R v Bernier, 2020 MBCA 74

Citation: R v Bernier, 2020 MBCA 74 Date: 20200717 Docket: AR19-30-09298 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) M. BuchartHER MAJESTY THE QUEEN ) for the Applicant ) (Respondent) Respondent ) C. P. R. Murray ) for the Respondent- and - ) ) Chambers motion heard:RAYMOND JOSEPH BERNIER ) January 30, 2020 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) July 17, 2020 BEARD JA THE ISSUE [1] The accused applies for leave to appeal the decision of a Court of Queen’s Bench

summary conviction appeal courtjudge (the appeal judge) dismissing his appeal from two speeding convictions under The Highway Traffic Act, CCSM c H60 (the Act). The accused was convicted under section 229(2) of the Act as the owner of a vehicle involved in a contravention under the Act, not as thedriver. He is not challenging the finding that his vehicle was being driven in contravention of the Act; rather, he is challenging thelegality of the legislation. [2] In his brief and in oral argument, the accused alleges that the legislation breaches both

section 11(c) (the right of anaccused not to be compelled to be a witness in proceedings against him or her in respect of an offence), and 11(d) (the presumption ofinnocence) of the Canadian Charter of Rights and Freedoms (the Charter). The allegation of a breach of

section 11(

c) is being raisedfor the first time before this Court and was not considered by the lower courts, so this application will be restricted to the issue that wasconsidered by those courts, being whether there was a breach of the accused’s rights under

section 11(d). BACKGROUND [3] The accused was charged as the registered owner of a vehicle that was caught speeding by an image capturingenforcement system (photo radar) on two separate occasions, in 2016 and again in 2017, as a result of which two image capturingenforcement system offence notices (photo radar tickets) were issued. The photo evidence shows the licence plate of the vehicle, but itdoes not show the driver.

Because the driver was unknown, the accused was identified through the licence plate and registration as theregistered owner of the vehicle and charged under sections 95(1) and 229(2) of the Act. [4] The accused pled not guilty and had a trial in the Provincial Court. At his trial, he did not seriously contest the facts;rather, he argued that

section 229 violated his presumption of innocence and that, as a result, he should be acquitted. [5] The trial judge found that the issue of whether section 229(2) breached an accused’s presumption of innocence asprotected by

section 11(

d) of the Charter had been determined by this Court in R v Gray (1988), (MB CA), 44 CCC(3d) 222. In that decision, this Court found that the provision did not breach

section 11(d), and the trial judge found that he was bound toaccept that ruling. He then convicted the accused of both speeding offences. [6] The accused filed an application under section 79(3) of The Provincial Offences Act, CCSM c P160 (the POA), forleave to appeal his

summary conviction. The appeal judge granted leave to appeal on the basis that there was an appellate decision fromthe New Brunswick Court of Appeal (R v Wilson, 1997 CarswellNB 390), that had come to a different conclusion from that in Gray, andthat it should be for this Court to determine whether to review its decision in Gray in light of Wilson. Regarding the substance of theappeal as to the constitutionality of section 229(2), the appeal judge found that he was bound by the decision in Gray, and he dismissedthe appeal.

[7] The accused now wishes to appeal the decision of the appeal judge to this Court. As this would be a second-levelappeal, the accused requires leave to appeal. (See

section 84 of the POA.) TESTS TO BE APPLIED [8] The determination of the application for leave to appeal engages two tests: whether the accused’s appeal meets thetest for permitting a second-level appeal, and whether there is an arguable case that it meets the test for an appellate court to reconsider aprior decision of the Court. [9] The test for granting leave to appeal from a decision of a judge of the Court of Queen’s Bench acting as a

summaryconviction appeal court is well known, involving three criteria: (

i) the grounds of appeal must involve questions of law alone (seesection 84 of the POA); (ii) the matter must raise an arguable case of substance; and (iii) the case must be of sufficient importance tomerit the attention of the full court. While these criteria are often considered in relation to

