R. v. Browning-Ferris Industries of Winnipeg (1974) Ltd., (1980) 2 Man.R.(2d) 268 (CA)

• Judge: Matas, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 07, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 2 Man.R.(2d) 268 (CA)

R. v. Browning-Ferris Ind. (1980), 2 Man.R.(2d) 268 (CA)

MLB headnote and full text

R. v. Browning-Ferris Industries of Winnipeg (1974) Ltd.

Indexed As: R. v. Browning-Ferris Industries of Winnipeg (1974) Ltd.

Manitoba Court of Appeal

Matas, O'Sullivan and Huband, JJ.A.

February 7, 1980.

Summary:

This case arose out of a charge against the accused's company of permitting a vehicle to be driven with the weight in excess of that allowed for the tires on the vehicle contrary to the City of Winnipeg Bylaws. The accused previously pleaded guilty to a charge arising out of the same event of being the owner of a vehicle, which was driven in excess of its registered weight contrary to s. 166(1) of the Highway Traffic Act, R.S.M. 1970, c. H-60. The accused was convicted of the Bylaw offence and its appeal was dismissed by the Manitoba County Court. The accused appealed.

The Manitoba Court of Appeal allowed the appeal and quashed the conviction of the accused.

The Manitoba Court of Appeal held that a conviction under the Bylaw was precluded, where the accused had already been convicted for an offence arising out of the same occurrence under the Highway Traffic Act - see paragraphs 5 and 18 to 38.

Criminal Law - Topic 80

Res judicata - Multiple convictions for same subject matter precluded - Circumstances when defence may be raised - The accused company pleaded guilty to being the owner of a vehicle, which was driven in excess of its registered weight contrary to s. 166(1) of the Highway Traffic Act, R.S.M. 1970, c. H-60 - Then out of the same occurrence the accused was charged with permitting a vehicle to be driven with a weight in excess of that allowed for the tires on the vehicle contrary to the Winnipeg City Bylaws - The accused was convicted - The Manitoba Court of Appeal allowed the accused's appeal and held that a conviction under the bylaws was precluded, because of the previous conviction under the Highway Traffic Act arising out of the same occurrence - The Court of Appeal held that, where there was only one act by the accused; namely, having one truck load which was too heavy, it could be convicted of only one offence arising from it, notwithstanding that the offences charged were not alternative to each other - See paragraphs 5 and 18 to 38.

Criminal Law - Topic 5215

Evidence - Burden of proof - General - S. 41(1) of the Highway Traffic Act, R.S.M. 1970, c. H-60, provided that "all wheels of every motor vehicle ... while driven on a highway shall be pneumatic rubber tires" - The accused was charged with permitting a vehicle to be driven with a weight in excess of that allowed for the tires on the vehicle - The Crown at trial successfully submitted that s. 41(1) imposed an onus on the accused to prove that the tires used were not pneumatic and relieved the Crown of proving that the tires were pneumatic as an ingredient of the offence - The Manitoba Court of Appeal held that s. 41(1) did not reverse the onus of proof and that the Crown was still required to prove that the tires on the accused's vehicle were pneumatic - See paragraphs 4 to 16 and 39.

Motor Vehicles - Topic 3166

Regulations of vehicles and traffic - Equipment - Tires - S. 41(1) of the Highway Traffic Act, R.S.M. 1970, c. H-60, provided that "all wheels of every motor vehicle ... while driven on a highway shall be pneumatic rubber tires" - The accused was charged with permitting a vehicle to be driven with a weight in excess of that allowed for the tires on the vehicle - The Crown at trial successfully submitted that s. 41(1) imposed an onus on the accused to prove that the tires used were not pneumatic and relieved the Crown of proving that the tires were pneumatic as an ingredient of the offence - The Manitoba Court of Appeal held that s. 41(1) did not reverse the onus of proof and that the Crown was still required to prove that the tires on the accused's vehicle were pneumatic - See paragraphs 4 to 16 and 39.

Cases Noticed:

R. v. Kienapple, S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 451; 26 C.R.(N.S.) 1, appld. [para. 20].

R. v. Pinkerton (1979), 7 C.R.(3d) 39, consd. [para. 20].

R. v. Stelmaschuk (1977), 36 C.C.C.(2d) 317, consd. [para. 25].

R. v. McKinney et al., [1979] 2 W.W.R. 545, consd. [para. 26].

R. v. Ross (1979), 1 Man.R.(2d) 242, consd. [para. 27].

R. v. Dore (1974), 1 N.R. 489; 15 C.C.C.(2d) 542, appld. [para. 28].

R. v. Thomas (1949), 33 Cr. App. R. 200, refd to. [para. 29].

Statutes Noticed:

Highway Traffic Act, R.S.M. 1970, c. H-60, sect. 41(1) [para. 10]; sect. 63(1) [para. 9]; sect. 166(1) [paras. 2, 18].

Counsel:

C.A. Cudney, for the defendant/appellant;

D.N. Abra, for the informant/respondent.

This case was heard on November 2, 1979, at Winnipeg, Manitoba, before MATAS, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On February 7, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MATAS, J.A. - see paragraphs 1 to 17;

O'SULLIVAN, J.A. - see paragraphs 18 to 39.

HUBAND, J.A., concurred with O'SULLIVAN, J.A.