 of the Motor Vehicle Act violate all three components of the presumption of innocence under s. 11(d) of the Charter by:

(a) creating a mandatory presumption with respect to every element of the offence, which in the absence of evidence to the contrary, requires the trier of fact to convict on the basis of that evidence;

(b) requiring trier of fact to admit certificate evidence as proof of the offence without providing any procedural safeguards or conditions to its admissibility; and

(c) imposing an evidentiary burden on the accused with respect to every element of the offence, thereby relieving the Crown of its burden of proof. The information required to raise a reasonable doubt is within the knowledge of the Crown and Crown agencies and not the accused.
 

14. The legislative scheme may be summarized as follows:

(a) section 83.1(1) of the Motor Vehicle Act defines a speed monitoring device to be photographic radar;

(b) section 83.1(2) of the Act requires the registered owner to be found 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 exercise care and diligence in entrusting the motor vehicle to another person;

(c) section 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.

(d) section 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;

(e) Section 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.
 
15. The combined effect of sections 83.1 and 83.2 of the Motor Vehicle Act and s. 26 of the Interpretation Act is that all elements of a photo radar offence may be proven by certificate evidence, and, in the absence of the accused presenting evidence to the contrary, the trier of fact must convict the accused on the basis of the certificate evidence.

  Reasons for Judgment at pp. 13 - 14
R. v. Evans, Provincial Court of B.C. Victoria Registry SA001114596, January 16, 1998 at p. 27 (Rivett, J.)
Shaw, supra
Beals, supra
 
16. In this case, the accused was served with certificate evidence would be sufficient to prove all elements of the offence of speeding.
     
Certificate of Enforcement Officer Qualified Operator
Certificate of Enforcement Officer Photographic Evidence
 

B. Reliability of Certificate Evidence

17. It is submitted that the impugned legislation requires the trier of fact to convict an Accused on the basis of the hearsay Certificate evidence even if the trier of fact may have a reasonable doubt about the factual content of that evidence. A reasonable doubt may be raised by the Certificates evidence on the basis that:
     

(a) the certificates contain out of court statements with respect to every element of the offence of speeding. The law assumes that hearsay evidence is "fraught with untrustworthiness" because its value rests on the credibility of out of court statement made by a person who is not under oath, and not subject to cross-examination or a charge of perjury;
 

  Sopinka et. al. Eds. The Law of Evidence in Canada, 1992 at pp. 157 - 158
  (b) as the court below correctly found the Certificates contain "bald statements of fact on pre-printed forms without providing any information about how that information was obtained". In reaching this conclusion, the court below cited from the Reasons of Rivett, J.P., in Evans, supra, at 27:
  ... 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.

(c) in the case of photo radar the evidence asserts the accuracy of technical, complex technology which is fraught with frailties and subject to human and mechanical error; This is not a case of submitting Certificate evidence about straightforward proof of documents or real evidence which can be observed and assessed by the trier of fact;

(d) Hearsay evidence may exceptionally be admitted on the basis of necessity and reliability. Those conditions are not met in this case. After reviewing the procedural safeguards in place for other legislation which permits the use of Certificate evidence, the Justice of the Peace correctly concluded that the certificate evidence in the photo radar scheme is "deficient vis-a-vis procedural safeguards and protections"
 

Reasons for Judgment at p. 16
 
18. It is submitted that the various deficiencies with certificate evidence adduced pursuant to section 83.2 are sufficiently to raise a reasonable doubt as to the guilt of the accused. Despite this existence of a reasonable doubt, in the absence of the accused leading evidence to the contrary, the judge is required to convict the accused on the basis of the facts alleged in those certificates evidence. This violates the accused’s right to be presumed innocent until proven guilty in a fair and public hearing under s. 11(d) of the Charter.
     
19. It is further submitted that this violation is particularly egregious because the legislation creates a mandatory presumption and imposes an evidentiary burden on the accused with respect to the whole of the Crown’s case. In these circumstances, the Crown is effectively relieved of its entire burden of proving the actus reus of the offence of speeding.
     
