



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Miller v. British Columbia,









2010 BCCA 39




Date: 20100127

Docket:
CA037166

Between:

Mark Andrew Miller

Respondent

(
Petitioner
)

And

Her
Majesty the Queen in right of British Columbia

(
Respondent
)

And

The Attorney
General of British Columbia

Appellant

(
Respondent
)




Before:



The Honourable Mr. Justice Donald





The Honourable Madam Justice Levine





The Honourable Mr. Justice Lowry




On
appeal from:  Supreme Court of British Columbia, April 30, 2009
(
R. v. Miller
, 2009 BCSC 591, Docket S-082860)




Counsel for the Appellant:



J.
  Penner





Appearing for the Respondent:



No
  one





Place and Date of Hearing:



Vancouver,
  British Columbia





January 13, 2010





Place and Date of Judgment:



Vancouver
, British Columbia





January
  27, 2010









Written Reasons by
:





The Honourable Mr. Justice Lowry





Concurred in by:





The Honourable Mr. Justice Donald

The Honourable Madam Justice Levine






Reasons for
Judgment of the Honourable Mr. Justice Lowry:

[1]

The question is whether a deemed guilty plea for
a motor vehicle regulatory violation constitutes a breach of the
Charter
rights
to the presumption of innocence and a fair public hearing.

The Plea

[2]

Mark Miller has a remarkably bad driving record:
15 convictions within five years resulting in driving prohibitions of four
months in duration in each of 2006 and 2007.  In April 2008, he was given
notice pursuant to s. 93(1) of the
Motor Vehicle Act
, R.S.B.C. 1996, c.
318, that the Superintendent of Motor Vehicles intended to impose a third four-month
prohibition.  Mr. Miller had 34 penalty points on his driving record, recorded
by the Insurance Corporation of British Columbia as required by s. 28.01
of the
Motor Vehicle Act Regulations
, B.C. Reg. 26/58, five points
having been added since the end of his second prohibition.

[3]

From his record, which was attached to the
notice, he determined three of the points pertained to a violation of s. 7A.01
of the
Motor Vehicle Act Regulations
for which he received a ticket on
26 December 2007.  That section prohibits operating a vehicle in a manner that
causes any loud or unnecessary noise from the exhaust system.  The amount of
the fine, which was written by the attending officer on the ticket, was $109.

[4]

Under s. 16(1) of the
Offence Act,
R.S.B.C.
1996, c. 338, Mr. Miller was deemed to have pleaded guilty to the violation on
26 January 2008 because he did not dispute the ticket within 30 days.  The
ticket was in the form prescribed by s. 2 of the
Offence Act Forms Regulation
,
B.C. Reg. 422/90, en. B.C. Reg. 122/2008, Sch. 2, s. 1, and contained
the following statements:

If the
allegations or fines are not disputed (see reverse) within 30 days, this ticket
will be treated as not disputed, you will be deemed to have pleaded guilty to
the alleged offence(s) and to owe the Crown the ticketed amounts.  Your
signature indicates you have received this ticket and is not an admission of
guilt.

* * *

what
happens if I do not pay?

If you do not pay or dispute this ticket
within thirty (30) days of the Date of Service, the ticketed amount shown on
the front will be payable to the Crown.  The described offence(s) will be added
to your record as convictions.  In addition, you will be subject to collection
activity.

[5]

Mr. Miller paid the fine.  He maintains that,
although he had determined the exhaust system on his vehicle complied with the
applicable government standards, he paid the fine because it was not then worth
his time to dispute the ticket.

[6]

In April 2008, when he received notice of the
intended third prohibition, and realized the s. 7A.01 violation added three
points to his driving record, he changed his mind.  However, by virtue of s.
16(2.1) of the
Offence Act,
he was precluded from disputing the ticket
before a Judicial Justice of the Peace because he had no genuine intention to
do so before the 30-day dispute period expired, as required by subsection (2.1)(b).

[7]

Mr. Miller applied by way of judicial review
before the Supreme Court for an order quashing his deemed guilty plea on the
basis that s. 16 of the
Offence Act
was contrary to the right to the
presumption of innocence guaranteed by s. 11(d) of the
Charter.
The
judge who heard the application granted the relief sought but on a much
different basis.  The reasons he gave are indexed as 2009 BCSC 591.

The Judgment

[8]

The judge permitted Mr. Miller to convert his
petition to a writ and statement of claim as being the proper form in which to
challenge the constitutionality of legislation, but he made no determination
that any part of s. 16 of the
Offence Act
was unconstitutional.  Indeed
he concluded otherwise.  However, he determined the deemed guilty plea was,
nonetheless, to be quashed under s. 24(1) of the
Charter
because Mr.
Miller was not sufficiently informed of the consequences of failing to dispute
the ticket when it was given to him or before the 30-day dispute period had
expired.  In particular, he was not informed a deemed guilty plea would result
in three points being added to his driving record.  That was not stated on the
ticket.

[9]

The judge purported to apply what was said in
R.
v. Richard
, [1996] 3 S.C.R. 525, 110 C.C.C. (3d) 385.  There, in
considering a constitutional challenge to New Brunswick legislation that was,
in material respects, comparable to the motor vehicle legislation in this
province, speaking for the court, La Forest J. concluded:

[32]  In my view, in a context in which
litigants cannot be imprisoned for offences of a regulatory nature, it is open
to both the provincial legislatures and Parliament to infer from the
failure
of those litigants
to act
that they have waived their right to be presumed
innocent and their right to a hearing and at the same time to have consented to
a conviction made against them, provided that under the procedural scheme
applicable to them, they are fully informed of the consequences of failing to
act and there are sufficient safeguards to prevent injustices from occurring.

