R. v. Sweryda, 2014 MBCA 112

Citation: R. v. Sweryda, 2014 MBCA 112 Date: 20141215 Docket: AR14-30-08237 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) C. Sweryda ) on behalf of the Applicant ) (Respondent) Respondent ) N. P. Steen ) for the Respondent - and - ) ) WILLIAM SWERYDA ) Chambers motion heard: ) December 4, 2014 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) December 15, 2014 HAMILTON J.A. [ 1 ] The applicant seeks leave to appeal the dismissal of his

summary conviction appeal from his conviction for speeding under The Highway Traffic Act , C.C.S.M., c. H60 (the Act ). [ 2 ] The speeding conviction was based on photo radar images taken pursuant to subss. 257.1(1) and (2) of the Act and subss. 12(1) and (2) of Man.

Reg. 220/2002 (the Regulation), which permit the use of image capturing enforcement systems to be used in a “playground zone.” [ 3 ] Subsections 257.1(1) and (2) of the Act read as follows: Use of image capturing enforcement systems 257.1(1) Municipalities, and peace officers acting on behalf of municipalities or the government, may use image capturing enforcement systems only if they are authorized to do so by the regulations and only (

a) for enforcing subsections 88(7) and (9) (red light offences), subsection 95(1) (speeding offences) , clauses 134(2)(

b) and (c) (railway crossing offences) and subclauses 134(6)(a)(

i) and (b)(i) (railway crossing offences); and (

b) in accordance with any conditions, limitations or restrictions in the regulations about the use of such systems. Limitations re speed limit enforcement 257.1(2) Without limiting the generality of subsection (1), when municipalities and peace officers acting on behalf of municipalities or the government use image capturing enforcement systems for speed limit enforcement, they may only use them to detect speed limit violations that occur (

a) in construction zones, playground zones and school zones; and (

b) at intersections that are controlled by traffic control lights.

[emphasis added] [4] Subsections 12(1) and (2) of the Regulation read as follows: Playground zones 12(1) For the purposes of subsection 257.1(2) of the Act, a playground zone is a portion or length of highway that (

a) adjoins or is adjacent to an area set aside by a municipality for children’s recreational activities; and (

a) is identified as a playground zone by approved traffic control devices placed at the beginning of the zone facing each direction oftraffic entering the zone. 12(2) A playground zone starts at the approved traffic control device facing one or more lanes of traffic and ends at the approvedtraffic control device facing the oncoming travel lanes. If there are no oncoming travel lanes or no device facing them, the playgroundzone ends at a point past the set-aside area that is the same distance past the area as the device marking the start of the zone is ahead ofthe area. [5] The applicant seeks leave on the question of whether the

summary conviction appeal judge (the appeal judge) erredin law by incorrectly interpreting the Regulation with respect to where approved traffic control devices are to be located to establish aplayground zone. Background [6] The applicant is the registered owner of a car that was photographed by photo radar equipment travelling on LoganAvenue at 68 kilometres per hour where the speed limit was 50 kilometres per hour. The officer operating the photo radar was locatedbetween two playground traffic control devices (the playground signs) located at each end of a playground on Logan Avenue.

Oneplayground sign faced the traffic travelling east and the other playground sign faced the traffic travelling west. [7] The driver of the car was the applicant’s son, Christian Sweryda (Mr. Sweryda). Mr. Sweryda, with the authorizationof the applicant, appeared at the trial before the justice of the peace, argued the

summary conviction appeal and argued the leave motion. [8] Mr. Sweryda had been driving north on Winks Street before he turned left onto Logan Avenue to go west. WinksStreet is a cross street that intersects Logan Avenue between the playground signs. He contested the offence notice on the basis that theRegulation requires signage on all cross streets entering a playground zone.

Therefore, because there was no signage on Winks Street,the photo radar equipment that recorded him speeding was not authorized and as a result, the photo radar images were not admissibleevidence. [9] The justice of the peace found that the photo radar had been “properly deployed” pursuant to the Regulation becausethe officer operating the photo radar was located between the playground signs. [10] The appeal judge agreed with the justice of the peace and dismissed the appeal.

Reasons of the Appeal Judge [11] The appeal judge noted that the Crown conceded that if the photo radar equipment was not set up in an area defined asa playground zone under the Regulation, the photo radar images were inadmissible. [12] The appeal judge correctly described the question on appeal as one of statutory

interpretation requiring the standard ofreview of correctness. She also correctly identified the applicable principle of statutory

interpretation: the words of

an Act are to beread in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Actand the intention of Parliament. See Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. [13] The appeal judge disagreed with Mr. Sweryda’s argument that “each” in s. 12(1)(

b) of the Regulation means “everyroadway entering the area; if the

section required signs only in each direction on Logan, it would have said ‘both’”: Both ss. 12(1)(

a) and 12(2) are of assistance in the

interpretation of s. 12(1)(b). Section 12(1) defines a playground zone as a portion orlength of highway that “adjoins or is adjacent to” a playground (s. 12(1)(a)) and also meets the requirements of s. 12(1)(b), therebyindicating that the signs required under s. 12(1)(

