R. v. Shymanski Date:, 2013 BCPC 130

Citation: R. v. Shymanski Date: 20130530 2013 BCPC 0130 File No: AH46091609 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VICTOR SHYMANSKI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. T. Livingston Counsel for the Attorney General: Mr. B.A. Mackey Counsel for the Accused: Mr. J. Drayton Place of Hearing: Kamloops , B.C. Date of Hearing: January 4, 2013 and March 8, 2013

Date of Judgment: May 30, 2013 [1] Victor Shymanski is charged with failing to obey a traffic control device pursuant to s. 125 of the Motor Vehicle Act. I found attrial that the Crown had proved the case beyond a reasonable doubt. The matter is now before me pursuant to the ConstitutionalQuestion Act s. 8 for relief under s. 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Mr. Shymanski’s rightsunder s. 7 of the Charter had been violated because the traffic control device Regulation (B.C. Reg. 26/58) at the base of the s. 125 ticketis vague and unenforceable. [2] Specifically, Mr.

Shymanski seeks a declaration that the truck brake check demands in the Motor Vehicle Act Regulation B.C.Reg. 26/58 are constitutionally vague and unenforceable. The crux of the argument is that a driver must “inspect brake system” but thereis no description or definition in the Regulation or the Motor Vehicle Act of what it means to inspect a brake system. The AttorneyGeneral argued this court has no jurisdiction to grant declaratory relief.

Defence argued if I had no such jurisdiction then I should granta judicial stay of proceedings. [3] The Crown at trial brought a preliminary application which I adjourned to be heard with the Constitutional Questionargument. Mr. Livingston argued that Mr. Shymanski did not meet the test for eligibility for a constitutional challenge to the sectionbecause there was no risk to his life, liberty or security of his person. The Attorney General responded to the application pursuing thatargument, among others. [4] I have been referred to and have considered the following authorities: R. v.

Tri-M Systems Inc., (BC SC),[1998] B.C.J. No. 2702 (B.C.S.C.); R. v. Richard, (SCC), [1996] S.C.J. No. 43; R v. Dillon, 2003 BCSC 1420, 2003 B.C.S.C. 1420; R. v. Sull, (2003) 2003 BCCA 321 , 176 C.C.C. (3d) 46 (B.C.C.A.); R. v. Mordo, (1997), 30M.V.R. (3d) 320 (B.C.C.A.); R. v. Layne (1988) 4 W.C.B. (2d) 163; Johnson v. British Columbia, (Securities Commission), [2001]B.C.J. No. 2103; R. v. Geraghty, Vancouver Registry CA 10262; R. v. Braybrook, [1989] B.C.J. No, 1481; R. v. Blackburn, 1980 CanLI455 (BCCA); R. v. Watch, (BCSC); R. v. Harper, (BC CA), 1989 CarswellBC 450, 53 C.R. (3d)185, 44 M.V.R. 313; R. v.

Boyde, January 13, 1988, County Court; R. v. Quinn, (BCCA); R. v. Hoem, 2006 BCSC1530 ; London (City) v. Polewsky, (ONCA); R. v. Kanda, 2008 ONCA 22 ; Levis (City) v.Tetreault, Levis (City) v. 2629-4470 Quebec Inc., 2006 SCC 12, [2006] 1 SCR 420; R. v. Raham, 2010 ONCA 206 ; R. v. NovaScotia Pharmaceutical Society, (SCC), [1992] 2 SCR 606; Buhlers v. British Columbia (Superintendent of MotorVehicles), 1999 BCCA 114, [1999] B.C.J. No. 408; Ontario v. Canadian Pacific Ltd., (SCC), [1995] S.C.J. No. 62,[1995] 2 S.C.R. 1031; Phillips v.

Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995]2 S.C.R. 97; R. v. Jaycox, 2011 BCSC 662, [2011] B.C.J. No. 934; R. v. Vukelich, (BC CA), [1996] B.C.J. No. 1535, 108 C.C.C. (3d) 193 (C.A.); Shewchuk v. Ricard (B.C.C.A.), (BC CA), [1986] B.C.J. No. 335, 28 D.L.R. (4th) 429;United States of America v. Ranga, 2012 BCCA 81, [2012] B.C.J. No. 328. [5] I have also been referred to and have considered sections of the Motor Vehicle Act, R.S.B.C. 1996

Chapter 318

Part 3 and theOffence Act, R.S.B.C. 1996

Chapter 338

Section

Section 125 of Motor Vehicle Act provides: 125 Unless otherwise directed by a peace officer or a person authorized by a peace officer to direct traffic, every driver of a vehicle andevery pedestrian must obey the instructions of an applicable traffic control device. [6] There is nothing vague or unenforceable about the language of this section. It is clear and mandatory. However, it has verybroad application, including to the Regulation in question. [7] At first blush, because there are prescribed fines for failing to check brakes at a brake stop, this

section does not seem to apply. For reasons I will come to, this is not the case. [8] The Offence Act, R.S.B.C. 1996

Chapter 338

Section 4 provides: 4 Unless otherwise specifically provided in an enactment, a person who is convicted of an offence is liable to a fine of not more than$2 000 or to imprisonment for not more than 6 months, or to both. [9]

Section 82 of the Offence Act provides as follows: 82

(1) Subject to subsection (7), but despite any other provision of this Act, any other Act, regulation, municipal bylaw or order made bya justice, a justice must not, except under the Small Claims Act, order that a person be imprisoned merely because he or she defaults inpaying a fine. [10] Instead, a Certificate for the unpaid fine amount may be registered with the Supreme or Provincial Courts and has the sameeffect as if it were a judgment of the Supreme Court for the recovery of a debt. This

section only applies to non-payment of a fine,however. It is not a prohibition against imposing a jail sentence as a penalty for the offence itself.

[11] The Offence Act Violation Ticket Administration and Fines Regulation 89/97 and amendments thereto, provide that the fine forfailing to obey traffic control devices pursuant to s. 125 of the Motor Vehicle Act is $121 unless it is paid within 30 days, in which case itis $96. The Victim Fine Surcharge is $16. There are also reduced amounts payable of $105 and $80, respectively, which do not apply tothis case. This is a

schedule only and does not purport to fetter the court’s jurisdiction to impose another penalty. [12] Traffic control device is defined in the Motor Vehicle Act as follows: Means a sign, signal, line, metre, marking, space, barrier or device, not inconsistent with this part, placed or erected by authority of theMinistry responsible for the administration of the Transportation Act, the counsel of a municipality or the governing body of a TreatyFirst Nation or a person authorized by any of them to exercise that authority. [13] The Motor Vehicle Act Regulations provide diagrams of the various signs including the truck brake check signs.

Thedescriptors in the Regulations provide as follows: Truck Brake Check (Regulatory): This sign mandates trucks to enter a brake check area to inspect brake systems. Signs may be displayed with or without a dashed border. Trucks Stop Here Check Brakes (Regulatory): This sign is used in brake check areas to instruct truck drivers to inspect brake systems. The signs may be displayed with or without adash border. [14] In both cases, the brake check refers to an inspection by the driver.

However, neither “brake check” nor “brake inspection” aredefined for the purposes of s. 125 of the Motor Vehicle Act or its Regulations.

There are a number of resources to refer to for thepurposes of determining what the brake requirements are, and guides for mechanics and vehicle inspectors to perform their inspections.There is no evidence before me of what the legislation requires a driver to do. [15] Retired Constable Dennis Pryhitko formerly of the Commercial Vehicle Safety Enforcement Unit testified that if a driver cancheck the functionality of the brakes without getting out of the vehicle, it meets the requirements of the law. He testified that if a drivercomes into the brake check and comes to a complete stop, that meets the requirement.

If the driver does not hear any air leaking, thenthe brakes are functioning. The stop must be a complete stop. In other words, a rolling stop or near stop does not meet therequirements. The rationale behind the requirement to stop is that safety is paramount. I accept that this is the standard ConstablePryhitko learned as a driver many years ago and the standard he applied as a constable. It is a standard which he said may not be taughtnow and it is not proscribed in the legislation. The standard applied by each CVSEU constable may vary according to training. [16] Mr. Drayton argued on behalf of Mr.

Shymanski that I must first do an analysis of whether this is an absolute liability or strictliability offence. If it is a strict liability offence, then I am duty bound to consider the Charter. This is because upon receiving a ticket,there is an option to pay the ticket and end the matter or plead not guilty and go to trial. Upon conviction, Mr. Drayton argued, the courtneed not impose the schedule. The court can impose a higher fine and, in theory, impose imprisonment. ABSOLUTE OR STRICT LIABILITY OFFENCE: [17] Mr.

