R. v. Auto Clearing (1982) Ltd. et al., (2007) 300 Sask.R. 25 (PC)

• Judge: Singer, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 18, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 300 Sask.R. 25 (PC);2007 SKPC 69

R. v. Auto Clearing Ltd. (2007), 300 Sask.R. 25 (PC)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JL.045

Her Majesty the Queen v. Auto Clearing (1982) Ltd. and Northtown Motors Ltd.

(2007 SKPC 69)

Indexed As: R. v. Auto Clearing (1982) Ltd. et al.

Saskatchewan Provincial Court

Singer, P.C.J.

June 18, 2007.

Summary:

The defendants were the registered owners of motor vehicles that were driven by customers on test drives. Each vehicle was driven through a red light at a particular intersection as evidenced by photographs taken at the intersection, which recorded the plate number of each vehicle. Thus the owner of the vehicle could be ascertained but not the driver. The defendants were charged that they "Did fail to stop for a red light at intersection, being liable as Owner, contrary to s. 65(5)(a) pursuant to s. 93(2) of the Highway Traffic Act". Section 93(2) of the Highway Traffic Act had since been repealed by s. 273 of the Traffic Safety Act in exactly the same wording. The defendants applied to strike out part of s. 93(2) of the Highway Traffic Act, and by implication s. 273(2)(b) of the Traffic Safety Act, arguing that the impugned section imposed an onus on the owner that violated s. 11(d) of the Charter.

The Saskatchewan Provincial Court held that s. 273 of the Traffic Safety Act created a strict liability offence. The court further concluded that the section, if it existed as an absolute liability offence, would breach s. 11(d) of the Charter and the remedy would be to read the section as creating an offence of strict liability rather than one of absolute liability. The court concluded that the defence of due diligence was available to the defendants and that the defendants met the onus of showing that they took reasonable care in the circumstances. The defendants were therefore found not guilty of the charges.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - [See Civil Rights - Topic 4952 ].

Civil Rights - Topic 4952

Presumption of innocence - Evidence and proof - Due diligence defence - The defendants were the registered owners of motor vehicles that were driven by customers on test drives - Each vehicle was driven through a red light at a particular intersection as evidenced by photographs taken at the intersection, which recorded the plate number of each vehicle - Thus the owner of the vehicle could be ascertained but not the driver - The defendants were charged that they "Did fail to stop for a red light at intersection, being liable as Owner, contrary to s. 65(5)(a) pursuant to s. 93(2) of the Highway Traffic Act" - Section 93(2) of the Highway Traffic Act had since been repealed by s. 273 of the Traffic Safety Act in exactly the same wording - The defendants applied to strike out part of s. 93(2) of the Highway Traffic Act, and by implication s. 273(2)(b) of the Traffic Safety Act, arguing that the impugned section imposed an onus on the owner that violated s. 11(d) of the Charter - The Saskatchewan Provincial Court held that s. 273 of the Traffic Safety Act created a strict liability offence - The court further concluded that the section, if it existed as an absolute liability offence, would breach s. 11(d) of the Charter - The court stated that the principles of owner's culpability in s. 273 did not offend the Charter provided that the owner had the defence of due diligence - The remedy for a breach of s. 11(d) would therefore be to read the section as creating an offence of strict liability rather than one of absolute liability.

Motor Vehicles - Topic 4124

Offences - Liability of owner - For offence of driver - [See Civil Rights - Topic 4952 ].