b) must be on the highway adjoining or adjacent to the playground. In my view, Winks

is not adjoining or adjacent to the playground. Only Logan is. Section 12(2) speaks of a sign being placed facing one direction of traffic and another “facing the oncoming travel lanes” – hence, two signs, one for each direction of traffic on Logan. [ 14 ] With respect to Mr. Sweryda’s argument that it was unfair to drivers not to interpret the Regulation as he argued, she stated: ... [I]t is not ... unfair ... to allow photo radar enforcement in circumstances where playground signs are placed only on Logan. It is common ground that the playground signs on Logan did not require [Mr.] Sweryda to reduce his speed.

The speed on Logan was the same as it was on Winks and throughout the city – 50 kilometres per hour. Regardless of a playground sign and what speed enforcement was in place, [Mr.] Sweryda was expected to comply with the speed limit both near the playground and otherwise. [ 15 ] Acknowledging that safety was “a central objective of the Act and Regulation,” she concluded that: … [I]t would [not] have been the intention of the Legislature to have stringent conditions on what is a proper playground zone.

The Legislature’s intention was to allow for added speed enforcement in areas of concern, and limiting the ability to conduct that enforcement by requiring a multitude of signs would not have been its intention. Criteria for Leave to Appeal [ 16 ] Leave to appeal a

summary conviction appeal is to be granted sparingly. The criteria to be met for such leave create a very high threshold. This is so because the

summary conviction has already been reviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters. There should be an exceptional circumstance or a compelling reason to allow this second level of appeal. A

summary conviction appeal must only involve a question of law. See s. 839 of the Criminal Code . Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance that should engage the attention of the Court of Appeal. See R. v. Langlois (D.J.) , 2008 MBCA 72 , 228 Man.R. (2d) 256; R. v. Suberu (M.) , 2007 ONCA 60 at para. 67 , 220 O.A.C. 322; R. v. R.M.W. , 2011 MBCA 74 at paras. 26 , 32, 34, 270 Man.R. (2d) 29. See also R. v. Schalla (K.T.) , 2007 MBCA 104 at para. 1 , 220 Man.R. (2d) 69; and R. v. McCorriston (G.J.) , 2010 MBCA 3 , 251 Man.R. (2d) 106.

Position of the Applicant [ 17 ] Mr. Sweryda argues that the appeal judge erred in her

interpretation of the definition of playground zone in the Regulation and particularly the meaning of “each direction.” He says that this means “all directions” and would therefore include the direction of cross streets such as Winks Street. He says that to interpret each direction otherwise would not be consistent with the purpose of the Act , which is public safety.

He asserts, as well, that it is not fair to a driver not to know that he or she is entering a playground zone which entitles enforcement by photo radar. [ 18 ] He submits that his appeal raises an arguable question of law that is of importance to set a precedent for what is proper signage for playground zones and if he is successful, to force better signage for such zones to ensure better safety. Position of the Crown [ 19 ] The Crown’s position is that the appeal judge correctly interpreted the Regulation , which permitted enforcement by the photo radar at the offence location.

Further, it says that the circumstances are not exceptional as Mr. Sweryda was, in fact, speeding on Logan Avenue, whether a playground zone or not. Therefore, there is no justification for convening a full panel of the Court of Appeal in these circumstances. Analysis and Decision [ 20 ] There is no issue that the proposed question is one of law because it involves a question of statutory

interpretation. However, Mr. Sweryda has not convinced me that the question raises an arguable case of substance that should be addressed by a panel of Court of Appeal judges for two primary reasons. [ 21 ] First, I see no error in how the appeal judge interpreted the Regulation and particularly the word “each” in s. 12(1) (

b) of the Regulation . The Act contemplates the use of image capturing enforcement systems in specified locations, including playground zones. See s. 257.1 of the Act . The effect of the Regulation is that a playground zone is a portion or length of highway that adjoins or is adjacent to a playground and is created by the location of traffic control devices at the beginning of the zone facing each direction of traffic entering the zone. The Regulation does not refer to signage on any streets other than the one adjoining or adjacent to the playground.

The appeal judge correctly, in my view, concluded that traffic control devices were not required by the Regulation on streets intersecting the “adjoining or adjacent” street and therefore, the playground signs complied with the Regulation to permit the use of photo radar equipment at the offence location on Logan Avenue. [ 22 ] Second, I agree with the Crown that this is not an exceptional case. There are no conflicting lower court decisions that need resolution by the Court of Appeal and no compelling reason for leave to be granted, such as the applicant’s liberty. See R. v. Nasberg , 2012 MBCA 104 .

To the contrary, the circumstances concerning this speeding offence are not compelling. As the appeal

judge rightly noted, these were not circumstances where the speed limit was reduced because of the playground zone. [ 23 ] For these reasons, I dismiss the application for leave to appeal. J.A.