Drayton argued that before I could embark upon the analysis of whether this is a strict or absolute liability offence, I had tofirst determine what the law demands of a driver facing a “brake check” sign. The evidence from Constable Pryhitko at trial was that hewas satisfied if the driver comes to a complete stop. He expects a driver to come to a stop and to listen for air leaking. Mr. Draytonargued that a driver could conceivably also be expected to go through the six steps set out in advisory signs posted on other routes beforeother brake checks. An example of such an advisory sign is admitted in evidence.

He also queried what the driver was to do if a faultwas found on the brake system. [18] Mr. Shymanski is not charged with failing to properly check or inspect his brake system. He is charged with failing to complywith the signs at all. The question arises then whether there is a difference between whether a truck driver simply drives past the brakecheck without stopping, or pulls into the brake check but does nothing to inspect the brake systems. Both are a failure to comply withthe same traffic control device.

Indeed, the brake check advisory signs which provide instructions to truck drivers on other routes withrespect to how to inspect the brake systems are not mandatory signs. As Mr. Drayton argued, no penalty can arise from a failure tocomply with the steps recommended in those advisory signs. There are no criteria as to what the minimum requirements are for a brakecheck set out in the signs, posted at the brake checks or otherwise provided for in the Act or Regulations. [19] Both counsel agree that the test to determine absolute or strict liability offences is found in R. v. City of Sault Ste. Marie, S.C.C.

The Supreme Court of Canada defined strict liability offences as ones for which there is no necessity for theprosecution to prove the existence of mens rea; the actus reus prima facie imports the offence; and the accused can avoid liability byproving that he took all reasonable care. Such offences generally include regulatory or public welfare offences.

The court defined suchoffences as ones which typically include such words as “wilfully”, “with intent”, “knowingly”, or “intentionally”. [20] An absolute liability offence, on the other hand, is one where the legislature makes it clear that guilt would follow proof merelyof the act. Regulatory pattern, subject matter of the legislation, importance of the penalty and precision of language could be taken into

consideration in determining whether an offence is an absolute liability offence. [21] When the Supreme Court of Canada revisited Sault Ste. Marie in Levis v. Tetreault, supra, it reaffirmed the test set out in SaultSte. Marie having revisited its own decision in R. v. Pontes, (SCC), [1995] 3 S.C.R. 44. There remains, therefore, astrong presumption in favour of “strict liability offence”. [22] The decisions offered by Mr. Drayton have categorized various offences as follows:

a) speeding is an absolute liability offencein British Columbia (R. v. Harper, supra); and in Ontario (R. v. Raham, supra);

b) disobeying a no-left turn traffic sign is an absoluteliability offence (R. v. Quinn, supra);

c) failing to stop for a red light in British Columbia is an absolute liability offence (R. v. Hoem,supra);

d) failing to obey a sign is an absolute liability offence in Nova Scotia (R. v. Higgins, (1981), (NS CA), 60C.C.C. (2d) 246 N.S.C.A. as referred to in R. v. Watch, supra, at para. 26;

e) overweight commercial vehicles result in strict liabilityoffences (R. v. Laverne E. Boyde, supra);

f) driving a car containing a child not wearing a seatbelt is a strict liability offence (R. v.Kanda, supra);

g) stunt driving is a strict liability offence (R. v. Raham, supra). [23] In fact, in R. v. Watch Justice Finch considered several cases and determined that failure to wear a motorcycle helmet was astrict liability offence as is driving while not insured. He opines that the decision of R. v. Gillis (1974), (NS CA), 18C.C.C. (2d) 190 where speeding was found to be an absolute liability offence may, in light of Sault Ste. Marie, have been wronglydecided. [24] In applying the Sault Ste. Marie decision to this case, I find as follows: (

a) The regulatory pattern: The Motor Vehicle Act and its Regulations as a whole create a code of rules governing all drivers; and a codeof offences for when the duties and obligations of drivers are breached. The legislation as a whole is for the “safe and orderly conduct oftraffic on public streets” (Watch, supra at para. 18). B.C. Reg. 26/58 focuses on the safety need of ensuring the brake systems areoperational for truck drivers travelling on the highways. The Regulation must be read together with s. 125. While whether a driverfailed to stop may not be subject to much

