Supreme Court

CR 03249


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

WILLIAM ROSS POWLESS 506, 5004-54th Street Yellowknife, NT  X1A 2R6

Appellant
- and -


HER MAJESTY THE QUEEN

Respondent




Appeal from conviction, based on constitutional challenge to seat belt legislation, being Motor Vehicles Act, R.S.N.W.T. 1988, c. M-35.  Appeal dismissed.

Heard at Yellowknife on October 18, 1996

Judgment filed:  November 19, 1996




REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE J.E. RICHARD





Appellant represented himself

Counsel for the Respondent: Brent A. Clute

Counsel for the Commissioner
  of the Northwest Territories: Beth Stewart


CR 03249


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

WILLIAM ROSS POWLESS 506, 5004-54th Street Yellowknife, NT  X1A 2R6

Appellant
- and -


HER MAJESTY THE QUEEN

Respondent


REASONS FOR JUDGMENT

1  This appeal concerns a constitutional attack on the validity of seat belt legislation in the Northwest Territories.

2  The appellant was convicted by a justice of the peace of an offence contrary to s.146(2) of the Motor Vehicles Act, R.S.N.W.T. 1988, c. M-35, i.e. failing to wear a seat belt while operating a vehicle.  He appeals his conviction.  He submits that the seat belt law is invalid because it violates the equality provisions of the Canadian Charter of Rights and Freedoms.

3  The impugned legislation provides as follows:

146. (1)  No person shall operate, on a highway, a motor vehicle in which a seat belt assembly was required under the Motor Vehicle Safety Act (Canada) when it was manufactured, assembled or imported into Canada if the seat belt assembly has been removed or has become wholly or partly inoperative.

(2)  The driver of a motor vehicle that has a seat belt assembly provided for the driver shall wear the complete seat belt assembly in a properly adjusted and securely fastened manner while the vehicle is operated on a highway.

(3)  A passenger in a motor vehicle that has a seat belt assembly provided for the seating position that the passenger occupies shall wear the complete seat belt assembly in a properly adjusted and securely fastened manner while the vehicle is operated on a highway.

(4)  Subsections (2) and (3) do not apply to a person
(a) driving a motor vehicle in reverse;
(b) who is named in a certificate signed by a medical practitioner certifying that the person is
 (i) for the period stated in the certificate, unable for medical reasons to wear a seat belt assembly, or
 (ii) because of his or her size, build or other physical characteristic, unable to wear a seat belt assembly;
(c) who is engaged in work which requires him or her to descend from and re-enter a motor vehicle at frequent intervals and the motor vehicle is not operated at a speed exceeding 40km/h while the person is engaged in such work;  or
(d) who is under the age of 15 years.

(5)  No person shall operate, on a highway, a motor vehicle in which there is
(a) a seating position available that has a seat belt assembly provided, and
(b) a passenger who is under the age of 15 years,
unless the passenger
(c) is wearing the seat belt assembly in a properly adjusted and securely fastened manner, or
(d) is named in a certificate referred to in
  (i) subparagraph (4)(b)(i) and the period stated in the certificate has not expired, or
  (ii) subparagraph (4)(b)(ii).

(6)  Notwithstanding subsection (5), no person shall operate, on a highway, a motor vehicle in which there is a passenger of the prescribed size or weight unless that passenger is properly secured in a prescribed child restraint system.


(7)  This section or any part of this section does not apply to a prescribed class of motor vehicles or a prescribed class of drivers or passengers in motor vehicles.

4  Regulations enacted pursuant to the Motor Vehicles Act further provide:

4.  The operator of a motor vehicle is exempt from subsection 146(1) of the Act where upper torso restraints, or the seat belt assemblies in the centre front seat seating position or the rear seat seating positions, have been removed or rendered wholly or partly inoperative to facilitate the lawful transportation of persons held in custody.

5. (1)  A person who is lawfully transporting a person in custody is exempt from subsections 146(2) and (5) of the Act.

(2)  A person who is being transported in custody is exempt from subsection 146(3) of the Act.

6.  A patient, ambulance attendant or any other person being transported in the patient's compartment of an ambulance is exempt from subsection 146(3) of the Act where it is impracticable for that person to wear a seat belt assembly.

7.  The operator of a taxicab is exempt from subsection 146(1) of the Act where the upper torso restraint for the driver's seating position, or the seat belt assembly in the centre front seat seating position, has been removed or rendered wholly or partly inoperative.

8.  The operator of a taxicab is exempt from subsections 146(5) and (6) of the Act where a passenger is being transported for compensation.

