R. v. Thawer (S.W.M.), (2003) 350 A.R. 51 (PC)

• Judge: Bridges, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 23, 2003
• Citations: (2003), 350 A.R. 51 (PC);2003 ABPC 220

R. v. Thawer (S.W.M.) (2003), 350 A.R. 51 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JA.071

Her Majesty the Queen v. Shiraz Wali Mohamed Thawer (respondent) and The Attorney General of Alberta (applicant/intervener)

(A05117000D; 2003 ABPC 220)

Indexed As: R. v. Thawer (S.W.M.)

Alberta Provincial Court

Judicial District of Edmonton

Bridges, P.C.J.

December 23, 2003.

Summary:

The accused was charged with contravening ss. 170(1) and 103(1)(a) of the Highway Traffic Act. The accused raised a constitutional issue disputing the constitutionality of s. 170(1) of the Act. As a preliminary issue, the Attorney General of Alberta argued that the court did not have jurisdiction to hear the constitutional challenge.

The Alberta Provincial Court held that a factual basis had not been established for it to consider a constitutional challenge to s. 170(1).

Civil Rights - Topic 8582

Canadian Charter of Rights and Freedoms - Practice - Charter application - Grounds for precluding - [See Civil Rights - Topic 8590 ].

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - The accused was charged with contravening ss. 170(1) and 103(1)(a) of the Highway Traffic Act - The accused raised a constitutional issue disputing the constitutionality of s. 170(1) - That section provided that the owner of a motor vehicle involved in a contravention of the Act or a municipal bylaw was guilty of an offence unless the owner proved that at the time of the offence the motor vehicle was not being driven or was not parked or left by the owner or by any person with the owner's consent - The accused argued that the "no consent defence" in s. 170(1) raised a presumption against him and breached s. 11(b) of the Charter - The Alberta Provincial Court held that a factual basis had not been established for it to consider a constitutional challenge to s. 170(1) where the accused had not brought forth sufficient evidence to raise the "no consent defence" in this case.

Cases Noticed:

R. v. Free (1990), 110 A.R. 241 (Q.B.), refd to. [para. 14].

R. v. Miller (1987), 66 Alta. L.R.(2d) 397 (Q.B.), refd to. [para. 14].

R. v. Hedayat (A.G.) (1992), 133 A.R. 303; 41 M.V.R.(2d) 218 (Q.B.), refd to. [para. 14].

R. v. Doherty (B.) (1999), 257 A.R. 67 (Prov. Ct.), refd to. [para. 14].

R. v. Sosnowski (1989), 68 Alta. L.R.(2d) 123 (Q.B.), refd to. [para. 14].

R. v. Carlson (J.M.) et al., [2003] A.R. Uned. 526 (Q.B.), consd. [para. 15].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161; 11 C.C.C.(3d) 481, refd to. [para. 17].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 18].

Counsel:

John Benkendorf, for the Crown;

M. Naeem Rauf, for the respondent;

Nick Parker, for the applicant/intervener.

This matter was heard before Bridges, P.C.J., of the Alberta Provincial Court, Judicial District of Edmonton, who delivered the following decision on December 23, 2003.