Thursday July 24, 2014





Brake-check conviction faces charter challenge

Safety inspections poorly defined on books, lawyer argues
Murray Mitchell

Kamloops eastbound brake check and scale on Trans-Canada Highway.

A commercial trucker fined for bypassing the Inks Lake brake check is challenging his conviction under the Charter of Rights and Freedoms.

Defence lawyer John Drayton argued in provincial court on Friday that motor vehicle regulations are unclear in their definition of what constitutes a brake check.

"The argument I will be making is that this is too vague to enforce," Drayton told Judge Stella Frame. "There's a difference between checking and inspecting, but that's a point that needs to be argued."

Frame convicted Victor Shymansky, an Ontario truck driver, of failing to obey a traffic control device, an offence subject to a $109 fine.

On May 25, 2011, a commercial vehicle safety enforcement officer parked on the hill below the Hwy. 5 brake check observed Shymansky's semi-trailer drive past without stopping.

Dennis Pryhitko, the now-retired officer who ticketed Shymansky, testified on Friday that commercial drivers don't necessarily have to get out of their vehicles to do a brake check, but they must come to a full stop. Only then can they listen for air leaks indicating a brake problem, he said.

Shymansky's conviction cleared the way for his challenge under the charter.

Drayton contended that a possibility exists that his client could face imprisonment for the offence and therefore he can challenge the conviction under Section 7 of the charter. Section 7 assures that any such denial of individual liberty must not violate fundamental justice.

Crown prosecutor Tim Livingston countered that the charter cannot be invoked in the case. He cited the Offence Act, which states individuals cannot be imprisoned for failing to pay a fine.

"Thus, the liberty component does not come into play," Livingston said. "There's no possibility that his liberty interests are at stake here."

He cited case law to show that driving is not a protected right.

"Mr. Shymensky's Section 7 rights are not triggered in this case."

In traffic convictions, sentencing is a blank slate, Drayton said. In other words, courts can vary a fine or impose imprisonment if they feel it is warranted.

Drayton said the argument turns on a question of whether Shymansky's offence is an absolute liability offence or a strict liability offence. In an offence of absolute liability, a mistake of fact is not a defence, so his client could face the possibility of enforcement, he said.

Outside court, Drayton said the charter challenge harkens back to a similar case more than 20 years ago in which a trucker's conviction for failing to stop at a brake check was successfully overturned in Kamloops. The law was changed as a result of that decision.

"But the argument continues to exist as to whether those changes satisfy the charter," he said.

If this challenge succeeds, the onus would be on government to revisit motor vehicle regulations and clarify the rules, he added.


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