Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Bernier, 2021 MBCA 21, March 11, 2021, the accused was convicted of the offence of speeding, as a result of being the owner of the vehicle, pursuant to section 229 of The Highway Traffic Act, CCSM c H60.  Section 229(2.1) states as follows:

If the judge or justice before whom the owner is tried is satisfied that the vehicle was involved in the contravention, the owner is guilty of the offence, unless the owner proves to the satisfaction of the judge or justice that at the time of the contravention the vehicle was, without the owner’s express or implied consent, in someone else’s possession.

The accused had argued that “section 229 was unconstitutional because it created a presumption that he was the driver, which he must rebut.  He argued that this was an impermissible reverse onus which violated section 11(d) of the Canadian Charter of Rights and Freedoms”.

This argument was rejected by the trial judge and the summary conviction appeal court.  The accused was granted leave to appeal to the Manitoba Court of Appeal.

The appeal was dismissed. The Court of Appeal concluded that “section 229 does not violate section 11(d) of the Charter because it does not create a possibility that an accused will be convicted, despite a reasonable doubt as to ownership and the traffic infraction.  As well, there is no presumption that the owner is the driver, and section 11(d) does not dictate that there must be proof of driving” (at paragraph 18).