20. The Respondent takes issue with the Appellant’s submission that certificate evidence and other technical evidence is usually accepted as cogent evidence which alone is sufficient to establish guilt of the accused. The cases relied on to support that proposition deal with circumstances are distinguishable from the present case, and in particular:

(a) the Appellant refers to circumstances in which legislation assists the Crown to prove only certain specified facts and not every element of the offence;

(b) none of the cases deal with a situation similar to photo radar, in which complex technical evidence and measurements are contained in certificate evidence without any procedural safeguards and viva voce testimony to ensure the reliability and trustworthiness of that evidence;

(c) many of the examples relied on by the Appellant deal with admission of copies of documents or records which are clearly distinguishable from the complex technical mechanisms of photographic radar;

(d) the cases involving photographic evidence deal with circumstances in which the information asserted is visible to and can be assessed by the observer and therefore meet the test of reliability.
 

21. Once again, it is the far reaching and sweeping scope of the photo radar legislation which distinguishes this case from other legislation that assists the Crown in proving certain specified facts. Photo radar legislation does not simply assist the Crown to prove specified facts, it assists the Crown to prove its entire case without any procedural safeguards to ensure the reliability and fairness of that evidence. This relieves the Crown of its entire burden of proof and violates all three component of s. 11(d) of the Charter.
     
22. The impugned provisions also violate the principle that all citizens ought to enjoy equal benefit, application and protection of the law guaranteed under s. 15 of the Charter. The availability of the right to the presumption of innocent should not be linked to how evidence of the offence is obtained.

23. It is submitted that the court below was correct in finding that Sections 83.1 and 83.2 in combination with s. 26(1) and 151(1) of the Motor Vehicle Act do violate section 7 of the Charter.
     
24. The Respondent agrees with the Appellant that section 7 requires a two-step analysis, however it is not necessary to find that the impugned provisions willdeprive a person of the right to life, liberty or security of the person. It is sufficient to establish that the provisions have thepotential to deprive the person of such a right.
     
R. v. Swain (1991), 63 C.C.C (3d) 481 at 503 (S.C.C.)
 

A. Do The Impugned Provisions Have the Potential to Deprive an Accused of the Right to Employ one’s skill and and Ability to drive?

25. Section 26 of the Motor Vehicle Act empowers I.C.B.C. to refuse to issue a license if he or she has failed to pay a fine imposed as a result of a conviction under the Motor Vehicle Act. Therefore, the impugned provisions have the potential to deprive an accused of the ability to drive.
     
26. The Respondent disagrees with the Appellant’s argument that the decision to refuse to issue a license is an administrative decision and therefore the appropriate recourse is to obtain an administrative law remedy.
     
27. The question of whether or not a license is refused is a matter of discretion, but a person is subject to the possibility of having his or her license taken away on the basis of a conviction under the Act. The S.C.C. has affirmed that section 7 of the Charter is triggered where there is a potential for a person to be deprived of the right to life, liberty or security of a person. It is possible for I.C.B.C. to make a fair administrative decision and deprive the person of a driver’s license on the basis of a conviction.

28. It is submitted that the court below was correct in finding that once a driver is licensed in accordance with the requirements of the Motor Vehicle Act, the right to employ one’s skill and ability to drive is a liberty right protected under section 7 of the Charter which cannot be taken away except in accordance with principles of fundamental justice.
     
29. The "right to drive" is not an absolute or constitutional right and the granting of a license is subject to regulation and licensing requirements set out in Section 3 of the Motor Vehicle Act. However, 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.
     
R. v. Robson (1985) 45 C.R. (3d) 68 at 71 (B.C.C.A.)
R. v. Sengara (1988), 26 B.C.L.R. (2d) 171
Horsefield v. Ontario (The Registrar of Motor VehiclesI) [1997] O.J. No. 3183

This principles is set out by the B.C.C.A. in R. v. Robson (1985) 45 C.R. (3d) 68 at p. 71:
 

"Liberty" under the Charter cannot be taken to create an absolute right to drive. Age, infirmity, and other impediments may restrict the granting of driver’s 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 a right under the Charter and a person cannot be deprived of it except in accordance with the principles of fundamental justice.
 
