R v Belair

R. v. Belair

2005 ONCJ 345
Ontario Court of Justice — Adams J. | July 11, 2005

Background

On August 25, 2004, Roger Belair was driving in Cornwall when police stopped him for squealing his tires. Officer Seguin immediately noticed that both the driver and passenger windows had a 'mirror like tint' — he could barely see a shape inside the vehicle. A second officer described the windows as having 'an extremely dark tint resembling a limo tint.' Neither officer could make out the driver or passengers until the window was lowered.

Belair admitted he had 35% tint installed by a third party. He explained that if the sun was shining behind the vehicle, a person couldn't see inside. His reasons? He went to car shows, liked the privacy, and wanted UV protection. He was ticketed under s. 73(3) of the Highway Traffic Act for having windows coated with material that 'substantially obscures' the interior when viewed from outside.

At trial, the Justice of the Peace granted a judicial stay of proceedings, finding that s. 73(3) was unconstitutionally vague and violated s. 7 of the Charter. The Crown appealed to the Ontario Court of Justice.

Issues

1. Does s. 73(3) of the Highway Traffic Act engage Charter s. 7 liberty interests?
2. Is s. 73(3) void for vagueness under the principles of fundamental justice?

The Charter Challenge Fails

Justice Adams methodically dismantled the constitutional challenge. First, he found that s. 73(3) creates a strict liability offence, not absolute liability — meaning defendants can raise a due diligence defence. More importantly, he ruled that having tinted windows simply doesn't engage Charter s. 7 liberty interests.

The court relied heavily on cases like Horsefield and Buhlers v. British Columbia, which established that driving privileges aren't constitutionally protected liberty interests. As Adams J. put it: window tinting regulations are 'even further remote than the right to drive a motor vehicle' and fall squarely within provincial authority under s. 92 of the Constitution Act.

On imprisonment risk, the judge was crystal clear: Part I Provincial Offences Act proceedings carry no imprisonment provision. The maximum penalty is a $500 fine. Even if someone doesn't pay the fine, they face licence suspension and civil enforcement — not jail time. The court distinguished civil collection procedures from criminal imprisonment, noting that any detention would only result from failing to attend a court-ordered examination about ability to pay.

The Vagueness Argument Collapses

Having found no Charter s. 7 engagement, Adams J. ruled the vagueness challenge was dead on arrival — you can't claim a law violates fundamental justice principles if no protected liberty interest is at stake in the first place. But he went further, finding that even if s. 7 applied, s. 73(3) isn't impermissibly vague.

Using the Nova Scotia Pharmaceutical Society test, the court found that 'substantially obscures' gives sufficient guidance for legal debate. A reasonable person knows what it means to view into a motor vehicle. The provision gives fair notice that adding tint may be problematic, allows defendants to present contrary evidence, and provides coherent standards for judicial interpretation. The court noted that terms like 'substantial' appear throughout the Criminal Code without constitutional problems.

Key Takeaway

Constitutional challenges to Provincial Offences Act charges face extremely high hurdles when no imprisonment is possible.

Unless a POA offence carries potential jail time, Charter s. 7 liberty arguments will almost certainly fail. Defendants should focus on due diligence defences and factual disputes rather than constitutional challenges in most equipment violation cases.