Summary conviction appeal from a Judicial Justice of the Peace and Provincial Court Judge Date: 20181031 Docket: CR 17-01-36275 (Winnipeg Centre) Indexed as: R. v. Grant Cited as: 2018 MBQB 171 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: ) APPEARANCES: ) HER MAJESTY THE QUEEN, ) Andrew Slough and Respondent ) Breanne James ) for the Crown - and - ) ) Markus Buchart ) for the appellant GENEVIEVE L. GRANT, ) Appellant. ) Judgment delivered: ) October 31, 2018 TOEWS J. Introduction [1] This is an appeal by Genevieve L. Grant (the appellant) from a conviction for speeding contrary to s. 95(1) of The Highway Traffic Act, C.C.S.M. c. H60 (the HTA ). The appellant was charged as the registered owner of a motor vehicle that was photographed by virtue of the Image Capturing Enforcement System, commonly referred to as photo radar. [2] The appellant was convicted by a Judicial Justice of the Peace ( JJP ) following a trial on August 21, 2017, who summarily dismissed an application for s. 11(d) Charter
PAGE: 2 relief in respect of an allegation of unconstitutional delay. Following the trial, a further application for relief pursuant to s. 11(d) of the Charter was dismissed by a provincial judge on August 23, 2017. [3] This appeal is commenced pursuant to ss. 813 and 830 of the Criminal Code (the Code ), which are incorporated by reference pursuant to The Summary Convictions Act, C.C.S.M. c. S230 ( SCA ). Section 813 of the Code provides for an appeal in a summary conviction proceeding to this court while s. 830(1) of the Code provides that an appeal to this court against a conviction, judgment, or other final order is available on the ground that: (a) (b) (c) it is erroneous in point of law; it is in excess of jurisdiction; or it constitutes a refusal or failure to exercise jurisdiction. The Facts [4] In addition to the procedural history and facts set out in the introduction, it is apparent from the record before the court that: The alleged offence occurred on February 6, 2016; The offence notice (Exhibit 1 in this appeal) in respect of the offence was issued by V. Doberstein on February 11, 2016 who is identified as a peace officer on the face of Exhibit 1; Schedule E at page 16 of the appeal book is entitled Statement of Peace Officer Respecting Image Capturing Enforcement Evidence and, inter alia, identifies the
PAGE: 3 rank of the peace officer who issued offence notice as Special Constable and the name of the police service as Winnipeg Police Service ; The appellant pleaded not guilty to the charge by mail whereupon the court set the matter down for trial on August 21, 2017; and The time that elapsed from the offence notice issue date until the date of the trial exceeded 18 months by approximately 10 days. The Issues [5] The Crown has identified and dealt with the points in issue, albeit in a different order, as follows: a) Did the JJP err in dismissing the motion to quash the information? b) Did the presiding (provincial) judge err in granting summary dismissal of the delay motion? c) Did the JJP err in imposing a driving suspension as part of the offence? [6] The appellant has raised a number of issues which were dealt with in a summary manner by the JJP or the provincial judge. I intend to refer to, if not deal with, those matters and the applicable standard of review in the context of the issues identified by the Crown. Analysis and Decision 1. Did the JJP err in dismissing the motion to quash the information? [7] The appellant argues that the offence notice is void ab initio because the person who issued the offence notice is a special constable who does not have any authority to
PAGE: 4 issue an offence notice. He states that under the SCA, which governed these proceedings at the time of the offence, only a peace officer may issue an offence notice. [8] The appellant points out that the SCA does not define peace officer and argues that the applicable definition of peace officer is found in The Police Services Act, S.M. 2009, c. 32 (the PSA ). She states that while seven of the eight classes of police officers set out in the PSA are defined as peace officers, special constables, which are dealt with in Part 8 of the PSA, are not. [9] She argues that the failure of the Lieutenant Governor to proclaim s. 80 of the PSA means that special constables are not peace officers and therefore the offence notice is void ab initio. [10] It is instructive to reproduce the following provisions of the PSA, including the unproclaimed s. 80 of the PSA: "director" means the person appointed as the Director of Policing under section 3. («directeur») "special constable" means a special constable appointed under Part 8. («agent de police special») Director of policing 3 A Director of Policing is to be appointed as provided in The Civil Service Act. Appointing special constables PART 8 SPECIAL CONSTABLES 78(1) The director may appoint an individual or class of individuals as special constables, subject to any terms or conditions that the director considers appropriate.
