I. REMEDIES SOUGHT AND ISSUES TO BE DECIDED BY THE COURT

A. Remedies Sought

1. A declaration that s. 76.1 and 76.2 in combination with s. 151(1) and s. 26 of the Motor Vehicle Act of British Columbia, R.S.B.C. 1979, c. 288 as amended by the Motor Vehicle Amendment Act, S.B.C. 1995, c. 28 (the "MVA) violate s. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms (the "Charter") and are of no force or effect; and

 
2. A ruling that the Accused is not guilty of the offence of speeding in a Municipality as alleged in Violation Ticket SA300391011.

B. Issues to be Decided by the Court

The issues to be decided by this Honourable Court are:

1. Do s. 76.1 and 76.2 (now s. 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?
It is respectfully submitted that the provisions do violate s. 7 and 11(d) in that:
1. the provisions create a different burden and standard of proof and limit the Accused's right to cross-examination and full answer where the evidence is obtained by a photo radar device. It is submitted that this violates the principle of fundamental justice that all persons charged with the same offence ought to enjoy the same procedural rights and protections.
2. the legislation violates principles of fundamental justice and deprives an Accused of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by:
1. relieving the Crown of the burden of proving all of the essential elements of the offence of speeding;
2. permitting the Crown to prove its case entirely through otherwise inadmissible hearsay evidence without any safeguards to ensure the trustworthiness and reliability of that evidence;

depriving an Accused of the right to full answer and defence by not providing the Accused with the opportunity to hear and evaluate the Crown's evidence through in court testimony and to test the credibility, accuracy and reliability of that evidence through cross-examination.

Section 1 of the Charter

It is submitted that the provisions cannot be saved under s. 1 of the Charter because:

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II. LEGISLATIVE FRAMEWORK

The Offence of Speeding

1. The Accused is charged with the Provincial offence of speeding over 50 km/hour in a Municipality contrary to s. 151(1) of the MVA.

 
2. Sections 76.1 and 76.2 of the MVA (now s. 83.1 and 83.2 respectively) apply only to speeding violations in which photographic radar has been used to obtain the alleged evidence of speeding.

 
3. The following provisions of those sections are particularly relevant:

S.76.1(2) The owner of a motor vehicle is liable for the contravention off section 145, 151(1), 3),(5) and (7), 152 or 152.(1) if evidence of the contravention was gathered through the use of a speed monitoring device.

S.76.1(8) The Lieutenant governor in Council may prescribe a speed monitoring device for the purpose of subsection (2).

S.76.2(2) An enforcement officer may, for the purpose of providing evidence on an offence

by an owner of a motor vehicle under 76.1(2), or

by another person under a provision referred to in

section 76.1(2) if evidence of the offence was gathered through the use of a speed monitoring device prescribed for the purpose of that section,

complete and sign a certificate in the prescribed form.

S.76.2(3) A certificate of an enforcement officer completed and signed under subsection (2) is, without proof of the signature or official position of the person giving the certificate, evidence of the facts stated in the certificate.

S.76.2(4) A person against whom a certificate referred to in subsection (2) is produced may, with leave of the court, require the attendance of the enforcement officer who completed and signed the certificate for purposes of cross-examination.

S.76.1 provides that the owner of a motor vehicle is liable for the contravention of section 151(1) if the evidence of the contravention was gathered through the use of a prescribed speed monitoring device unless the owner establishes that another person was the driver of the car and that he or she exercised reasonable skill and diligence in entrusting the motor vehicle to that person.

In s.83.2 of the MVA, R.S.B.C. 1996, c. 318 "speed monitoring device" means:
"..a speed monitoring device prescribed under the subsection (8) that is capable of photographing or capturing the image of a motor vehicle while accurately and simultaneously measuring and recording its speed"

B. The Penalty for Speeding

4. The specified penalty in this case is a $100.00 fine and 3 demerit points on the driving record of a person found guilty of speeding.
See: Violation Ticket and MVA Regulations
5. If the specified fine is not paid, the Insurance Corporation of British Columbia may refuse to issue a driver's license.
See: s. 26 of the MVA

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III. RIGHTS OF THE ACCUSED UNDER S. 7 AND 11(d) OF THE CHARTER

A. Standing of the Accused to Bring Charter Challenge:

6. A Corporation has standing to challenge the constitutionality of an offence as part of its own defence and may benefit from a finding that the provisions are unconstitutional if:
1. the corporation is charged with an offence in a penal prosecution or proceeding; and
2. the legislation at issue applies to both individuals and corporations.
This is an exception to the general rule that a corporation cannot avail itself of protection under the Charter and is based on the principle that no Accused ought to be convicted of an offence under an unconstitutional law.
R v. Wholesale Travel Group (1991), 8 C.R. (4th) 145 at p. 199 - 201
7. Prosecution of a speeding offence constitutes a penal proceeding even if the penalty is only a small fine.
R. v. Wigglesworth (1987), 37 C.C.C. (3d) 385 at 400
8. In this case, the provision applies to both individuals and corporations, and the Accused is being prosecuted in a penal proceeding. Therefore, Tri-M Systems Inc. is entitled to challenge the constitutionality of the MVA provisions and benefit from a finding that they are unconstitutional.

