SCC Reference re Section 94(2) B.C. Motor Vehicle Act

BenBranklin
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SCC Reference re Section 94(2) B.C. Motor Vehicle Act

by: BenBranklin on
Tue Jul 10, 2012 11:38 am

Facts:
1st offence - Going to trial in Oct. - Offered plea deal at summons but decided to see what other options I might have. (For non paid ticket)
Was offered $500fine for no license.

My first question is does the SCC reference re Section 94(2) B.C. Motor Vehicle Act apply as a defense to the charge based on the fact that I could be setenced to jail, and the Act in question therefore violates the principles of Justice (Sec.7 Charter)
Has this been used as a defense to driving while suspended given that it's an absolute liability defense?
If so, should I file an 11(b) as a Charter challenge? Or do I simply raise this case as precedent to the Justice?


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by: Stanton on
Tue Jul 10, 2012 12:41 pm

Driving under suspension in Ontario is not an absolute liability offence, but rather a strict liability offence. Therefor that particular argument would not apply.

And just to clarify, an 11b Charter argument is for unreasonable delay going to trial, not for all Charter violations. If driving under suspension was an absolute liability offence, you'd have to argue for the actual section it violates, which I believe is Section 7.


BenBranklin
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by: BenBranklin on
Tue Jul 10, 2012 6:00 pm

Ah I understand.

Isn't the risk of going to jail merely for an unpaid fine, a violation of the fundamental principles of justice as defined in Sec. 7 of the Charter? Seems unfair to me.

What possible defense do I really have under strict liability as compared to absolute?


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by: Stanton on
Tue Jul 10, 2012 6:39 pm

You'd have to research case law, but I'm guessing it's not a violation of Section 7 or it would have been repealed ages ago.

There is a slightly higher threshold for charges that may involve incarceration, because unlike regular tickets where if you fail to show you're convicted, there will be a trial held even in your absence prior to any conviction.

In regards to strict liability, it simply allows for a possible defence of due diligence. You'd have to show that that you took all reasonable steps to comply with the law and that at the time of the offence you reasonably believed you were licensed. Now that may be easier said then done, so don’t take a gamble on a trial unless you’re sure you can meet that threshold.


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by: Simon Borys on
Sun Aug 12, 2012 5:48 pm

The risk of going to jail for drive suspend does not violate s. 7. All the SCC was saying in the BC MV case was that where there is a risk to liberty (where you can go to jail) it can't be for an absolute liability offence. THAT would be a violation of s. 7. As was said, drive suspend is NOT an absolute liability offence, it's strict.
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