PAGE: 5 Qualifications 78(2) An individual may be appointed as a special constable only if he or she has the prescribed qualifications. Applications 78(3) Except in exigent circumstances, an application for the appointment of a special constable must be made in writing to the director on a form approved by the director. Appointment requirements 78(4) The appointment of a special constable must be made in writing and must set out (a) the duties and responsibilities of the special constable; (b) the territorial jurisdiction of the special constable; (c) the term of the appointment; and (d) any terms or conditions imposed on the appointment. Revoking appointment 79 The director may revoke the appointment of a special constable. Peace officer status 80 Subject to any limitations imposed on his or her appointment, a special constable has the powers and protections of a peace officer when carrying out the duties and responsibilities set out in his or her appointment. (not proclaimed) Responsibility for special constables 81(1) The employer of a special constable is responsible for ensuring that a special constable carries out the duties and responsibilities set out in his or her appointment in a proper manner. Liability for special constable 81(2) The employer of a special constable is liable for the actions of the special constable while he or she is carrying out the duties or responsibilities set out in his or her appointment. Regulations 82 The minister may make regulations respecting special constables, including regulations respecting (a) the training of special constables;
PAGE: 6 (b) the performance of duties and responsibilities by special constables; and (c) information and documents to be provided to the director by the employer of a special constable. [11] In dismissing the motion to quash, the JJP stated: So, this motion to quash this ticket was raised during closing arguments. These types of motions should clearly be made prior to the trial starting and therefore I am dismissing this motion. [12] The respondent states that this decision is in accordance with the Practice Directives For Contested Applications In The Provincial Court of Manitoba 2013 which provides at 6.04(1) that an application of this nature shall be filed in court not less than 30 days before the hearing date of the application. Since the appellant had not complied with this practice directive, and given the discretionary nature of the decision of the JJP, it was appropriate to dismiss the motion. [13] In my opinion the JJP s reasons for dismissing the application is correct on the basis of the argument advanced by the respondent and therefore I would dismiss this ground of appeal. However, I wish to go further and discuss the substantive issues raised by the appellant in this context because a discussion of those issues demonstrates why compliance with the practice direction is necessary for the proper administration of justice. [14] In my opinion, the appellant s submission that a special constable is not a peace officer because the SCA does not define that term is not a matter that can be determined on the basis of the material before the court. In my opinion, simply because the SCA does not define peace officer, and the fact that s. 80 of the PSA has not been
PAGE: 7 proclaimed, does not means that a special constable, or that the officer or constable in this particular case is unable to issue an offence notice pursuant to the SCA. [15] In my opinion, there is a persuasive argument to be made that it is The Interpretation Act, C.C.S.M. c. I80 (the IA ) which provides the relevant definition of peace officer in this case. The IA provides the following introductory provisions which guide the interpretation of legislation passed by the Manitoba Legislature: 2 This Act applies to the interpretation of every Act and regulation whether enacted or made before or after this Act comes into force unless a contrary intention appears in the other Act or regulation. This Act applies to its own interpretation 3 This Act applies to the interpretation of this Act. Common law rules continue to apply 4 Nothing in this Act prevents the use of common law interpretive rules that are not inconsistent with this Act. [16] Further, section 17 of the IA provides: 17 The definitions in the Schedule apply to every Act and regulation. [17] In turn, the SCHEDULE OF DEFINITIONS (Section 17) provides the following definition: "peace officer" includes (a) a mayor, reeve, sheriff, deputy sheriff, sheriff's officer, and justice of the peace, (b) a correctional officer of a penitentiary, custodial facility or other place of detention, and any other officer or person who is in the service of the government and is employed in a penitentiary, custodial facility or place of detention, (c) a police officer, police constable, constable, special constable, and any other person employed to preserve and maintain the public peace, (d) a member of the Royal Canadian Mounted Police, and (e) a person appointed under any Act for the enforcement of that Act; («agent de la paix») (emphasis added)
PAGE: 8 [18] Whatever arguments might be raised in respect of some of the other terms set out in the definition of peace officer found in the SCHEDULE OF DEFINITIONS (Section 17) where those other terms are utilized in other statutes, if there is no contrary intention that appears or inconsistency which arises in the SCA, then it is the definition of peace officer found in the IA which would apply to the interpretation of that term as it is used in the SCA. [19] In my opinion, the fact that s. 80 of the PSA has not been proclaimed, does not necessarily lead to the legal conclusion that a special constable is not a peace officer. While the general legislative provision legislative of the PSA provides peace officer status to the other seven classes of police officers set out in the PSA, in accordance with s. 78 of the PSA the duties and powers of a special constable are set out in his or her appointment by the director appointed under the PSA who may appoint an individual or class of individuals as special constables, subject to any terms or conditions that the director considers appropriate. [20] Similarly, in respect of the HTA, which is the legislation which creates the substantive offence of speeding pursuant to s. 95(1) of that act, the fact that the definition of peace officer does not specifically mention special constable, does not preclude the applicability of the definition of peace officer in the IA. [21] Nor does the evidence here establish that simply because the person issuing the offence notice is described as having the rank of special constable means that he or she is not a peace officer. On the face of Exhibit 1 and Schedule E (at page 16 of the appeal book) the person issuing the offence notice is not only described as a special