summary conviction appeals under theCriminal Code, they apply equally to

summary conviction appeals under provincial legislation, including the POA. (See, for examplethe following chambers decisions, R v Fenske (HB), 2015 MBCA 113 at paras 11-12 (including an explanation regarding the basis forthe more limited appeal at the second level); R v Grant, 2017 MBCA 84 at para 18; Winnipeg (City of) v The Neighbourhood Bookstoreand Café Ltd, 2019 MBCA 3 at paras 36, 40, 42; and R v Grant, 2019 MBCA 51 at paras 11-12.) [10] It has often been emphasised that access to a second-level appeal should be limited to those cases in which the appellantcan demonstrate some exceptional circumstances justifying a further appeal. (See R v R (R), 2008 ONCA 497 at para 27; and R vDickson (WA), 2012 MBCA 2 at paras 12-14.) [11] The test for reconsidering an earlier decision was reviewed in some detail in Siwak v Siwak, 2019 MBCA 60 at paras33-34. (See also Donald JM Brown with the assistance of David Fairlie, Civil Appeals (Toronto: Thompson Reuters, 2019) vol 1 (loose-leaf release 2020-2) ch 1 at paras 1:3212-1:3220, 1:3240-1:3247.) [12] In

summary, the doctrine of stare decisis provides that an appellate court will be bound by its past decisions, subject toits ability to overrule a past decision in appropriate circumstances. (See Brown at para 1:3212.) The doctrine “promotes theevenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to theactual and perceived integrity of the judicial process” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 atpara 260, Abella and Karakatsanis JJ, for the minority, but not on this point, quoting from Kimble v Marvel Entertainment, LLC, 135 SCt 2401 at 2409 (2015)). [13] While it is open for courts to reconsider and overrule prior decisions, “[r]econsideration of a prior decision cannot bedone lightly.

If one panel of the court is at liberty to depart from a pronouncement of an earlier panel, the result is an unacceptable levelof uncertainty in the law” (Mellway v Mellway, 2004 MBCA 119 at para 26). [14] The test for reconsideration sets a high bar—described as “a step not to be lightly undertaken” and requiring the court to“be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled” (Canada v Craig, 2012 SCC43 at paras 24-25).

Dickson CJC (in the minority, but not on this point) stated in R v Bernard, (SCC), [1988] 2 SCR833, that “even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compellingcircumstances to justify departure from a prior decision” (at p 849). In a similar vein, the majority in Vavilov stated that anyreconsideration can be justified only in “compelling circumstances,” and cannot be undertaken “lightly” (at para 18).

STATUTORY PROVISIONS [15] The relevant provisions of the Act are: Owner may be charged with driver’s offence 229(2) The owner of a vehicle that is involved in a contravention of this Act, a regulation or a rule or by-law made by a traffic authorityunder subsection 90(1) may be charged with any offence with which, in similar circumstances, the driver of a vehicle or the personhaving care, charge or control of one may be charged.

Conviction of owner 229(2.1) If the judge or justice before whom the owner is tried is satisfied that the vehicle was involved in the contravention, the owneris guilty of the offence, unless the owner proves to the satisfaction of the judge or justice that at the time of the contravention the vehiclewas, without the owner’s express or implied consent, in someone else’s possession.

Owner not guilty when driver is guilty 229(3) An owner is not guilty of an offence under subsection (2.1) in relation to an occurrence if the owner satisfies the judge or justicethat the driver of the vehicle or the person having care, charge or control of it, being in either case a person other than the owner, wasconvicted of the offence in relation to the same occurrence. Owner penalty

229(4) An owner who is guilty of an offence under subsection (2.1) is liable, on

summary conviction, to the penalty to which the driveror person having care, charge or control is subject except that the owner is not liable to imprisonment. THE PARTIES’ POSITIONS [16] In addressing the test for a second-level appeal, both parties agree, as do I, that the proposed ground of appeal raises aquestion of law and, therefore, meets the first criterion of the test. The Crown challenges the granting of leave on the basis that theaccused has not presented an arguable case of substance. [17] The accused’s position is that three other appellate courts have found that provisions similar to section 229(2) breachedthe Charter. He argues that “this court on revisiting [the Act],

