Governing Legislation and Resources for Motor Vehicle Law (13:II)

A. Provincial Driving Offences

1. Authority of Peace Officers

According to the Supreme Court of Canada in R v Ladouceur, [1990] 1 SCR 1257, 56 CCC (3d) 22, random checks by the police for motor vehicle fitness, possession of valid driver’s license and proper insurance, as well as sobriety of driver constitute arbitrary detention contrary to s 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. However, these checks are considered reasonable limits under s 1 of the Charter so long as they are “truly random routine checks”: R v McGlashen, [2004] OJ No 468, 115 CRR (2d) 359. The Ladouceur decision was affirmed in R v Orbanski, 2005 SCC 37, [2005] 2 SCR 3.

Pursuant to MVA s 79 a peace officer may arrest without warrant any person:

• a) whom the officer finds driving a motor vehicle, and who the officer or constable has reasonable and probable grounds to believe was driving in contravention of MVA ss 95 or 102 (driving while prohibited)(s 79(a)); or
• b) whom the officer has reasonable and probable grounds to believe is not insured or who is driving without a valid and subsisting motor vehicle liability insurance card or financial responsibility card (s 79(b)); or
• c) whom the officer has reasonable and probable cause to believe has contravened MVA s 68 (leaving the scene of an accident) (s 70(c)) and may detain the person until he or she can be brought before a justice.

2. Procedure

NOTE: MVA s 124 gives municipalities authority to create motor vehicle bylaws on matters such as parking and to enforce them by fine or imprisonment under s 124(1)(u). Municipalities cannot use this authority with respect to speeding (s 124(2)). An individual charged with a bylaw offence will receive a bylaw infraction notice or a Municipal Ticket Information. While the following generally applies to these offences, special procedures may be imposed. Follow the procedures outlined on the bylaw infraction notice or Municipal Ticket Information.

An individual charged with a provincial offence will likely receive a violation ticket issued under s 14 of the OA. However, under s 11 of the OA, an Information can also be laid against the accused. This is for serious offences such as MVA ss 95 and 102 (driving while prohibited). Court attendance is compulsory when an Information is laid, but, in the case of a violation ticket, court attendance is only required if a violation ticket is disputed. A special procedure for adjudicating violation tickets is set out in ss 14-18 of the OA. To dispute a violation ticket, one must either appear in person at any Motor License Office, Government Agent’ s Office, or Provincial Court Registry with a copy of the Violation Ticket or mail a copy of the Violation Ticket to: Ticket Dispute Processing, Bag #3510, Victoria, BC, V8W 3P7. The notice of dispute must contain the address of the accused and sufficient information to identify the violation ticket and the alleged contravention or fine disputed (OA s 15(3)).A person has 30 days to make his or her intention to dispute known (OA s 15(1)). Read the reverse side of violation tickets as these regulations and procedures may change from time to time. If a client does not dispute the violation ticket within 30 days, he or she is deemed to have pled guilty under OA s 16. A person still has 14 days to appear before a justice, with an affidavit, to state why it was not his or her fault that the deadline was missed (OAs 16(2)). A violation ticket dispute is heard in Provincial Court by a judge or justice of the peace who, after hearing the evidence, determines whether or not the violation took place. If an accused misses the Provincial Court hearing, he or she has 30 days to appear before a justice, with an affidavit, to explain why he or she missed the hearing (OA s 15(9.1)).In challenging a ticket, it is important to: Appear at the appointed time. There is always the possibility the peace officer will not appear and the case will be dismissed due to lack of evidence. Read the relevant sections of the MVA to determine the elements of the offence and, if the Crown fails to lead evidence on any of these elements, motion for dismissal at the conclusion of the Crown’ s presentation. The evidence must include identification of the alleged offender by name and address as well as the time, date, and location of the offence. Pursuant to provisions in the OA, the Crown can easily amend most mistakes on Violation Tickets. If the offender can show economic hardship, the judge has the power to reduce the fine. Section 88 of the OA states that the fine can be reduced based on the offender’ s means and ability to pay, subject to minimum fines specified in the MVA. Consider whether the offence is strict or absolute liability. If the offence is strict liability, consider whether the accused may have the defence of due diligence. Generally, this