Now that the provincial government has started sitting again, we knew that legislation would soon be tabled. The first bill tabled, which was the Miscellaneous Statutes Amendment Act, purports to generally do housekeeping in legislation.
However, buried within this bill is a very important amendment to the BC Motor Vehicle Act. And it is one that does not remove rights from drivers, but in fact, gives them more rights when charged with a speeding offence.
The state of the law in British Columbia currently is that speeding is proven where a person exceeds the speed limit by as little as one kilometre per hour. Unless a driver is advancing a defence of necessity, it does not matter why the driver is speeding. It also does not matter if the speed sign is obstructed by an untrimmed tree, a construction project, or covered by accumulated snow.
But Bill 35 purports to change that.
It states:
Speeding offences – defence related to signs
148.2 In a prosecution of an offence for contravening a speed limit in which the maximum rate of speed is indicated on a sign on a highway, it is a defence if the defendant proves that, at the time of the alleged offence,
(a) no driver on the highway could see the front of the sign because the view of the front of the sign was obstructed, or
(b) the sign was in place, but no driver on the highway could read the sign.
What this means is that if a driver is charged with a speeding offence in circumstances where the sign is obstructed, this will amount to a defence.
However, this is an affirmative defence. The burden is on the defendant to prove that the sign was obstructed. It is not on the Crown to prove the sign was not obstructed. So in order to avail oneself of this defence, a driver would have to testify that the sign was obstructed for some reason.
There is a second aspect to this defence. The driver must also establish not just that they could not see the sign, but that no driver on the roadway could see the speed sign. So if there is something that obstructs the vision of only one driver but not all drivers, the defence would not apply.
This is a high burden. And questions remain whether by the use of the terminology “if the defendant proves” as opposed to “satisfies the trier of fact” the burden must be discharged beyond a reasonable doubt. Generally, in law, where a burden is on the defence in a prosecution, it is only on them on a balance of probabilities. That is, the defence must show that it is more likely than not that the sign was obstructed.
But generally, the reference to a burden on the defence uses terminology like “satisfied” to denote the standard of proof. In this case, the use of the term “proves” suggests that it may be the intention of the legislature to make the burden be on the defence on a beyond a reasonable doubt standard. This would likely require some photographic evidence beyond mere testimony, particularly if the police do provide evidence that the sign was visible on the roadway.
It would be nice to see some questions put to the Minister on this terminology in the legislation during the debates on this Bill, so that we can get a better sense of what the intention of the legislator is. This would assist defendants who wish to raise this defence going forward.
This defence would also only apply if a driver is charged with an offence that involves a speed sign. Speed in a municipality, for example, does not require a sign. Speeding in a school zone does. So only some drivers charged with speeding offences may avail themselves of this defence.
The sections of the Motor Vehicle Act to which this defence might apply would be Section 146(3), Section 147, and Section 148.
Ultimately, if this section of the Bill remains and is enacted into law, it would be my hope that police will simply not enforce speed limits where the signs are obstructed. Generally, the police know whether a sign is visible, as they are supposed to check it is in place before and after commencing enforcement.
My expectation would be that the police will cancel any tickets if they later discover a sign is obstructed, given the defence.
But, as with anything in law, time will tell.
