R. v. Crow (S.L.), 2007 ABPC 339

• Judge: Tilley, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 09, 2007
• Citations: 2007 ABPC 339;(2007), 435 A.R. 280 (PC)

R. v. Crow (S.L.) (2007), 435 A.R. 280 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.061

Her Majesty the Queen v. Shelley Lorraine Crow (accused)

(A07475090P; 2007 ABPC 339)

Indexed As: R. v. Crow (S.L.)

Alberta Provincial Court

Tilley, P.C.J.

December 6, 2007.

Summary:

Crow was charged with the strict liability offence under s. 115(2)(t) of the Traffic Safety Act; i.e., with failing to slow down to the lesser of 60 km/h or the posted speed limit, when she passed an emergency vehicle on the same side of the highway when that vehicle was stopped on the highway with its flashing lights in operation. The section was proclaimed in force on October 15, 2005 and published in the Alberta Gazette on November 15, 2005. The offence date was December 20, 2005. Crow testified that she had no idea that the law had changed. She applied for Charter relief under s. 24(1), arguing that her s. 7 rights were violated as a result of the province's alleged failure to provide fair notice of s. 115(2)(t). She also argued that the Crown had failed to prove the requisite mens rea; that s. 115(2)(t) was void for vagueness; and that she had exhibited due diligence.

The Alberta Provincial Court found Crow guilty. There was no evidence that the province failed to adequately notify the public as to the pertinent amendment. The offence prescribed in s. 115(2)(t) was a strict liability offence and did not require proof of mens rea. The section was not void for vagueness. Further, Crow could not rely on the due diligence defence or on the defence (raised by the court) of reasonable mistake of fact.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - [See Statutes - Topic 4552 ].

Civil Rights - Topic 3136.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to notification of conduct considered to be quasi-criminal - The accused was charged under s. 115(2)(t) of the Traffic Safety Act, requiring motorists to slow down to the lesser of 60 km/h or the posted speed limit, when passing stopped emergency vehicles with their emergency lights flashing - The section was proclaimed in force on October 15, 2005 and published in the Alberta Gazette on November 15, 2005 - The offence date was December 20, 2005 - The accused applied for Charter relief under s. 24(1), arguing that her s. 7 rights were violated as a result of the province's alleged failure to provide fair notice of s. 115(2)(t) - The Alberta Provincial Court dismissed the Charter application - There was no evidence that the province failed to adequately notify the public as to the pertinent amendments - The court took judicial notice that the relevant amendments were in force on the date of the offence - The province notified the public in at least two newspaper ads in the Edmonton Journal, in addition to publication in the Alberta Gazette - While the evidence suggested that following the offence date, signs were posted in many locations to alert the public as to the change in the law, there was lawful notice in the absence of those signs - See paragraphs 3 to 8.

Civil Rights - Topic 3136.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to notification of conduct considered to be quasi-criminal - The accused was charged under s. 115(2)(t) of the Traffic Safety Act, proclaimed in force on October 15, 2005 and published in the Alberta Gazette on November 15, 2005 - The offence date was December 20, 2005 - The accused argued, inter alia, that the province failed, constitutionally, to provide fair notice of the new enactment, and that fair notice trumped the maxim 'ignorance of the law is no excuse', citing R. v. Nova Scotia Pharmaceutical Society (1992) (S.C.C.) in support - The Alberta Provincial Court rejected the argument - Firstly, s. 19 of the Criminal Code codified the maxim, and as a result of s. 3 of the Provincial Offences Procedure Act, it applied to the Traffic Safety Act - Secondly, the Supreme Court of Canada expressly did not rule on the question whether the maxim was contrary to the rule of law - Further, R. v. Molis (1980) (S.C.C.), was "persuasive authority concerning the efficacy of an enactment published in the Alberta Gazette, and the resulting continued vitality and validity thereof with respect to s. 19 ..., that ignorance of the law, per se, is not an excuse for committing an offence" - See paragraphs 36 to 40.

Evidence - Topic 2231

Special modes of proof - Judicial notice - Particular matters - Satutes, statutory orders and regulations - The accused was charged under s. 115(2)(t) of the Traffic Safety Act, proclaimed in force on October 15, 2005 and published in the Alberta Gazette on November 15, 2005 - The offence date was December 20, 2005 - The Alberta Provincial Court agreed with the Crown that s. 32 of the Alberta Evidence Act authorized the court "to give judicial notice to the fact that a statute (i.e., any enactment) may be judicially noticed. I also agree that judges are obliged at law to give judicial notice to the existence of enactments" - The court took judicial notice that the relevant amendments were in force on the date of the offence - See paragraphs 2 to 3.