B. Section 7 of the Charter

s. 7: "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."

9. To establish a s. 7 violation, the Court must answer two questions:

1. Do the impugned provisions have the potential to deprive an accused of a right to life, liberty or security of the person?
2. Do the impugned provisions violate one or more principles of fundamental justice?

10. Section 7 of the Charter may be invoked in circumstances where there is a potential to deprive a right to life, liberty or security of of the person, such as the possibility of imprisonment for the failure to pay a fine.
Wholesale Travel, supra, at 184 and 187.
11. A license to drive a motor vehicle constitutes a right to drive and is a liberty protected under s. 7 and cannot be taken away except in accordance with the principles of fundamental justice.
R. v. Sengara (1988), 26 B.C.L.R. (2d) (B.C.S.C.)
12. Section 26 of the MVA empowers I.C.B.C. to refuse to issue a license if he or she is indebted to the government because of a failure 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 right to drive for the non-payment of a fine and thus falls within the protection of s. 7 of the Charter.
S. 26 of the Motor Vehicle Act, supra.
13. Section 11(d) is incorporated into s. 7 and the presumption of innocence is an integral principle of fundamental justice.
Canadian Charter of Rights, McLeod R. M. et. al. Eds. Vol. 1 at p. 5-68.1 citing Reference re Section 94(2) of the Motor Vehicle Act (B.C) (S.C.C.);

C. Section 11(d) of the Charter

S. 11: "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;"
14. A traffic offence, however slight the consequence, is a criminal or quasi-criminal proceeding and falls within the scope of s. 11 of the Charter.
Wigglesworth, supra at p. 400
15. Section 11(d) protects three essential components of the presumption of innocence:
1. (1) an accused must be proven guilty beyond a reasonable doubt;
2. (2) the State must bear the burden of proving the essential elements of the offence; and
3. (3) criminal prosecutions must be carried out in accordance with lawful procedures and fairness.

R. v. Oakes (1986), 24 C.C.C. (3d) 321 (SCC) at pp. 334 - 335

16. The components of s. 11(d) are protected under s. 7 of the Charter as principles of fundamental justice. As the S.C.C. stated in Oakes, supra at p. 333:

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IV. UNCONSTITUTIONAL EFFECT OF THE IMPUGNED LEGISLATION

A. Unequal application and benefit of law

17. The effect of s. 76.1 and 76.2 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.

 
18. Not all communities in British Columbia are subject to the use of photo radar. Municipalities are permitted to opt out of the use of photo radar in their jurisdictions.

 
19. The legislation creates several distinct laws and procedures solely for cases where the alleged evidence of speeding is obtained by photo radar:

1. S. 76. 1 permits an owner to be found liable for the offence of speeding only if the evidence was obtained by a photographic radar;
2. S.76.2(2) permits an enforcement officer to provide evidence by completing and signing a certificate only where the evidence of the offence was gathered through the use of a speed monitoring device, i.e., photo radar.
3. s.76.2(3) allows the Crown to introduce the Certificate as evidence of the facts stated in the certificate only where the evidence is obtained by photographic radar.
4. s. 76.2(4) requires the Accused to obtain leave of the court to require the attendance of the enforcement officer for the purposes of cross-examination only where the evidence is obtained by photographic radar.

20. The impugned legislation allows the Crown to submit the following Certificates of Evidence to prove all the essential elements of the offence of speeding including:
1. the photograph of the car;
2. identification of the vehicle license plate;
3. the owner of the vehicle who is presumed to be guilty of the offence unless the owner proves otherwise;
4. the date and time of the alleged act of speeding;
5. the speed of the vehicle;
6. the model of photographic radar device used and description of device operated by the enforcement officer;
7. a description of how the device operates;
8. testing of the device performed by the enforcement officer;
9. the accuracy and validity of the testing procedures; and
10. the accuracy of the information captured by the photographic radar device.

(See: Certificate of Enforcement Officer Photographic Evidence and the Certificate of Enforcement Officer Qualified Operator; Certificate of I.C.B.C.)

21. In contrast, where an accused is charged with speeding under s. 151(1) and a radar device other than photo radar is used, the Crown must prove the actus reus of the offence beyond a reasonable doubt through in court testimony. An enforcement officer is called to give evidence to prove the alleged act of speeding, the identity of the driver and the motor vehicle, the circumstances surrounding the testing, use and accuracy of the radar device, and other factual circumstances he or she may have witnessed. 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.