section 229, now in 2020, may with the benefit of those other appellatedecisions, obtain a different answer regarding its constitutionality than it did in 1988”. [18] The Crown’s position is that the three cases on which the accused bases his argument do not, in fact, support thatargument. It further argues that developments in the law regarding

section 11(

d) of the Charter subsequent to Gray support, rather thancast doubt on, the findings in Gray. Finally, it argues that there are no exceptional circumstances that would suggest that this Courtshould reconsider its prior decision in Gray. Thus, its position is that the accused has not met the test for granting leave to appeal to thisCourt, and his application should be dismissed. ANALYSIS (

i) Arguable Case of Substance Gray [19] In Gray, the accused was charged, under what was then section 229(1) of the Act, (now section 229(2)), with being theregistered owner of a vehicle involved in several driving offences. At his trial, he successfully challenged the validity of the legislationunder sections 7, 11(c), and 11(

d) of the Charter, and he was acquitted. The Crown appealed, and the appeal judge found that thelegislation did not violate any of the Charter provisions.

That finding was appealed to the Court of Appeal. [20] Huband JA, for the Court, found, based on Re BC Motor Vehicle Act, (SCC), [1985] 2 SCR 486; and Rv Burt (1987), (SK CA), 38 CCC (3d) 299 (Sask CA), that reasonable care or due diligence in lending a vehicle didnot constitute a defence for the owner under section 229(1) of the Act, with the result that it created an absolute liability offence. (This isan offence for which an accused can be convicted merely upon proof of the proscribed Act, without any proof of any additional faultelement such as guilty knowledge or negligence. (See, for example, The Queen v Sault Ste Marie, (SCC), [1978] 2 SCR1299 at 1326; and Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law, 2018) at 242.)) [21] Huband JA also found, following Re BC Motor Vehicle Act, that the provision violated the right to liberty guaranteed bysection 7 of the Charter due the possibility, albeit remote, of incarceration for the non-payment of a fine, if one were imposed as apenalty. (See paras 20-25.) [22] As regards

section 11(

d) of the Charter, that is the presumption of innocence, Huband JA concluded that the onusremained with the Crown to establish the basic ingredients of the offence beyond a reasonable doubt, being that the accused was theowner of the vehicle and that the vehicle was involved in a violation of the Act.

While section 229(1) stated the owner would be guilty“unless, the owner satisfies the judge or justice that, at the time of the violation, the motor vehicle was in the possession of a person otherthan the owner . . . without the consent of the owner”, he held that this does not create a reverse onus or deny the benefit of thepresumption of innocence. Rather, this provided the accused with a statutory defence, which would arise after the Crown hadestablished a complete case for conviction. (See para 28.) [23] On this basis, he found that section 229(1) did not violate

section 11(

d) of the Charter. [24] Having found that the provision violated

section 7 of the Charter, Huband JA then considered whether it could besaved under

section 1. He stated that the determining issue was whether there was a potential for imprisonment following a convictionunder section 229(1). He found that imprisonment was inherently unlikely, which led him to conclude that the test under

section 1 hadbeen met and

section 229 was valid legislation. (See paras 37-40.) It was on this last point that Huband JA differed from the Court inBurt, which found that even a prospect of imprisonment for an absolute liability offence rendered the legislation unconstitutional. (Seepara 60). [25] It should be noted that the Act was subsequently amended with the addition of section 229(4), which removes thepossibility of imprisonment for a conviction under this provision. Thus, the

section 7 breach that was found in Gray and Burt is nolonger an issue. The Accused’s Cases [26] The first case referred to by the accused is Burt. His position is that, although the Burt decision, as it related to thebreach of

section 7, does not apply to this appeal, Bayda CJS’s discussion of the inapplicability of the doctrine of vicarious liability fromtort law to criminal and regulatory law is relevant to the present matter.

Section 11(

d) was not at issue in Burt, and, unfortunately, theaccused does not explain how it would apply and whether there are any differences regarding its application to

section 7 as compared tosection 11(

d) of the Charter. [27] The second case is that of R v Sutherland (1990), (NS CA), 55 CCC (3d) 265 (NSCA). In oralargument, defence counsel said that he had overstated the effect of this case and that he accepted the Crown’s position.