Highways - Topic 5806

Offences - General - Strict liability offences - The accused was charged under s. 115(2)(t) of the Traffic Safety Act - She argued, inter alia, that s. 115, while describing strict liability offences, constituted or prescribed mens rea offences; that a contravention of s. 115(2)(t) was a mens rea offence; and that the Crown had failed to prove the requisite mens rea - The Alberta Provincial Court rejected that argument - "It is clear that strict liability offences do not require proof of mens rea. The offence for which the Defendant here has been charged is a strict liability offence. No proof of mens rea is required. Section 161 of the Traffic Safety Act confirms this. ... . The Crown offered its view that this case involves a strict liability offence, and that no proof of mens rea is required. I would rather conclude that strict liability offences do not include a mens rea element." - See paragraphs 11 to 28.

Motor Vehicles - Topic 2610

Regulation of vehicles and traffic - Rate of speed - General - Change in maximum rate of speed - [See Motor Vehicles - Topic 2661 ].

Motor Vehicles - Topic 2661

Regulation of vehicles and traffic - Rate of speed - Defences - General - The accused was charged with the strict liability offence under s. 115(2)(t) of the Traffic Safety Act - The amendment required Alberta drivers, on and after October 31, 2005, to drive the lesser of 60 km/h or the posted speed when passing emergency vehicles on the same side of the highway when those vehicles were stopped on the highway with their flashing lights in operation - Prior to that enactment there was no explicit requirement - The accused took no action to slow down - She testified that she had no idea that the law had changed - The Alberta Provincial Court, on its own motion, addressed the issue whether the defendant had a reasonable mistaken belief that she could pass a police cruiser with its emergency lights flashing, without slowing down - The court found that the defendant failed to establish the defence of reasonable mistake of fact - "... prior to the coming into force of s. 115(2)(t), Alberta drivers, without having a requirement to reduce their speed, were nonetheless expected to drive safely as they passed emergency vehicles" - See paragraphs 46 to 54.

Motor Vehicles - Topic 2665

Regulation of vehicles and traffic - Rate of speed - Defences - Due diligence - The accused was charged under s. 115(2)(t) of the Traffic Safety Act, proclaimed in force on October 15, 2005 and published in the Alberta Gazette on November 15, 2005 - The new provision was also placed in advertisements in the Edmonton Journal - The offence date was December 20, 2005 - Shortly following, the government posted signs concerning the new law on many public roadways - The accused argued that she exhibited due diligence on the grounds that she was not aware of the change in the law, and that she could not have been aware, given the province's alleged failure to notify the public - The Alberta Provincial Court rejected the argument - Due diligence was available in the context of strict liability offences, but what was required was " ... proof, the onus of which rests on the accused, within a standard of more probable than not that she took all reasonable steps to prevent the commission of the offence" - There was no evidence that the accused took any steps to prevent the commission of the offence - "Due diligence, as an affirmative defence to a strict liability offence, is concerned with the acts of the Defendant; not the Government of Alberta in regulating traffic safety" - See paragraphs 42 to 45.

Motor Vehicles - Topic 4164

Offences - Intent or mens rea - Offences of strict liability - [See Highways - Topic 5806 ].

Statutes - Topic 4552

Operation and effect - Validity - Vagueness - The accused was charged under s. 115(2)(t) of the Traffic Safety Act - The Alberta Provincial Court stated that s. 115(2)(t) was not void for vagueness - "... the very language of the statute is itself clear. Unlike the impugned section ... in the Nova Scotia Pharmaceutical Society case, s. 115 does not contain ambiguous terms" - The court noted that "the 'void for vagueness doctrine' is not applied to the words of a statute alone, but in the broader context of judicial interpretations of the meaning of the statutory language, having regard to the Charter and the law in general" - See paragraphs 29 to 35.

Cases Noticed:

R. v. Knight (M.L.), [2004] A.R. Uned. 741; 2005 CarswellAlta 1847; 2005 ABQB 14, refd to. [para. 2].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [para. 12].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30, refd to. [para. 18].

Proudman v. Dayman (1941), 67 C.L.R. 536 (Aust.), refd to. [para. 23].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 29].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 30].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289, refd to. [para. 31].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 40].

R. v. Fingold et al., [1996] O.J. No. 3464 (Prov. Div.), affd. (1999), 89 O.T.C. 249; 22 O.S.C.B. 2811 (Gen. Div.), refd to. [para. 47].

R. v. Pendrak (B.M.) (2000), 273 A.R. 92 (Q.B.), refd to. [para. 54].

Statutes Noticed:

Alberta Evidence Act, R.S.A. 2000, c. A-18, sect. 32 [para. 2].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 19 [para. 38].

Traffic Safety Act, R.S.A. 2000, c. T-6, sect. 115(2)(t) [para. 1].

Counsel:

G. Annetts, for the Crown;

M. Walker, for the accused.

This trial, including a Charter voir dire, was heard on October 9, 2007, in Edmonton, Alberta, by Tilley, P.C.J., of the Alberta Provincial Court. The court gave the following ruling and reasons for judgment on December 6, 2007.