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Vicarious liability is unconstitutional
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PostPosted: Sat Nov 01, 2008 7:44 pm 
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Joined: Thu Oct 16, 2008 4:57 pm
Posts: 256
Location: Planet X
The HTA is a quasi-criminal statute and the owner of a vehicle can be charged with an offence even if he is not the driver at the time the offence occurred. This is evidenced under many sections, including speeding tickets if photo radar returns. See s. 207 below.

This also occurs for parking tickets, wherein the owner of the vehicle is liable for the ticket despite not being the driver at the time the ticket was issued.

However, it is not illegal to lend your vehicle to someone, and vicarious liability has no role in quasi-criminal statutes; and is not in accordance with the principles of fundamental justice.

Therefore, any section of the HTA or a municipal By-law that holds an owner liable when the owner was not the driver is unconstitutional as it violates s. 7 of the Charter, is not saved under s. 1 of the Charter, and, thus, is of no force and effect.

R. v. DOYLE (1988) 9 MVR (2d) 23

R. v. BEARE (1987) 34 CCC (3d) 193

R. v. OAKES (1986) 1 SCR 103


Vehicle owner may be convicted

207. (1) Subject to subsection (2), the owner of a vehicle may be charged with and convicted of an offence under this Act or the regulations or any municipal by-law regulating traffic for which the driver of the vehicle is subject to be charged unless, at the time of the offence, the vehicle was in the possession of some person other than the owner without the owner’s consent and on conviction the owner is liable to the penalty prescribed for the offence. R.S.O. 1990, c. H.8, s. 207 (1).
When owner not liable

(2) The owner of a vehicle, except if the owner is also the driver, shall not be convicted for a contravention of,

(a) subsection 106 (2) or (4);

(b) sections 129 to 143, subsections 144 (1) to (17), subsections 144 (19) to (32), sections 145 to 168, section 172, subsections 175 (1) to (10), subsections 175 (13) to (18) or section 176, 182 or 199;

(c) a regulation or by-law made or passed under a section or subsection referred to in clause (a) or (b) or under section 106; or

(d) a by-law passed under any Act regulating or prohibiting turns on a highway. 1993, c. 31, s. 2 (10); 1998, c. 38, s. 5 (1); 2004, c. 22, s. 6 (1); 2006, c. 25, s. 3.

Permit holder deemed owner

(3) For the purposes of this Act or any municipal by-law regulating or prohibiting parking, standing or stopping, the holder of a permit as defined in section 6 shall be deemed to be the owner of the vehicle referred to in the permit if a number plate bearing a number that corresponds to the permit was displayed on the vehicle at the time an offence was committed unless the number plate was displayed thereon without the holder’s consent, the burden of proof of which shall be on the holder. R.S.O. 1990, c. H.8, s. 207 (3).

Exposing number plate

(4) For the purposes of this Act or any municipal by-law regulating or prohibiting parking, standing or stopping, where a number plate issued under section 7 is exposed on a motor vehicle, the holder of the permit corresponding thereto shall be deemed to be the owner of that vehicle unless the number plate was exposed thereon without the permit holder’s consent, the burden of proof of which is on the permit holder. R.S.O. 1990, c. H.8, s. 207 (4).

No imprisonment or probation

(5) Any person convicted of an offence pursuant to subsection (1) is not liable to imprisonment or to a probation order under subsection 72 (1) of the Provincial Offences Act as a result of the conviction or as a result of default in payment of the fine resulting from the conviction. 2005, c. 26, Sched. A, s. 31 (1).

Owner liability, photo-radar system evidence

(6) The owner of a motor vehicle shall not be charged as an owner with an offence under section 128 unless the evidence of the offence is obtained through the use of a photo-radar system. 1993, c. 31, s. 2 (11).

Limitation

(7) An owner of a motor vehicle convicted of an offence under section 128 on the basis of evidence acquired through the use of a photo-radar system or under subsection 175 (19) or (20) is not liable to imprisonment, a probation order under subsection 72 (1) of the Provincial Offences Act or a driver’s licence suspension as a result of that conviction or as a result of default in payment of a fine resulting from that conviction. 2004, c. 22, s. 6 (2).

Owner liability, red light camera system evidence

(8) The owner of a motor vehicle shall not be charged as an owner with an offence under subsection 144 (18) unless the evidence of the offence is obtained through the use of a red light camera system in an area designated for the purposes of subsection 205.15 (1). 1998, c. 38, s. 5 (2).

Definition

(9) In this section,

“owner” includes an operator as defined in section 16 or as deemed in section 19. 2005, c. 26, Sched. A, s. 31 (2).

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