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MOTOR VEHICLES AND HIGHWAY TRAFFIC - Liability - Photo radar

Thursday, May 13, 2021 @ 6:21 AM  


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Appeal by the accused, Bernier, from a summary conviction appellate decision affirming the constitutionality of the photo radar speeding offence provisions. The accused was charged with two counts of speeding as owner of a vehicle detected by photo radar. He defended the tickets on the basis that the relevant provision, s. 229 of the Highway Traffic Act, was unconstitutional, as it required rebuttal of the presumption that he was the driver. The accused submitted that the provision contained an impermissible reverse onus that violated the presumption of innocence. The accused was convicted at trial. The conviction was upheld by a summary conviction appeal court. The accused obtained leave to appeal to the Court of Appeal.

HELD: Appeal dismissed. In 1988, the court considered the constitutionality of s. 229 of the Highway Traffic Act in R v. Gray and concluded that the provision did not create a reverse onus that violated the presumption of innocence. There was no basis for finding that Gray was wrongly decided. Any liability under s. 229 arose with respect to ownership of the vehicle rather than a presumption regarding identity of the driver. The provision did not violate s. 11(d) of the Canadian Charter of Rights and Freedoms, as it did not create a possibility of conviction in the face of a reasonable doubt as to ownership and/or the traffic infraction. Such interpretation was consistent with the public welfare context of the legislation. There was no compelling or exceptional circumstance that justified overturning Gray.

R. v. Bernier, [2021] M.J. No. 69, Manitoba Court of Appeal, F.M. Steel, M.M. Monnin, D.M. Cameron, W.J. Burnett and C.J. Mainella JJ.A., March 11, 2021. Digest No. TLD-May102021008