Decision of the Week

This week’s decision is the first reported provincial court decision for 2019: R. v. Osnach, 2019 MBPC 1.

[1]              …  The main issue to be addressed is whether the mandatory minimum one-year driving prohibition imposed under s. 259(1) of the Criminal Code may be reduced on account of time spent under a three-month provincial administrative suspension.

The issue of whether the three month administrative suspension could be included in the one year driving prohibition was likened to credit for time in custody. Choy, P.J. did not agree.

[17]         I also do not accept the defence submission that the situation is analogous to credit for time in custody.  In that regard, the case R. v. Wust, [2000] 1 S.C.R. 455 was relied upon by defence.  I find that the leap from pre-sentence custody credit to credit for provincially mandated driving suspension cannot be made.  Depriving a person of their liberty is not the same as a person being inconvenienced by the inability to operate a motor vehicle.  Liberty is a fundamental individual right, whereas driving is a privilege which is earned. 

Decision of the Week

On January 15, 2019 the Supreme Court of Canada heard the appeal of R. v. Fedyck and rendered the following decision:

The Court — We agree with the reasons of the majority in the Court of Appeal. Accordingly the appeal is dismissed.

2019 SCC 3

The original appeal was not unanimous. R. v. Fedyck, 2018 MBCA 74 featured a significant dissent by Justice Beard. The evidence was circumstantial, and the issue on the appeal was whether the verdict was unreasonable or could not be supported by the evidence.

[24]                     The role of an appellate court, in reviewing a conviction based on circumstantial evidence, is to focus on “the question of whether the inferences drawn by the trial judge, having regard to the stan­dard of proof, were reasonably open to him” (Villaroman at para 67).

2018 MBCA 74

Decision of the Week

The first “Decision of the Week” concerns an argument that comes up from time to time:

[1]         When is a human being a person?  Shouldn’t a human being be able to escape a photo-radar ticket fine because The Highway Traffic Act C.C.S.M. c. H60 (“HTA”) does not apply to humans, but rather only to persons?

R. v. Penner, 2018 MBQB 200

Mr. Penner, as agent for his wife, challenged a photo-radar speeding ticket. Martin, J. quashed the appeal orally with written reasons to follow.

[3]         I write them not to convey any insightful legal analysis but to provide precedent for the many justices of the peace and provincial court judges who are increasingly facing these specious arguments, gussied up like legal briefs with all the accompanying bafflegab.  Those judicial officers should feel confident that they can dismiss nonsensical submissions summarily.  And those promoting these points of view should know that their arguments will get the time and attention they deserve, little to none.

The Alberta Court of Queen’s Bench issued a lengthy decision on this issue in 2012, Meads v. Meads, 2012 ABQB 571. While nowhere near as lengthy, perhaps Justice Martin’s decision can be as useful.