Motor Vehicles - Topic 4124

Offences - Liability of owner - For offence of driver - The defendants were the registered owners of motor vehicles that were driven by customers on test drives - Each vehicle was driven through a red light at the intersection of Circle Drive and Avenue C in Saskatoon as evidenced by photographs taken at the intersection, which recorded the plate number of each vehicle - Thus the owner of the vehicle could be ascertained but not the driver - The defendants were charged that they "Did fail to stop for a red light at intersection, being liable as Owner, contrary to s. 65(5)(a) pursuant to s. 93(2) of the Highway Traffic Act" - Section 93(2) of the Highway Traffic Act had since been repealed by s. 273 of the Traffic Safety Act in exactly the same wording - The Saskatchewan Provincial Court found the defendants not guilty - Section 273 of the Traffic Safety Act created a strict liability offence and the defendants met the onus of showing that they took reasonable care in the circumstances - The court considered that it was the policy of the defendants to explicitly caution customers who would be test driving vehicles about the red light cameras at the intersection - One defendant had also displayed a poster in a prominent location advising clients to drive carefully and not to run red lights at the corner of Avenue C and Circle Drive in particular.

Motor Vehicles - Topic 4164

Offences - Intent or mens rea - Offences of strict liability - [See Civil Rights - Topic 4952 and second Motor Vehicles - Topic 4124 ].

Cases Noticed:

R. v. Burt (1987), 60 Sask.R. 100 (C.A.), refd to. [para. 12].

R. v. Tri-M Systems Inc. (2001), 152 B.C.A.C. 48; 250 W.A.C. 48; 153 C.C.C.(3d) 551 (C.A.), refd to. [para. 13].

R. v. Wilson (R.) (1997), 191 N.B.R.(2d) 307; 488 A.P.R. 307; 31 M.V.R.(3d) 238 (C.A.), refd to. [para. 14].

R. v. Pontes (P.), [1995] 3 S.C.R. 44; 186 N.R. 81; 62 B.C.A.C. 241; 103 W.A.C. 241, refd to. [para. 16].

R. v. Richard (R.), [1996] 3 S.C.R. 525; 203 N.R. 8; 182 N.B.R.(2d) 161; 463 A.P.R. 161, consd. [para. 17].

R. v. Gray, [1989] 1 W.W.R. 66; 54 Man.R.(2d) 240 (C.A.), consd. [para. 19].

R. v. Sutherland (1990), 96 N.S.R.(2d) 271; 253 A.P.R. 271; 55 C.C.C.(3d) 265 (C.A.), refd to. [para. 20].

R. v. Musser, 2001 CarswellBC 1510 (Prov. Ct.), refd to. [para. 20].

R. v. Doherty (B.) (1999), 257 A.R. 67; 77 Alta. L.R.(3d) 131 (Prov. Ct.), refd to. [para. 20].

R. v. Arlo Investments Ltd. (2003), 230 Sask.R. 282; 36 M.V.R.(4th) 210 (Prov. Ct.), refd to. [para. 23, footnote 2].

R. v. Tyndall (T.R.) (2005), 261 Sask.R. 288; 18 M.V.R.(5th) 95 (Prov. Ct.), refd to. [para. 23, footnote 2].

R. v. Zuk (2002), 23 M.V.R.(4th) 302 (Sask. Prov. Ct.), refd to. [para. 23, footnote 2].

R. v. Mannion Transportation Ltd. (1985), 38 Sask.R. 152 (Q.B.), refd to. [para. 24].

R. v. Chapin (1979), 26 N.R. 289; 7 C.R.(3d) 225 (S.C.C.), refd to. [para. 25].

Lévis (City) v. Tétreault (2006), 346 N.R. 331 (S.C.C.), consd. [para. 26].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 27, footnote 4].

R. v. Unity Auto Body Ltd. (No. 1) (1988), 68 Sask.R. 3 (Q.B.), refd to. [para. 36, footnote 7].

R. v. Wigglesworth (1987), 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 37 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 36, footnote 8].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 37].

R. v. Laba - see R. v. Johson et al.

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241, refd to. [para. 38].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 40].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 7].

Highway Traffic Act, S.S. 1986, c. H-3.1, sect. 93(2) [para. 4].

Traffic Safety Act, S.S. 2004, c. T-18.1, sect. 273 [para. 5].

Counsel:

R. James Fyfe, for the Crown;

Sarah M. Buhler, for the accused.

This matter was heard before Singer, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on June 18, 2007.