PAGE: 9 constable but also as a peace officer. On the basis of the information before me, I can only conclude that the person who issued the offence notice in this case had the authority to do so. In my opinion there is no basis here to challenge the authority exercised by the person issuing the offence notice. [22] More to the point in respect of why the JJP dismissed the appellant s argument in this particular case, in my opinion the argument raised by the appellant demonstrates precisely why the Practice Directives For Contested Applications In The Provincial Court of Manitoba 2013 provides that an application of this nature shall be filed in court not less than 30 days before the hearing date of the application. Had the proper filing dates been complied with, the appropriate material could have been filed in order to respond to the arguments raised. Raising an argument of this nature without regard to the process established by the Provincial Court and indeed, raising it in the course of the closing arguments, is inappropriate and therefore it was properly dismissed. 2. Did the presiding (provincial) judge err in granting summary dismissal of the delay motion? [23] In my opinion, the respondent properly sets out the why this court ought not to interfere with the decision of the provincial judge who dismissed the s. 11(d) Charter motion summarily. The respondent properly summarizes the case law when it states in its factum: 29. Practice Directive 6.04(1) requires that a Notice of Application be filed with the court and then on all respondents at least two days before the first returnable date and not less than 30 days before the hearing of the application. Section 11(b) Charter applications are pre-trial motions. As such, it does not make sense to file for a date beyond the trial date forcing the trial to be adjourned and the matter further delayed.
PAGE: 10 30. The Practice Directives were disregarded in this situation; the Appellant did not file within 30 days of the trial. In fact, the trial had already concluded by the time the motion made a first appearance. The Practice Directives contain rules and guidelines to assist justice participants in ensuring that matters in Provincial Court are dealt with justly and efficiently. 31. Delay motions that are brought on the eve of trial are counter-productive. Not only do they cause further delay of the matter they pertain to, but they add delay to the system as a whole..... 38. Finlayson P.J. had all relevant information regarding the application before him when dismissing the motion summarily. He had the legal authority to rule on the Appellant s requests and did not commit palpable and overriding error in doing so. The reason given for the delay in filing the delay motion was simply not reasonable and there is no basis upon which to interfere with the decision. [24] Furthermore, for the reasons which I delivered in R. v. Grant, 2017 MBQB 39, 376 C.R.R. (2d) 316 (R. v. Grant #1) (leave to appeal granted R. v. Grant, 2017 MBCA 84, [2017] M.J. No. 247, per Cameron J.), the delay in bringing this matter to trial does not violate s. 11(d) of the Charter. I acknowledge that in this case the presumptive ceiling established by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, was exceeded by 10 days while in R. v. Grant #1, the delay was approximately a week under the presumptive ceiling. [25] Given that this case and R. v. Grant #1 are transitional cases as that term is utilized in Jordan, where the delay is only a few weeks on either side of the presumptive ceiling, the reasoning in R. v. Grant #1 is applicable here as well. [26] In particular, I stated at para. 52 of that decision: 52. I accept as applicable to this appeal the finding of the Associate Chief Judge of the Provincial Court in Lakshman-Janjua who held that for this type of offence: I cannot say that in the circumstances of this case this took markedly longer as I understand the Supreme Court in Jordan, and considering
PAGE: 11 particularly context and the reliance of the previous law and the situation in the Province of Manitoba with respect to these matters. [27] In the result, I would dismiss this ground of appeal as well. 3. Did the JJP err in imposing a driving suspension as part of the offence? [28] The HTA provisions relevant to the appellant s sentence of a driving suspension are as follows: 95(1) Subject to subsections 98(1) to (5) and section 98.1, no person shall drive a vehicle at a rate of speed greater than [the designated or stipulated speed]..... 229(4) An owner who is guilty of an offence under subsection (2.1) is liable, on summary conviction, to the penalty to which the driver or person having care, charge or control is subject except that the owner is not liable to imprisonment..... 238(3) When a person is convicted of an offence under subsection 95(1) or (2), or subsection 98(5) or (7), the convicting judge or justice may, in addition to any other penalty prescribed under this Act, suspend the licence of the person (a) for a first offence for a period of not more than three months; and (b) for a second or subsequent offence for a period of not more than one year..... 261(1) A judge or justice who convicts any person (a) of an offence under this Act or under any other Act of the Legislature or of the Parliament of Canada committed in the operation of a motor vehicle; or (b) of an offence under a municipal by-law passed pursuant to this Act, committed in the operation of a moving motor vehicle; shall forthwith certify the conviction or judgment to the registrar in such form as the registrar may require, setting out the name, address, and description, of the person convicted or so adjudged, the nature and number of his licence, if any, the registration number of the motor vehicle with which the offence or violation was committed, the name of the Act or by-law, and the number of the section thereof, contravened, and the time the offence was committed. 261(1.1) Subsection (1) does not apply to an offence under subsection 88(7) or (9) (red light offences), subsection 95(1) (speeding offences) or clause 134(1)(b) or (c) (railway crossing offences) if the evidence of the offence was obtained by an image capturing enforcement system.