[28] I would agree with the Crown that Chipman JA, for the majority in Sutherland, held that a provision similar to section229(1) in Gray as it related to proof by the owner that he or she did not consent to the operation of the vehicle did not operate as a reverseonus. Chipman JA found that the exemption from liability where the accused “can prove” that the vehicle was operated without hisconsent was not an element of the offence, but one way to establish the defence of due diligence.

Thus, he found no breach ofsection 11(d). [29] The difficulty with the Crown’s position is that it misses an important aspect of Chipman JA’s decision because it doesnot take into account the difference between the underlying offences in Sutherland and this case. In Sutherland, the underlying offencewas a failure by the registered owner to respond to a demand made of him or her for information regarding the particulars of the driverof his vehicle, where that vehicle was involved in an offence.

Importantly, the registered owner was not being charged with theunderlying driving offence, but with his or her own failure to provide information. Thus, the actus reus of the offence was the act oromission of the owner regarding the provision of information, not an offence related to the operation of the vehicle.

This distinction wasclearly important to Chipman JA. (See paras 9-12.) This is not the same as the offence under section 229(2) of the Act, pursuant towhich the registered owner can be convicted of a driving offence even if there is no proof that he was the driver. [30] Chipman JA found that the offence of failing to comply with a demand for information was a strict liability offence (notan absolute liability offence, as in Gray) and that the defence of due diligence was available.

He then found that the second part of theprovision, that the owner could raise the defence that the vehicle was being operated without his or her consent, was an aspect of the duediligence defence and not a reverse onus provision. [31] In my view, the difference in the underlying offences in Sutherland and the present case is significant. While thefinding in Sutherland that the lack of consent defence does not constitute a reverse onus would apply in this case, Sutherland does notaddress the argument of whether there is a breach of

section 11(

d) as a result of the owner being convicted of the underlying drivingoffence without proof that he or she was driving. Thus, it does not support Gray on this issue. [32] The final case is R v Wilson. In Wilson, the accused was convicted as the owner of a vehicle that failed to stop for aschool bus. This is comparable to the present case, where the owner was convicted of the underlying driving offence. It is correct, as theCrown points out, that the Crown in Wilson conceded breaches of sections 11(

c) and (d), and the only issue was whether the legislationwas saved under

section 1 of the Charter. [33] Notwithstanding the Crown’s concession, however, Bastarache JA, for the Court, considered whether there had been abreach of sections 11(

c) and (d), stating that he disagreed with the decisions, including Gray, that found no violation of

section 11. Hefound that the owner liability provisions created a presumption that the owner was the driver and the owner then had the onus to rebutthis presumption, which breached the accused’s

section 11 rights and was not saved by

section 1. To remedy that breach, he read downthe legislation to provide a due diligence defence. (See paras 15, 21.) [34] The essential difference between Gray and Wilson is in their

interpretations of the decision in R v Holmes, (SCC), [1988] 1 SCR 914. That decision involved a conviction for having possession of house-breaking tools under section 309(1) ofthe Criminal Code. The offence included a presumption of guilt from possession, unless the accused established a lawful excuse, “theproof of which lies on him”. The Court found that the presumption did not constitute a reverse onus in violation of

section 11(

d) becauseall elements of the offence, including possession by the accused, had to be proved by the Crown, and the reference to the accusedproving a lawful excuse was “little more than a recognition of the accused’s statutory right . . . to make full answer and defence” (at p945). [35] In Gray, Huband JA found that the offence under section 229(1) consisted of being the owner of a vehicle involved inan offence under the Act, and that the Crown was required to prove all elements, being that the accused was the owner and that hisvehicle was involved in a driving offence.

He did not address the issue of the owner being convicted of a driving offence without theCrown having to prove that he was driving. This is the vicarious liability issue raised in Burt, to which the accused alluded in hisargument. [36] Bastarache JA distinguished the offence in Holmes from those in Gray and Wilson on the basis of the actus reus of theoffence and what was required to be proved by the Crown. He stated that, in Holmes, the illegal act was one of possession by theaccused, and the Crown was required to prove beyond a reasonable doubt that the accused had possession.