30. In Sengara, supra, the B.C.S.C. had the opportunity to revisit the Court of Appeal’s decision in Robson in light of the S.C.C. decision in R. v. Dedman. The B.C.S.C. affirmed the decision in Robson and held that once a driver’s license is granted, the right to drive is a liberty right protected under section 7 of the Charter. The B.C.C.A. has not overturned its decision in Robson.
     
31. It is submitted that the decision of R. v. Smith, in which some members of the B.C.C.A. sitting as the Yukon Court made obiter comments about the Robson decision, is not binding and with great respect, the court improperly merged consideration of procedural fairness with the threshold test of whether a right to employ the skill and ability to drive, once granted by license, triggers a liberty right under s. 7.
     
32. The Respondent disagrees with the Appellant’s position that the only liberty right that is protected under section 7 of the Charter is the right to be free from imprisonment and that absent the possibility of imprisonment, section 7 cannot be violated. The B.C.C.A. has consistently held that "liberty rights" are not restricted to the freedom from imprisonment and the S.C.C. has recently affirmed a broader interpretation to "liberty."
     
Robson, supra;
Wilson v. Medical Services Commission of British Columbia (1988), 30 B.C.L.R. (2d) 1 (C.A.) at 18 leave to appeal to the S.C.C. refused;
Godbout v. Longueuil [1997] 3 S.C.R. 844
 
33. The effect of narrowly interpreting the "right to liberty" under section 7 of the Charter to those circumstances where there is a potential for imprisonment is to deprive most citizens of the full benefit of the Charter’s protection under section 7. As noted by the court below, the S.C.C. has consistently emphasized the importance of applying a contextual and purposive analysis of rights and freedoms guaranteed under the Charter so as to ensure that all individuals enjoy the full benefit of the Charter’s protections.
     
Reasons for Judgment, supra, at pp. 8 - 9
 
34. While it is true that the scope of Charter rights may be different in a regulatory context, our Courts have not suggested that in these circumstances Charterrights ought to be meaningless or eliminated altogether.
     
35. The Appellant relies on several authorities for the proposition that driving is a privilege and not an absolute right, and therefore, the right to drive is not protected under the Charter. The Respondent does not take issue with the proposition that there is no general "right to drive". However, there is a right to liberty and once a license is granted, the liberty interest engaged is the right to employ one’s skill and ability to drive.
     
36. It is respectfully submitted that all activity in a modern, democratic society, including the right to be free from imprisonment and various forms of government regulation, is ultimately a privilege which is subject to codes of proper societal conduct and regulation. By limiting the scope of the "right to liberty", the government is effectively shielded from any challenges to legislation which improperly deprives an individual of the license to drive.
     
37. Taken to its logical conclusion, the Appellant’s position is that the State, through the use of enforcement agencies and prosecutorial powers, could obtain a conviction and deprive drivers of their licenses by any means possible, irrespective of whether or not those convictions were obtained in accordance with principles of fundamental justice or the regulatory purposes of the Act. Such an interpretation is not consistent with the meaning and purpose of rights guaranteed under the Charter.
     
38. The Charter must be interpreted in a purposive manner, that is, rights ought to be interpreted in light of the purpose of the guarantee and the context in which the claim arises, and in a manner the provides individuals with the full benefit of Charter rights. It is submitted that when given a broad, purposive and contextual analysis, once a license has been granted, the right to employ one’s skill and ability to drive is a liberty right protected under section 7 of the Charter.
     

39. It is submitted that the impugned provisions violate principles of fundamental justice by:

(a) violating the presumption of innocence guaranteed in s. 11(d) of the Charter;

(b) potentially depriving a person of the right to drive based on considerations that have nothing the do with criteria for regulating driving under the Act;

(c) rendering the accused’s right to make full answer and defence merely illusory; and

(d) violating the right to equal application, benefit and protection of the law as guaranteed under s. 15 of the Charter. The legislation creates a two-tiered system which extends unequal procedural rights and protections depending solely on the mechanism used by the State to obtain evidence. Persons charged under photo radar legislation do not enjoy the same procedural protections and safeguards enjoyed by other persons charged with speeding where the evidence is not obtained by photo radar.
 

