CASE LAW - R v Shymanski
Mr. Victor Shymanski was charged with disobeying a traffic control device after he drove his commercial vehicle past a regulatory sign requiring him to stop and check his brakes. He was convicted at trial. Subsequent to that he applied for Charter relief, claiming that his rights under section 7 had been violated because a ticket for a violation of the Traffic Control Device Regulation under section 125 of the Motor Vehicle Act is vague and unenforceable. This case is the resolution of the requested relief.
The Honourable Judge Frame found that disobeying the sign is a strict liability offence. This means that on prosecution, the crown does not need to prove that the accused formed the mental intent to disobey the sign and that the accused may raise the defence of having taken all reasonable care to comply to escape liability.
Because Shymanski did not stop, the case did not have to consider what, if anything, he might have had to do to check his brakes. Failing to stop in itself was enough to remove the defence of due diligence and there was no need to determine if the regulation that required checking the brakes was vague and unenforceable. It is interesting that the judge refers to signs posted at BC brake checks telling drivers what to check are advisory rather than regulatory. Further, there are no criteria as to what the minimum requirements are for a brake check set out in the signs, posted at the brake checks or otherwise provided for in the Act or Regulations.
- I wonder if I have jurisdiction
- Well looking at this and this case. *ruffle**ruffle*
- I do, I do have them ju-ris-dikshun!
- Wait a minute, looking at this - theres no real mention of what the guy is required to do, just says conform, or pay $2k or 6 months in prison
- I wonder if the section is vague *ruffle**ruffle*
- Yup the section is definitely vague
- You shall bring the doom on us all!
- Nope, let me take a look further *ruffle**ruffle*
- Oooh, the implications of me ruling left-right-and-center would be too great and will bring unforseen complications (dooooom)
- You better off to dismiss the Application for Relief (hands over an easy way out)
- Nope, can't do that, I'm still a Judge, duncha ya know, so I have to note that:
had the Applicant pulled over, scratched their head, maybe had a smoke, got back in, heck - even if they stopped for half a second - they would be in compliance.
- Noted. That dumbass ;-)
- Application dismissed
Fun read, I don't envy the Judge.
Years ago stopping at a brake check required the driver to get out of his unit, now I understand all these drivers have to do is pull into a brake check stop, then proceed without getting out of the drivers seat. I found that doing a circle check of my unit and kicking the tires was always a good thing.
Circle check + brake check
Agreed. Especially with the story about a truck wheel coming off on the highway, which miraculously did not kill, but came very close to; a walk around a large rig once in a while should not hurt. It may have even prevented the wheel flying.
This seems like a hole in the legislature, and a hole in public information regarding this.
On a race track, the lug nuts get tightened after every event.
The car gets a full "physical" every day, and a swath of other "tick points" get checked throughout a day..
All the while the safety crew and trucks are stationed all around the track if anything (god-forbid) happens.
As far as the highway goes - well the vehicles don't get pushed as hard - but thats not a good reason to not keep yourself informed about your vehicle's condition.
I'm fairly surprised that there isn't a tighter yearly inspection for all road participants in BC, commercial or otherwise.
True, the overall mechanical condition of cars here is better than "things" that peruse the dirt roads of third-world-countries, none the less mechanical contraptions tend to require maintenance, and people tend to forget (or forgo) that.
I find it interesting that ICBC sets standards for the pre-trip inspection of the air brake system that a driver must be able to perform properly before they will be granted a licence and the retired CVSE inspector didn't mention it. Of course, he was a witness for the defence, not the prosecution. I wonder what the outcome of the case might have been if the prosecution had brought that up.