interpretation, the Regulations, s. 125 and the signs themselves mandate that the driver not onlystop but check the brakes. Due to the lack of definition or description of what that brake check would entail, the regulatory provisionsinvite a broad application and broad

interpretation of compliance. That offers a defence of due diligence. (

b) Subject matter of the litigation: As stated in Watch, supra, the subject matter of the legislation is to prescribe a code of conduct formotorists for the orderly control of traffic as its main object and purpose; an integral part of which is the safety of the public. JusticeFinch’s comments regarding the outcome of Gillis, supra, and his comments regarding the subject matter of the Act supports thepresumption of strict, as opposed to absolute, liability for this offence. (

c) The importance of the penalty: As I will come to further in this decision, I find that although the Violation Ticket Administrationand Fines Regulation 89/97 prescribes a fine, a person who defends such a ticket may be sentenced to a greater penalty once the matter isbefore the court. Consequently, while it may be highly unlikely, conviction could result in loss of liberty for up to six months. Thissupports the presumption that the legislation did not intend to create an absolute liability for an offence under s. 125 and B.C. Reg. 26/58. (

d) The precision of the language used: The language in s. 125 is clear and mandatory but its application is broad. Similarly,compliance with B.C. Reg. 26/58 is undefined and may be met in varying degrees. It is clear that the defence of due diligence isavailable to any owner who is charged with failing to comply with B.C. Reg. 26/58. The complication in this case arises because apartfrom the fact that brake check signs happen to be the traffic control device in question, Mr. Shymanski is not otherwise charged withfailing to comply with that Regulation. He is charged with failing to obey a traffic control device because he did not stop at all. [25]

Section 125 cannot be read in a vacuum. It applies to all manner of traffic control devices, arguably including those which havetheir own sections in the Motor Vehicle Act. The sign (and therefore B.C. Reg. 26/58) which mandates that a truck must stop for thedriver to perform a brake inspection constitutes a strict liability offence where the driver fails to comply with that sign, becausecompliance is found in varying degrees.

Section 125 has such a broad application to all manner of traffic control devices that it cannotconstitute an absolute liability offence. The language is clear but the application is broad. A breach of s. 125 must be a strict liabilityoffence given that broad application. [26] Similarly, because the Regulation which mandates a brake inspection be performed at a brake check, and given that thelegislation does not give a corresponding direction as to what that brake inspection would consist of, failure to comply with that trafficcontrol device must be a strict liability offence.

The lack of precision in the language of that Regulation makes it clear that a duediligence defence would be available. The question remains what must a driver do to comply with that traffic control device. [27] I am therefore satisfied that, given its broad application, a breach of s. 125 of the Motor Vehicle Act is a strict liability offence. Iam also satisfied that, given the imprecise language of the legislation as a whole respecting compliance with inspection of brake systems,a breach of B.C. Reg 26/58 is a strict liability offence.

VUKELICH HEARINGS: [28] The Attorney General argued that a Vukelich hearing ought to have been conducted before the court embarked upon argumentwith respect to the constitutional validity of this legislation. The argument is ancillary to the substance of the issues before me. Vukelich hearings are, essentially, a Voir Dire that may be required at the request of the Attorney General or on the court’s motion,where the accused must establish he or she has met a threshold establishing a sufficient foundation for a Charter application.

In such ahearing, the accused states the grounds for the Charter application and the basis upon which the court could grant a Charter remedy. The Attorney General could produce no case that said a Vukelich hearing is available for a constitutional challenge but argued that therewas no principled reason why one could not be conducted. One principled reason that a hearing would be unnecessary in a case such asthis is that the Constitutional Question Act has its own procedures by which a constitutional challenge must be advanced.

This shouldprovide all that is required in order to both focus the hearing and put the relevant parties on proper notice. [29] A Vukelich hearing may well be available for a constitutional challenge but I do not need to decide that question in this case

because I find that not only was there adequate notice of the challenge in question, but the Attorney General did not seek a Vukelichhearing until final argument was underway. VAGUE AND UNENFORCEABLE: DECLARATORY RELIEF: [30] The Attorney General argued that the Provincial Court is not empowered with the authority to issue declarations ofconstitutional invalidity pursuant to s. 52 of the Constitution Act.