PAGE: 12 [29] In this case Crown counsel requested, and the JJP imposed, a six-month licence suspension on the appellant after the JJP convicted the appellant of the offence. Those submissions are set out in the August 21, 2017 transcript of proceedings before the JJP included in the Appeal Book. As is evident from the transcript, the Crown took this admittedly unusual position at the sentencing of the appellant even though she was convicted as the registered owner and not the driver. The position of the Crown was based on the numerous photo radar tickets (approximately 35) which the appellant had accumulated over a 10 or 11-year period in respect of a number of vehicles registered in her name. [30] The appellant argues it would be unfair to impose this type of sentence in view of the fact that s. 261(1.1) of the HTA does not require the convicting judge or justice to forward a certificate of conviction to the registrar of motor vehicles where the evidence of the offence was obtained by an image capturing enforcement system. This is in contrast to convictions not involving offences where the evidence was not obtained by an image capturing enforcement system. It is apparent that this distinction is based on the fact that where the evidence of the offence was obtained by an image capturing enforcement system there is no proof of who was actually driving the motor vehicle. [31] Nevertheless, the legislation provides for the possibility of such a penalty, and fair or not, such a penalty is authorized by the legislation in respect of a person charged as the registered owner of a motor vehicle. When such a penalty is imposed on a registered owner, the convicting justice or JJP would forward a copy of the certificate of conviction
PAGE: 13 to the appropriate licencing authority where it would form a part of the convicted person s driving record or National Safety Code profile as a necessary part of the enforcement of the suspension that has been imposed. [32] However, my concern here is not that the legislation properly authorizes a suspension as a possible penalty for a conviction and therefore the inclusion of the conviction as a part of the convicted person s driving record or National Safety Code profile. My concern in this case is that the offence notice itself stipulates in bold and capitalized lettering that: A CONVICTION FOR THIS OFFENCE WILL NOT BE RECORDED ON YOUR DRIVING RECORD OR NATIONAL SAFETY CODE PROFILE. [33] In this case it is clear that the only reason a licence suspension was imposed is that the appellant chose to plead not guilty and at the conclusion of a contested trial Crown counsel requested the suspension based on the appellant s record of offences arising out of the number of photo radar convictions entered in respect of motor vehicles registered in her name. [34] In my opinion, the proceedings employed here in prosecuting the appellant improperly imposed an additional penalty on her for pleading not guilty since those who plead guilty would not be in jeopardy of losing their licence by virtue of the fact that the certificate of conviction would not be recorded on their driving record. [35] Although a suspension is available as a penalty pursuant to the legislation, in view of the assurance made to the appellant at the commencement of this prosecution (when she received the offence notice) that a conviction for this offence will not be recorded on
PAGE: 14 her driving record, the imposition of a licence suspension in these cases ignores a very crucial and relevant factor when arriving at the sentence. The conviction in her case was obviously recorded on her driving record in order to ensure the effectiveness of a suspension. [36] In my opinion, while the conviction was properly entered, the disposition in respect of the licence suspension was not. While the suspension has been served, and therefore cannot be undone, the appellant is not without any remedy. The appropriate disposition is to vacate or reverse the suspension of her driver s licence, along with eliminating or refunding any administrative or monetary penalties associated with this suspension (in contrast to the judicial monetary penalty which was properly imposed by the JJP) and order that a conviction for this offence and the suspension imposed not be recorded on her driving record. [37] If the respondent wishes to ensure that in future cases a suspension of a driving licence is available to the judge or justice as a disposition in appropriate cases, it may wish to review and amend the form of offence notices that presently assure an accused that a conviction for photo radar offences will not be recorded on his or her driving record or National Safety Code profile. Conclusion [38] In the result, I conclude that: a) The JJP did not err in dismissing the motion to quash the information; b) The presiding judge did not err in granting summary dismissal of the delay motion; and
PAGE: 15 c) In view of the assurance received by the appellant at the commencement of this prosecution (when the appellant received the offence notice) that a conviction for this offence would not be recorded on her driving record, the JJP erred in imposing a driving suspension as part of the offence. Accordingly, I order that the licencing authorities vacate or reverse the suspension of her driver s licence, along with eliminating or refunding any administrative or monetary penalties associated with this suspension (in contrast to the judicial monetary penalty which was properly imposed by the JJP) and order that a conviction for this offence and the suspension imposed will not be recorded on her driving record. [39] A copy of this decision is to be provided to the appropriate licencing authority by the respondent so that the appropriate administrative action can be carried out in order to comply with this decision. J.