5  The appellant presents his appeal in person and without the assistance of legal counsel.  He contends that the exemptions to the seat belt law are so broad that the result is that the seat belt law is discriminatory.  He submits, for example, that the inconvenience, and time expended, by regular motorists in fastening and unfastening a seat belt is of no less importance or value than that of working motorists granted an exemption in paragraph 146(4)(c).  He submits that such exempted motorists, and also those granted an exemption for medical, physical or vehicular reasons, are no less likely to suffer injury or death in an accident than he, and other, non-exempt citizens.

6  Thus, he says, there is not equality before the law.  He submits that for the state to prosecute him or to convict him under the seat belt legislation is to deny his equality rights.

7  The appellant makes an interesting argument.  However, a careful analysis discloses that there has been no infringement of any of the appellant's constitutional rights.

8  The constitutional provision upon which the appellant relies is set forth in s.15(1) of the Canadian Charter of Rights and Freedoms:

s.15. (1)  Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

9  This Charter provision is not a general guarantee of equality.  Its focus is with the application of the law.  Its purpose is to ensure equality in the formulation and application of the law.  It sets our four basic rights:  (1) the right to equality before the law;  (2) the right to equality under the law;  (3) the right to equal protection of the law;  and (4) the right to equal benefit of the law.

10  The appellant here contends that the first two of these four basic equality rights are denied to him by the legislation here impugned.  It is said that a category of vehicle operators who might be described as "non-obese, healthy operators of modern motor vehicles who are neither taxi-drivers nor prisoner escorts" is subjected to an unequal burden of the law.  The appellant says he is within that category.

11  For purposes of these reasons, I accept that the seat belt legislative regime denies the appellant equality before the law, as alleged.  However, that does not end the matter.  It must be determined whether that denial is made with discrimination.  A law will not necessarily be bad merely because it makes distinctions.  Differential treatment is permitted under s.15 of the Charter provided it is "without discrimination".  See Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143, R. v. Turpin (1989), 48 C.C.C. (3d) 8 (S.C.C.).

12  In Andrews, McIntyre J offered a definition of discrimination in the context of s.15(1):

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.(emphasis added)

13  In Turpin, the Supreme Court of Canada stated that in determining whether there is discrimination on grounds related to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also "to the larger social, political and legal context".  In doing so, in order to find a discrimination, one searches for a disadvantage which exists, or for indicia such as stereotyping, vulnerability to political or social prejudice, or historical disadvantage.

14  Section 15's focus is on disadvantaged individuals or groups who are victims of discrimination and who form a "discrete and insular minority" in need of society's protection.

15  Can it be said that the group of which the appellant is a member, i.e. "non-obese healthy operators of modern motor vehicles who are neither taxi-drivers nor prisoner escorts", is a discrete and insular minority, a disadvantaged group in need of society's protection or nurture?  No.  They are regular folk.  They are not a minority of any kind.  They can hardly be said to be suffering from a disadvantage, a disadvantage which must be "displaced and righted so that they can be and feel equal to the rest of society".  R. v. Morin (1989), 52 C.C.C. (3d) 562 (Sask. C.A.).  They are not a disadvantaged group in Canadian society.

16  A fortiori, it cannot be said that this group of vehicle operators are a group stereotyped, historically disadvantaged or vulnerable to political and social prejudice.  They are simply not victims of discrimination.

17  Even if it could be said that the result of over-broad exemptions is a discrimination against the large category of drivers of which the appellant is a member, such discrimination is not based on any ground enumerated in s.15(1) of the Charter, or on any analogous ground.

18  For these reasons, I conclude that the appellant's right to equality enshrined in s.15 of the Charter is not infringed by s.146(2) of the Motor Vehicles Act.



Additional submission by appellant

19  At his trial before the justice of the place, the appellant argued that the seat belt law was unconstitutional and invalid.  In reply, the prosecutor (a by-law officer) referred to a certain decision of the Supreme Court of Canada.  On the hearing of this
appeal, the appellant correctly points out that the prosecutor misspoke himself and was quoting a decision that was not applicable to the present case.  The appellant wins that point, but it does not, and cannot, affect the outcome of his appeal.  The appellant was properly convicted by the justice of the peace of an offence under valid legislation.  No error by the prosecutor in his submissions at trial can alter the fact of that proper conviction.

20  For the foregoing reasons, the appeal is dismissed.






  J.E. Richard
   J.S.C.


Yellowknife, Northwest Territories
  November 19, 1996



Appellant represented himself

Counsel for the Respondent: Brent A. Clute

Counsel for the Commissioner
  of the Northwest Territories: Beth Stewart