40. It is further submitted that the court below was correct in finding that the following procedural flaws violate principles of fundamental justice:

(a) adducing evidence to prove all elements of the offence necessary to obtain a conviction through certificate evidence creates a reverse onus and thereby violates the accused’s right to be presumed innocent;

(b) adducing evidence to prove all elements of the offence necessary to obtain a conviction through certificate evidence without the requisite procedural safeguards and conditions of admissibility provided in other circumstances where certificate evidence is adduced;

(c) the refusal to grant a driver’s license for the non-payment of fine imposed on the basis of a conviction improperly obtained is not linked to any safety or regulatory criteria set out in the Act. As the court below noted the public has Athe right to be protected from `bad drivers’ and not `deadbeat drivers’ (p. 18).
 

41. It is respectfully submitted that the basis for the finding by the court below that the impugned provisions do violate principles of fundamental justice apply to all speeding offences in which evidence is obtained by photo radar and not just those cases involving vicarious liability of registered owners.
     
42. The S.C.C. has found that the principles of fundamental justice are to be found in the basic tenets of our legal system. These basic tenets include the right to be presumed innocent until proven guilty as guaranteed under s. 11(d) of the Charter.
     
Swain, supra at 504 - 505
Oakes, supra at 333
Reasons for Judgment at 11 - 12
 
43. It is submitted that the right of all citizens to equal application and benefit of the law is also a basic tenet of our justice system.
     
44. The Respondent repeats the submissions set out above that the impugned provisions violate the presumption of innocence.
     
45. The Court below was correcting in finding that there are procedural differences between cases in which photo radar is those in which another form of mechanism is used. Where a person is charged with a non-photo radar speeding offence, the Crown must prove all elements of the charge beyond a reasonable doubt. The Crown calls witnesses to testify and those witnesses are subject to cross examination in accordance with judicial ethics and evidentiary rules.
     
46. In contrast, where a person is charged under photo radar legislation, the Crown may prove its case entirely through certificate evidence without any procedural safeguards, the accused bears the onus of evidentiary proof with respect to every element of the offence, and the accused must obtain leave of the court to cross examine the enforcement officer.
     
47. It is respectfully submitted that the effect of sections 83.1 and 83.2 of the Act 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. This violates the right to equal protection and benefit of the law.
     
48. It is further submitted that photo radar legislation effectively denies an accused the right to full answer and defence. The legislation imposes a burden to present a defence to the "bald facts" asserted in the certificates, without any factual foundation to do so. The certificates do not set out the background facts or circumstances in which the alleged evidence of speeding was obtained nor do they provide a factual basis for the conclusion that the photo radar accurately measured the speed of the vehicle shown in the photograph. In these circumstances, the right of a lay person unfamiliar with the technical operations of the radar, to present a full answer and defence, or to obtain leave of the court to cross examine the enforcement officer, is simply illusory. As the court below correctly found at p. 16 of his Reasons for Judgment, the S.C.C. has held that:
     
" ...it is a basic tenet of our criminal justice system that when Parliament creates a defence to a criminal charge the defence should not be so illusory or so difficult to attain as to be practically illusory."
 
49. The Respondent submits that for all the reasons set out above, the impugned provisions have the potential to deprive a person of the liberty right to employ one’s skill and ability to drive once a license is granted and that deprivation is not in accordance with principles of fundamental justice.

50. The Court below was correct in declaring that sections 83.1 and 83.2 violate s. 7 and 11(d) of the Charter and ordering a stay of proceedings against the Respondent.
     
51. The Respondent disagrees with the Appellant’s submission that the appropriate remedy for a finding that the impugned legislation violates principles of fundamental justice is to read down s. 26(1) of the Motor Vehicle Act. The Respondent submits that the appropriate remedy is to declare sections 83.1 and 83.2 unconstitutional and of no force or effect and to be struck down to the extent necessary to render them consistent with sections 7 and 11(d) of the Charter.