He argued that the Provincial Court, as a statutory court, has nodeclaratory jurisdiction, but it does have jurisdiction to interpret and apply the constitution for the resolution of legal issues it isempowered to decide. [31] Mr. Drayton did not have a fulsome argument to offer in response. He argued that if I was satisfied I did not have the authorityto make such a declaration, then I should grant relief pursuant to the Charter and enter a judicial stay of proceedings. [32] The Attorney General offered the decisions of Shewchuk v. Ricard, (BC CA), 28 D.L.R. (4th) 429, (B.C.C.A.)and R. v.

Jaycox, 2011 BCSC 81 , 2011 B.C.S.C. 81. The Shewchuk decision was with respect to affiliation proceedingsinitiated in the Provincial Court pursuant to provisions of the Child, Paternity and Support Act. The Provincial Court Judge dismissed theproceedings finding that the Act was of no force and effect because it violated s. 15 of the Canadian Charter of Rights and Freedoms. Inthat case, the three justices on appeal unanimously agreed that the judge did not exceed her jurisdiction in considering theconstitutionality of the provincial act.

MacFarlane, J.A. held at page 8: It is clear that the power to make general declarations that enactments of Parliament or of the legislature are invalid is a highconstitutional power which flows from the inherent jurisdiction of the superior courts.

But it is equally clear that if a person is before a Court upon a charge, complaint, or other proceeding properly within the jurisdiction ofthat Court then the Court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force andeffect by reason of the provision of the Canadian Charter of Rights and Freedoms, and to dismiss the charge, complaint or proceeding. The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legalquestion properly before the Court.

It does not trench upon the exclusive right of the superior courts to grant prerogative relief, includinggeneral declarations. The answer to the first question is that Judge Auxier did not exceed her jurisdiction in deciding that the Child Paternity and Support Actwas of no force and effect. [33] This decision gives this court the power to find legislation is of no force and effect if the matter is properly before this court. However, it appears the only remedy is to dismiss the charge, complaint or remedy. [34] This takes me to the decision of R. v. Jaycox. I quote from paragraphs 20 to 22: 20

Section 52 of The Constitution Act, 1982, as relevant, provides:

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is,to the extent of the inconsistency, of no force or effect. 21

Section 52 of The Constitution Act, 1982 does not establish a rule of absolute nullification with respect to unconstitutional laws. Acourt that concludes a law violates the Charter, and concludes the violation is not justified by s. 1, is tasked with determining anappropriate remedy. In R. v. Schachter, (SCC), [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1; and R. v.

Vriend, (SCC), [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385, the Court noted the long-standing and "common sense" practice of courtsemploying techniques such as severance and reading in to ensure constitutional rights are vindicated while at the same time respectingand preserving legislative purpose: Schachter at paras. 25-32 and 37-43. These techniques permit courts to preserve legislation whereonly portions are inconsistent with the Constitution, by adding or excising language to cure the defect.

The selection of the appropriateremedy is influenced by several factors, which are informed by the "twin guiding principles" of respect for the role of the legislature andthe purposes of the Charter: Schachter at para. 77. 22 The authorities relied on by the respondent, Regina v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, 18D.L.R. (4th) 321; Regina v. McPherson, (MB KB), [1994] 2 W.W.R. 761, 111 D.L.R. (4th) 278 (Man. Q.B.);Shewchuk v. Ricard, (BC CA), 28 D.L.R. (4th) 429, [1986] 4 W.W.R. 289 (B.C.C.A.); Alberta v. B. (K.), 2000 ABQB976, 196 D.L.R. (4th) 151; Regina v.

Thawer, 2003 ABPC 220, 350 A.R. 51, do not suggest that provincial court trial judges aredeprived of this remedial jurisdiction. Rather than imposing a jurisdictional limitation on the applicability of s. 52, what is required is asufficient factual foundation to engage a court's jurisdiction to adjudicate the constitutionality of a legislative provision. The ProvincialCourt, as a statutory court, has no declaratory jurisdiction, but it does have jurisdiction to interpret and apply the Constitution for theresolution of the legal issues it is empowered to decide.