[Emphasis of La
Forest J.]

[10]

The judge quoted that passage emphasizing the
words they are fully informed of the consequences of failing to act.  Indeed,
that phrase is the basis of his judgment.  He reasoned that, while a failure to
dispute a ticket within the time prescribed constitutes a waiver of
constitutional rights, there was no valid waiver attributable to Mr. Miller
because he did not have full knowledge of the consequences of not disputing the
ticket he was given.

[11]

Thus, rather than striking down s. 16 as being
unconstitutional, the judge effectively created a constitutional exemption in
relation to undisputed tickets.  He concluded the deemed guilty plea for which
s. 16(1) provides is constitutionally sound but inapplicable unless the person
receiving the ticket is informed of all the consequences of not disputing the
ticket including, in particular, the addition of any penalty points to the
persons driving record.

Discussion

[12]

In my view, it was not open to the judge to
grant the remedy he did fashioned on a constitutional exemption.  It is a
remedy that was not sought, and the Supreme Court of Canada appears to have
largely foreclosed remedies of that kind in
R. v. Ferguson
, [2008] 1
S.C.R. 96, 87 Alta. L.R. (4th) 203.  Although the case was concerned with
mandatory minimum sentences, it is seen as having a broad application:  Kent Roach,
Constitutional Remedies in Canada
, looseleaf (Aurora, Ont.: Canada Law
Book, 1994) at 14-28‒14-29 and 14-34‒14-35; and Peter W. Hogg,
Constitutional
Law of Canada
, 5th ed., Supp., vol. 2, looseleaf (Toronto: Thomson
Carswell, 2007) at 40-22.  That view was taken by this Court in
Victoria
(City) v. Adams
, 2009 BCCA 563.  While there may remain some place for
constitutional exemptions, the inherent case-by-case uncertainty to which they
can give rise precludes such remedies being granted in other than very limited
circumstances: see paras. 132-145.

[13]

The issue then is whether s. 16 of the
Offence
Act
, which imposes a deemed guilty plea in the absence of a ticket being
disputed within 30 days, impairs the
Charter
rights to the presumption
of innocence and a hearing such that it is constitutionally invalid, mandating
a remedy under s. 52(1) of the
Constitution Act, 1982
.

[14]

I consider s. 16 to be constitutionally sound. 
It does not impair any
Charter
rights but provides for a waiver of such which
the recipient of a ticket may choose by not disputing it.  I consider that,
pursuant to s. 16(1) of the
Offence Act
, Mr. Miller chose to waive his
s. 11(d) rights to the presumption of innocence and a hearing when he decided not
to dispute the ticket he received within 30 days time, even though he did not
know three penalty points would be added to his driving record by ICBC.

[15]

There is no suggestion in
Richard
that
knowledge of penalty points being added to a driving record is essential to an
informed waiver.  There was no consideration of the significance of penalty
points in that case and, in my view, such cannot be said to be part of the
consequences, as that term was employed by La Forest J., of which the
recipient of a ticket must be aware before an informed waiver can be made. 
What La Forest J. said rendered the New Brunswick legislation sufficient
to defeat the same kind of constitutional challenge made here was that the
legislation required: the recipient be informed that failure to act may result
in conviction; the ticket be delivered to the recipient personally; and the
recipient be made aware of the possibility of, and procedure for, having the
conviction set aside: see paras. 33-34.

[16]

In my view, what is to be taken from
Richard
for present purposes is that, before an informed waiver of the right to be
presumed innocent can be made, the recipient of a ticket must be informed that
if the ticket is not disputed within 30 days he or she will be deemed to have consented
to a conviction or, here, pleaded guilty.  The recipient will have waived the
Charter
rights of presumed innocence and a hearing such that the court will
then have no part in making a determination of guilt or imposing the prescribed
fine.  It is only the deemed guilty plea, and hence the loss of the recipients
s. 11(d) rights, that are the consequences of not disputing a ticket which
are germane to a valid waiver.  It is those consequences of which the recipient
who chooses not to dispute a ticket must be informed.

[17]

The addition of penalty points to a driving
record is an administrative function in which the court takes no part.  Points
do not affect any right a driver has but, rather, may affect what is a drivers
privilege to hold a licence.  Depending on the number of points that a driver
may have previously accrued, or may subsequently have added to his driving
record, the points added as a result of an undisputed ticket being issued may
have no immediate effect and be of no consequence to the exercise of the
privilege.  What may, in a broad sense, be said to be consequences of a
deemed guilty plea will differ from one driver to another depending on the
drivers record.  These cannot, in my view, be consequences contemplated by
what was said in
Richard
.  They are not matters of which any given
recipient of a ticket must be informed before his or her s. 11(d)
Charter
rights
can be waived under s. 16(1) of the
Offence Act
.

[18]

It follows that I consider the judge erred in
concluding Mr. Miller had not made an informed waiver of his s. 11(d)
Charter
rights under s. 16(1) of the
Offence Act
in choosing, as he did, not
to dispute the ticket he received for having contravened s. 7A.01 of the
Motor
Vehicle Regulations
.  By virtue of the statement on the ticket, he was
properly informed of the consequences germane to his choosing not to dispute
the ticket and so waived his right to be presumed innocent and his right to a
hearing by not disputing it within 30 days.

Disposition

[19]

I would allow the appeal, set aside the order
quashing the deemed guilty plea, and dismiss what the judge converted from an
application for judicial review to an action.

The Honourable Mr.
Justice Lowry

I agree:

The Honourable Mr. Justice Donald

I agree:

The Honourable Madam Justice Levine