 
22. Where an Accused is charged with speeding under s. 151(1) of the MVA and the alleged evidence of the offence is obtained by photo radar, the Crown is permitted to adduce all the evidence necessary to convict the Accused entirely through hearsay evidence. The hearsay evidence is set out in the Certificates of the Enforcement Officer. The Crown is not required to adduce evidence through in court testimony. The Accused does not have a prima facie right to cross-examine the enforcement officer and must obtain leave of the Court to obtain a right to cross-examine the enforcement officer.

 
23. In addition, where the alleged evidence is obtained by Photo Radar the Crown is not required to prove the identity of the person who committed the alleged act of speeding. Section 76.1 permits the Crown to prove ownership of the vehicle and places a reverse onus on the Accused to prove that another person was driving the motor vehicle and that the owner exercised reasonable skill and diligence in entrusting the motor vehicle to that person.

 
24. It is submitted that it is a principle of fundamental justice under s. 7 and procedural fairness under s. 11(d) of the Charter that persons charged with the same offence must be prosecuted under the same laws and be granted the same procedural rights and protections.

 
25. The MVA provisions permit the State to create different substantive and procedural rules for the same offence depending upon how the State chose to enforce the law and obtain evidence of the offence. It is submitted that this must be found to violate principles of fundamental justice and procedural fairness protected under s. 7 and s. 11(d) of the Charter.

B. Standard of Proof - Certificate Evidence

26. All of the evidence submitted through the Certificates of Enforcement Officer constitute out of court statements which would, in the absence of the impugned legislation, be inadmissible under the hearsay rule of evidence.

 
27. The legislation requires the Court to admit out of court statements of the Enforcement Officer as evidence of the truth of the facts set out in the statements and thereby offends the fundamental common law rule that hearsay evidence is not admissible to prove the truth of the facts asserted.

 
28. The rationale for refusing to admit hearsay evidence is that

1. 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, not subject to cross-examination or a charge of perjury;
2. admission of hearsay evidence results in a decision based on secondary evidence which is weaker evidence than the best evidence available;

Sopinka et. al. Eds. The Law of Evidence in Canada, 1992 at pp. 157 - 158
29. At common law, hearsay evidence may exceptionally be admitted on the basis of necessity and reliability. In this case, the enforcement officer is available to testify and it is not necessary to adduce the evidence through out of court statements.

 
30. Courts in other jurisdictions have admitted some elements of a motor vehicle offence to be proven through hearsay evidence but only where the enforcement officer is called to establish the reliability and trustworthiness of the hearsay evidence.

R. v. Chow (1991), 68 C.C.C. (3d) 190 (Alta. C.A.)

R. v. Halliday (1992) 19 M.V.R. (3d) 7 (Alta. Prov. Ct.)

31. In Chow, supra, the Court concluded that in court testimony must be given by an enforcement officer to guarantee the trustworthiness of the radar instrument used to obtain the evidence of speeding.
Chow, supra.
32. In Halliday, supra, the Alberta Provincial Court found that evidence that a Multinova radar device tested itself and reported it was functioning properly was not sufficiently reliable to prove the accuracy of the device even where the enforcement officer was called to give evidence about the surrounding circumstances.
Halliday, supra, at pp. 9 - 11
33. In this case the impugned provisions allow hearsay evidence to be admitted to prove all elements of the offence, including the ability of the photo radar device to accurately record the evidence of speeding, without any guarantees of the trustworthiness or reliability of that evidence. It is submitted that this violates principles of fundamental justice under s. 7 of the Charter and the right under s. 11(d) of the Charter to be presumed innocent until proven guilty in a fair hearing.

C. Burden of Proof

34. It is submitted that the MVA provisions violate all three components of the presumption of innocence set out by the S.C.C. in Oakes, by relieving the Crown of the burden of proving the actus reus of the offence of speeding in accordance with fair and lawful procedure.

 
35. To prove the actus reus of the offence of speeding the Crown must prove the essential elements of the offence which include:

1. the identity of the driver of the motor vehicle alleged to have been speeding;
2. the date and time of the alleged act of speeding;
3. the location of the alleged act of speeding;
4. the speed of the motor vehicle;
5. the model of device or method used to record the speed of the vehicle;
6. the proper operation of the device;
7. the capability of the device to accurately record the speed of the vehicle; and
8. the device was tested for accuracy prior to its use and was in proper working order to accurately record the speed of the vehicle in question.

36. The impugned legislation permits the Crown to submit Certificates of an Enforcement Officer to prove all of the elements of the actus reus set out above, including the accuracy of the radar device.