[35] Therefore, while I may have jurisdiction to consider the constitutional validity of legislation before me, I must first attempt toread in constitutional validity before finding that a particular piece of legislation is of no force or effect with respect to the charge and theperson before me. If I find it is of no force and effect, the remedy in this case is to dismiss the charge or enter a judicial stay ofproceedings. CHARTER RELIEF: [36] Both counsel agreed that I have jurisdiction to grant a remedy pursuant to the Canadian Charter of Rights and Freedoms if Ifind that Mr.

Shymanski’s rights under s. 7 of the Charter have been violated. Counsel are also agreed that there is no constitutionalright to drive on Her Majesty’s highways. The Attorney General cited Buhlers, supra for that proposition. Mr. Drayton did not proceedon the basis of a constitutional right to drive. [37] Mr. Drayton argued that because there is a prospect of imprisonment, however remote that may be, I am bound to consider theCharter. He sited for that proposition the decision of R.

Geraghty, supra, and quoted from pages 17 and 19 as follows: That brings me to the question of the potential for imprisonment to be imposed as a consequence of a conviction under s. 76 of the MotorVehicle Act. The power of the Attorney General to prescribe a fine for the contravention of an enactment, as described in s. 14(9) of theOffence Act, is limited.

It is restricted to the proceeding described in s. 14(5) of the Act, which provides that a person who receives aticket, and who wishes to plead guilty to the offence set out therein, may pay the prescribed fine without the necessity of appearingbefore a justice at the time and place specified in the ticket. Where a person chooses to dispute the allegation contained in the ticket, s.14(5) of the Act has no application. In such a case a trial is held before a justice. At that trial the ticket constitutes the information uponwhich the proceedings are based.

At the conclusion of the trial, if a conviction is recorded, the power of the justice to sentence is foundin s. 73 of the Offence Act... A person against whom proceedings are commenced by ticket, as opposed to an information sworn in the traditional form followed by asummons or a warrant, has the advantage of being able to dispose of the matter by way of plea, without the necessity of appearing in anycourt, for which purpose, and for which purpose alone, the Attorney General is empowered to designate a fine as the sole penalty.

But, aperson charged with an offence under s. 76 of the Motor Vehicle Act, who pleads not guilty, is subject to the same potential to beimprisoned on conviction whether the proceedings are commenced by way of a ticket or an information simpliciter. [38] I was also provided with an excerpt from R. v. Mordo, supra. Bearing in mind that this is not the full decision, but an excerptfrom the annotated British Columbia Motor Vehicle Act, that excerpt provides as follows: The appellant was charged on a traffic violation ticket for excessive speeding, which set out a prescribed fine of $150.

The appellantpled not guilty and on conviction was prohibited from driving for four months, pursuant to s. 90 [now s. 98] of the Act. The appellantargued that it was absurd to interpret s. 90 to permit the imposition of a higher penalty, i.e., the driving prohibition, should the accusedplead not guilty. Held, the legislative intent was clear and the alleged absurdity did not arise. When an offence alleged on a trafficviolation ticket is disputed a prohibition is not automatic, but the judge has a discretion to impose a prohibition pursuant to s. 90.

Theaccused is not penalized for pleading not guilty, he or she is penalized for being found guilty. If the ticket had not been disputed, it wasopen to the Superintendent of Motor Vehicles to impose a driving prohibition pursuant to s. 86 [now s. 93]. The appellant’s argumentwas a veiled attack on the constitutionality of s. 90 which was not open for him since it had not been raised in the courts below and nonotice had been given. [39] Furthermore, there is no specific penalty for violation of s. 125. This is because s. 125 is so broad in its application to so manydifferent traffic control devices.

As a result, Mr. Shymanski faces a potential fine of $2,000.00 and six months imprisonment under theOffence Act despite the prescribed fine of $121.00 for the breach of the Regulation. The Attorney General argued that s. 7 of theCharter did not apply because the life, liberty and security of the person of Mr. Shymanski was never at risk. Absent the Offence Actprovision, I agree with the Attorney General that there are no prospects that Mr. Shymanski could be sentenced to imprisonment and hewould have no remedy to pursue under s. 7 of the Charter. Practically speaking, it is highly unlikely that Mr.

Shymanski would besentenced to imprisonment for this offence. While it is unlikely that the court would impose a period of imprisonment for such a trafficviolation, unlikeliness is not the test to be applied under Geraghty. [40] I am satisfied that I am compelled to address the Charter issue in this case. JUDICIAL ECONOMY: [41] The Attorney General provided the decision of Phillips v. Nova Scotia (Commission of Inquiry into the Westray MineTragedy), (SCC), [1995] 2 S.C.R. 97 on the concept of judicial economy: 7 In Attorney General of Quebec v.