In Gray and Wilson, theillegal act was the act of driving in violation of the driving laws, but the Crown did not have to prove that the owner was driving—hesaid that proof of driving was, effectively, presumed from proof of ownership. This then placed an onus on the owner to rebut thepresumption that he was the driver, which breached

section 11(d). (See p 926.) Thus, he agreed that there was no breach of 11(

d) inHolmes because the Crown had to prove that the accused committed the possession offence, but there was a breach in Wilson because theCrown did not have to prove that the accused committed the driving offence, and he disagreed with the finding of no breach in Gray,finding that it misapplied Holmes. [37] The Crown, in arguing that Sutherland actually supports the finding in Gray, does not address this distinction at all. [38] While the Crown referred to jurisprudence that states that, in some cases, a reverse onus is constitutional in regulatorycases (see, for example, R v Wholesale Travel Group Inc, (SCC), [1991] 3 SCR 154; and R v Tri-M Systems Inc, 2001BCCA 277), in my view this argument requires a more detailed analysis than was provided at the leave hearing. (ii) Case of Sufficient Importance [39] The Crown did not address this criterion separately from that of whether there was an arguable case.

As the accusedpoints out, section 229(2) applies to every offence under the Act, which includes thousands of photo radar tickets issued every year andaffects a large number of people. Thus, he states, it is not a marginal, narrow issue. [40] I would agree that, notwithstanding the decision in Gray, the question of the constitutional validity of

section 229 of theAct raises a significant issue that is of sufficient importance to merit the attention of the full Court.

[ 41 ] I am also satisfied that the issues raised in this appeal arguably meet the test to have this Court review its earlier decision in Gray . Conclusion [ 42 ] Based on the jurisprudence set out above, section 229(2) of the Act potentially breaches

section 11(

d) of the Charter in two ways. The first argument is that the offence of being the owner of a vehicle involved in a violation of the Act violates

section 11(

d) because the owner can be convicted of a driving offence without the Crown having to prove that he or she was driving and, to avoid conviction (apart from the limited statutory defences), the owner must prove that he or she was not driving, creating a reverse onus. The second argument is that the exemption from guilt in section 229(2) of the Act , itself, creates a reverse onus because the owner must prove that the vehicle was being operated without his consent, which also breaches

section 11( d ). [ 43 ] The parties have not provided any jurisprudence to indicate that the second argument has found any favour in the courts. What is at issue, although not at all well articulated, is the first argument. [ 44 ] The tests for both granting leave for a second-level appeal from a

summary conviction appeal decision and for an appellate court to reconsider a prior decision set a high bar—the applicant must establish “exceptional circumstances”, and these decisions “cannot to be undertaken ‘lightly’” (see paras 8-14 herein). [ 45 ] In my view, that high bar is met in this case. For the reasons set out above, I am satisfied that there is an arguable case of substance that the provisions of section 229(2) of the Act that make an owner guilty of a driving offence without proof that he or she was the driver create a reverse onus and breach

section 11(

d) of the Charter , regarding an accused’s presumption of innocence, and that this issue merits the attention of the Court. [ 46 ] I would caution both counsel that the appeal appears to raise issues related to absolute versus strict liability offences and the constitutionality of reverse onus provisions that were only alluded to in this application. Thus, the appeal will have to entail a much more in-depth analysis than has been presented to date. Remedy [ 47 ] The Crown argues that, while the accused is seeking a stay of the proceedings against him under section 24(1) of the Charter , if he is successful, the appropriate remedy would be one under

section 52 of the Constitution Act , 1982 , so that the defect is cured for all persons affected by the Act , and not just this accused. This will, obviously, be a decision for the Court, if the legislation is found to be unconstitutional. DECISION [ 48 ] For these reasons, I would grant the accused’s application for leave to appeal, which will be limited to the question of whether

section 229 of the Act breaches

section 11(

d) of the Charter as set out above. The issue of the appropriate remedy will be for the Court, if the accused is successful on his appeal. JA