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  • Lewis Waring

Revisiting the Constitutionality of s 229 of The Highway Traffic Act - Anonymous

Statutory presumptions and reverse onuses are oft challenged issues in the realm of the intersection of criminal law and the Charter. These issues have seen considerable attention in recent Supreme Court jurisprudence, from the SCC’s 1992 decision in R v Downey through to their recent 2019 decision in R v Morrison. Very recently, the Manitoba Court of Appeal [“MBCA”] was asked to contemplate the constitutionality of s 229 of The Highway Traffic Act in R v Bernier.

Mr. Bernier, the owner of a vehicle, was charged in relation to two photo radar speeding tickets. He challenged the constitutionality of s 229 of the HTA as being in contravention of s 11(d) of the Charter.

Section 229 of the HTA

Section 229(2) provides that the owner (and not the driver) may be charged with a driver’s offence. Moreover, s 229(2.1) provides that a judge may convict the owner of a vehicle unless the owner proves that at the time of the offence, the vehicle was in someone else’s possession without their express or implied consent. In effect, s 229 of the HTA works to hold vehicle owners responsible where it is unclear who the driver is, especially in circumstances such as photo radar, where it isn’t clear who is driving.

Section 11(d) of the Charter

Section 11(d) of the Charter exists to protect the innocent. It presumes that an individual is innocent until proven guilty beyond a reasonable doubt. It further guarantees that they are tried by an independent and impartial tribunal.

The Decision

Before the MBCA, the Appellant, Mr. Bernier, argued that s 229 of the HTA created a reverse onus since the owner bears the onus to show that the offence was not caused by any fault on their part. By doing this, the Appellant contended it offender s 11(d) since the Crown did not need to prove beyond a reasonable doubt that the owner was in fact the one committing the crime or it was through a fault of the owner that the regulatory driving offence was committed. Consequently, in operation, the Appellant argued that s 229 found the owner of a vehicle automatically guilty without proof that they were the driver. Thereby jeopardizing the presumption of innocence.

The MBCA got around the argument made by the Appellant by holding that there isn’t any presumption created under s 229 that the owner is the driver, and there is no requirement that there must be proof of driving. In effect, s 229 is written in such a manner that it is clear that it applies to owners and not drivers, and no presumption is legislated that the owner is in fact the driver. Consequently, the MBCA found that there was no violation of the presumption of innocence under s 11(d) of the Charter.

Binding Jurisprudence

This case was a difficult one for the Appellant given the binding jurisprudence from the MBCA in R v Gray, a decision from 1988. In order to be successful at the appeal, Mr. Bernier had to distinguish his case in order to be successful.

In Gray, the accused was charged with a number of regulatory driving offences in 1986, in which the identity of the driver was unknown. At the time, s 229 of the HTA was also operative and it was argued that it violated the Appellant’s ss 7, 11(c) and 11(d) Charter rights. Fascinatingly, in Gray, it was successfully argued that s 229 violated s 7 of the Charter since there was a chance that the offender could be placed in jail if they did not pay their fine pursuant to ss 6(2)-(3) of The Summary Convictions Act. However, this provision no longer exists due to the repeal of the offending provisions and The Summary Convictions Act in its entirety. As an aside, it has since been replaced by The Provincial Offences Act [“POA”] which does not contain an analogous “debtors prison” provision.

Unfortunately, the Appellant in Gray was unsuccessful in arguing that either ss 11(c) or 11(d) were violated, which was the legally binding hurdle for the Appellant in Bernier to clear. Hubband JA, writing for the majority in Gray, held that pursuant to s 229 “the accused is under no onus to establish that he was not the owner of the vehicle, or that the vehicle was not being driven in a manner contravening The Highway Traffic Act.” Consequently, it is unsurprising that the Court in Bernier accepted the binding 1988 decision since an insufficient distinction could be drawn to differentiate the two cases. In effect, the substance of s 229 has changed little between Gray in 1988 and Bernier in 2021. As a result, the likelihood of a s 11(d) challenge being successful in Bernier was unlikely without something more.

Future Avenues

Despite the Appellant’s lack of success in Bernier, I am of the opinion that this is a valid legal issue to litigate. However, I believe that there are other avenues which may see some success. In my view, s 7 may be a good avenue to revisit in this situation. As a quick aside, the s 7 test is that you must show that the impugned provision offends either the right to life, liberty, or security of the person. Thereafter, it must also contravene one of the principles of fundamental justice.

One potential way to litigate the s 7 issue could be to look at the right to liberty, and argue that s 229 intrudes on the owner’s ability to borrow their car (their property) as they wish and thereby restricts the private property choices of individuals since it may make owners much more cautious about borrowing their cars to others, and the independence and choice permitted therein. If this is plausible, it could then be argued that the fundamental principle of justice violated in the second step of the s 7 test is that of overbreadth. In effect, the overall purpose of the HTA and other driving related offences is to hold drivers who are committing regulatory offences responsible for their actions. However, the legislative scheme under s 229 ends up scooping up some individuals who didn’t contravene the HTA and are merely owners of vehicles in which offending conduct arose (i.e. they borrowed their car to a friend who sped through a red light camera). Consequently, rather than capturing offending behaviour such as dangerous and careless driving, much of which encompasses the reasons for which the HTA was enacted, it ensnares individuals who, by no fault of their own, happen to own a vehicle in which offending conduct arose.

Moreover, there’s a potential s 12 argument in relation to s 229 as well. Section 12 protects individuals from cruel and unusual punishment and is a two step test: (1) the punishment or treatment must be imposed upon a person by a state actor; and, (2) the punishment or treatment must be cruel and unusual.

Without going into too much detail on the potential s 12 argument, the HTA scheme and s 229 constitute treatment and/or punishment imposed by a state actor. With regard to the second step of the s 12 test, we would look to the Morrisey factors to illustrate the cruelty and unusualness of the punishment. However, a cursory overview of a potential argument (without delving into the Morrisey factors) is that The Provincial Offences Act, an act which oversees a number of provincial regulatory offences including driving, contains a number of provisions which could have significant impacts upon an individual should they be unable to pay their driving-related fines. For example, s 89(1) of the POA permits the government to refuse to renew an offender’s licence, registration, registration card, or other documents required to drive, where they are unable to pay. Moreover, there are numerous other “scary” collections actions which the government may pursue should an offender be unable to pay their driving-related fine under ss 90-95 of the POA. By contrast, the fine option program is not available for driving suspensions, so this creates further interesting questions as to the unconstitutionality of s 229 since they may make it extremely difficult for people of limited means to pay their HTA fines (especially where their licence is suspended and this impacts their ability to access work/drive to work). Consequently, these collections actions and remedies which may be taken by the government (should the offender be unable to pay) may factor into the analysis of the Morrissey factors in the overall s 12 analysis; even where time to pay is allowed.


While it is not a sure-fire guarantee that either the ss 7 or s 12 Charter arguments would succeed, in my view, they are still valid legal questions and we may see re-litigation of this issue on different Charter grounds at a later point in time. The nature of Canadian jurisprudence is such that it is dynamic and constantly evolving, so as norms shift, especially in relation to the Charter, more issues such as these may present themselves, and we may eventually see a successful Charter argument with respect to s 229 of the HTA.


[2] The Highway Traffic Act, CCSM c H60.

[3] The Summary Convictions Act, CCSM c S230.

[4] The Provincial Offences Act, CCSM c P160.

[5] R v Bernier, 2021 MBCA 21.

[6] R v Downey, [1992] 2 SCR 10.

[7] R v Gray, 1 WWR 66, 44 CRR 6.

[8] R v Morrison, 2019 SCC 15.

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