 
37. As the S.C.C. affirmed in Wholesale Travel, supra, at 184 that even for non-criminal regulatory offences, the presumption of innocence set out in s. 11(d) is not "meaningless"...The Crown must prove the actus reus of regulatory offences beyond a reasonable doubt."

 
38. Where legislation states that certain documents are evidence of the facts contained therein and do not contain the words "prima facie evidence" of the facts, it creates a mandatory rather than a permissive presumption of guilt beyond a reasonable doubt.

R. v. Beals (1991), 68 C.C.C. (3d) 277 at pp. 282 - 283

39. A mandatory presumption of guilt is created where, in the absence of the Accused presenting evidence to the contrary of the Crown's statutorily presumed evidence, the judge must convict the Accused.
Beals, supra, at p. 283
40. Section 76.1(3) states that the Certificate of the Enforcement Officer is evidence of the facts set out in the Certificate. The facts in the Certificate include all the facts necessary to convict the accused, including the alleged accuracy of the photo radar device. It is submitted that this provision creates a mandatory presumption of guilt. In the absence of the Accused presenting evidence to the contrary, it is submitted that the judge must convict the Accused.

 
41. 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 reliabilty of that evidence. This violates principles of fundamental justice and all three components of the presumption of innocence set out in Oakes, supra.

D. Rights to Cross Examination and Full Answer and Defence

42. In criminal proceedings witnesses must generally testify in court and be subject to cross-examination. The opportunity to cross-examine witnesses is a principle of fundamental justice and is critical to the fairness of an accused's trial.
Law of Evidence, supra, at pp. 821 - 823;

R. v. Osilin (1993), 86 C.C.C. (3d) 481 at 516 - 518 S.C.C.)

43. Section 76.2(4) requires the Accused to obtain leave of the Court to compel the attendance of the enforcement officer who signed the certificates for purposes of cross-examination.

 
44. It is submitted that the right to hear in-court testimony annd the right to cross-examine the enforcement officer is fundamental to the ability of the Accused to present a full answer and defence.

 
45. It is further submitted that the combined effect of the impugned legislation is to deprive the Accused of the right to make a full answer and defence. Persons charged with the offence of speeding under photo radar legislation are provided with a certificate which on its face establishes the guilt of the Accused before stepping into a court of law and are not as of right permitted to test the validity of that Certificate evidence through cross-examination.

 
46. It is no answer to assert that in these circumstances, the Accused may cross-examine the enforcement officer by obtaining leave of the Court. This places the onus on the Accused to establish a right to cross-examination and to present a full answer and defence and thereby violates both s. 7 and 11(d) of the Charter.

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V. SECTION 1 OF THE CHARTER

47. It is submitted that the MVA provisions cannot be saved under s.l of the Charter.

 
48. It is only in exceptional circumstances that a right guaranteed under s. 7 of the Charter will be sacrificed for administrative expediency and only in cases arising out of war, natural disasters, epidemics and the like.

Reference re: s. 94(2) of the Motor Vehicle Act (B.C.) 1985), 23 C.C.C. (3d) 289 (S.C.C.) cited in Beals, supra at p. 284.
49. The objective of expedient prosecutions for the offences of speeding only where photo radar is used is not sufficiently important to override the constitutionally protected rights violated in this case.

 
50. Even if the legislation is found to be of sufficient importance to override constitutional rights, the means chosen to meet this objective are not reasonable and justified in that:

1. the means chosen by the legislature are not rationally connected to its objective. The impugned provisions affect the manner in which the Crown prosecutes for the offence of speeding only in those cases where photographic radar is used. The objective of deterrence or expediency is not rationally connected to this legislation which applies only for prosecutions in which photo radar evidence is used;
2. the means chosen by the legislature do not limit the Charter rights as little as possible. The provisions effectively eliminate the Crown's burden of proof, permit the whole of the Crown's case to be proven through hearsay evidence without any procedural safeguards to ensure the reliability of that evidence; the legislation permits the entirety of the Crown's case to be proven through hearsay evidence without any procedural safeguards to ensure the reliability of that evidence;
3. the legislation takes away the absolute and fundamental right of an accused to hear the Crown's evidence through in court testimony and to test the Crown's evidence through cross-examination.

51. It is submitted that the legislature could have impaired the rights of the accused less by allowing part of the State's case to be proven by hearsay evidence, but only where viva voce evidence is introduced to establish the trustworthiness and reliability of the Certificate evidence.

 
52. This legislation simply goes to far and deprives the accused of the right to be presumed innocent until proven guilty, and to make full answer and defence in a prosecution carried out with lawful and fair procedures. In these circumstances, the legislation cannot be saved under s. 1 of the Charter.

All of which is respectfully submitted,

Doug Stead, Representative for
Tri-M Systems Inc.