Cumming, (SCC), [1978] 2 S.C.R. 605, an issue arose concerning theinterpretation of the word "divorce" in the Quebec Civil Code and whether an award of alimony should have been made. Another issuewhich arose concerned the constitutionality of the provincial legislation in terms of division of powers.

Pigeon J., for the Court, held atpp. 610-11: Having come to the conclusion that the word "divorce" in the new art. 212 of the Civil Code means a divorce granted by a court and doesnot refer to a dissolution of marriage granted by private Act, it is unnecessary to consider the other reason, which found favour with some

of the judges of the Court of Appeal.... Save in exceptional circumstances, it is not desirable to express an opinion on a question of law which it is not necessary to decide inorder to dispose of the case at hand, especially when it is a constitutional question. [Emphasis added.] 8 In The Queen in Right of Manitoba v. Air Canada, (SCC), [1980] 2 S.C.R. 303, this Court considered theconstitutionality of the Manitoba Retail Sales Tax Act as it applied to tax Air Canada on overflights through Manitoba air space. LaskinC.J. held that the Act was ultra vires.

He then stated at p. 320: In view of this conclusion, I find it unnecessary to deal with the question whether the tax (even on the assumption that it is within theProvince) is a direct tax. Although the Court ordered a rehearing with particular reference to this question, I think it preferable to avoiddealing with it, in conformity with the general rule in constitutional cases not to engage issues which do not squarely arise for decision.[Emphasis added.] 9 The policy which dictates restraint in constitutional cases is sound.

It is based on the realization that unnecessary constitutionalpronouncements may prejudice future cases, the implications of which have not been foreseen. Early in this century, Viscount Haldane inJohn Deere Plow Co. v. Wharton, (UK JCPC), [1915] A.C. 330, at p. 339, stated that the abstract logical definition ofthe scope of constitutional provisions is not only "impracticable, but is certain, if attempted, to cause embarrassment and possibleinjustice in future cases". 10 This is a practice that has been generally followed by this Court before and since the Charter. In Winner v.

S.M.T. (Eastern) Ltd., (SCC), [1951] S.C.R. 887, Taschereau J. (as he then was) stated, at p. 915: As the present appeal is not a reference, this Court should not, I think, be called upon to answer questions which are not essential for thedetermination of the case. 11 In Law Society of Upper Canada v. Skapinker, (SCC), [1984] 1 S.C.R. 357, Estey J. stated, at p. 383: The development of the Charter, as it takes its place in our constitutional law, must necessarily be a careful process.

Where issues do notcompel commentary on these new Charter provisions, none should be undertaken. [42] The Attorney General argued that the court can dispose of this case finding that Mr. Shymanski failed to obey a traffic controldevice while refraining from deciding what would or would not be a satisfactory inspection of brakes in circumstances where such aninspection was not attempted at all. [43] On this point I agree with the Attorney General. Had Mr.

Shymanski pulled into the brake stop and attempted to comply withthe signage in any way, I would embark upon a determination of whether the Regulation requiring such an inspection was vague andunenforceable. However, Mr. Shymanski made no such attempt to comply. He drove by the brake check without any attempt atcompliance. With no compliance or attempt at compliance, Mr. Shymanski cannot argue that he exercised due diligence or that theregulatory signage was vague and unenforceable. Presumably if there were a constitutional challenge to the Regulation in circumstanceswhere Mr.

Shymanski had attempted to comply, there may well have been more fulsome evidence before me not only of the signage,driver education, and licensing which occurs in British Columbia, but that which occurs across Canada as well, including in Ontariowhere Mr. Shymanski originates. Such evidence may have assisted the court in determining whether Mr. Shymanski’s degree ofcompliance met the test of due diligence or, indeed, whether the Regulation itself was too vague and unenforceable.

Given the facts ofthis case and on the compelling principles of judicial economy, I decline to embark on the exercise of determining whether theRegulation is constitutionally valid. CONCLUSION: [44] I dismiss Mr. Shymanski’s application for relief pursuant to the Constitutional Question Act and the Charter. __________________________ S.D. Frame Provincial Court Judge