R v Miller

R. v. Miller

[1988] O.J. No. 253, 65 O.R. (2d) 746
Ontario Court of Appeal — Dubin A.C.J.O., Martin and Tarnopolsky JJ.A. | March 8, 1988

Background

Three separate defendants — Middlebrook, Miller, and Laporta — each found themselves facing licence suspensions under Ontario's Highway Traffic Act and decided to mount Charter challenges. Middlebrook's licence was suspended for failure to pay a fine, and he argued that the justice of the peace had too much discretion under section 29(2). Miller got convicted of driving while suspended and faced an automatic six-month licence suspension under section 35(3) — he claimed this was cruel and unusual punishment. Laporta raised similar issues to Miller but added a twist: he challenged section 34's presumption about notice of suspension being properly served by registered mail.

All three lost their applications for prohibition in the lower courts and appealed to the Court of Appeal, hoping the Charter would rescue them from their licence troubles.

Issues

1. Does section 29(2) of the HTA violate section 7 Charter rights by giving justices too much discretion in licence suspensions?
2. Does the mandatory six-month suspension under section 35(3) constitute cruel and unusual punishment under section 12?
3. Does section 34's presumption about service of notice violate the presumption of innocence under section 11(d)?

The Charter Challenge Failures

The Court of Appeal systematically demolished each Charter argument. On Middlebrook's section 7 challenge, the court found that the discretion given to justices of the peace under section 29(2) was perfectly constitutional — especially since defendants can appeal the decision to Provincial Court. The legislation doesn't need to spell out detailed criteria for every discretionary decision.

Miller's cruel and unusual punishment argument fared even worse. The court ruled that licence suspension isn't "punishment" within the meaning of section 12 of the Charter — it's regulatory. Even if it were punishment, a six-month suspension is neither cruel nor unusual for someone caught driving while suspended. The court also rejected Miller's section 7 fundamental justice claim.

Laporta's reverse onus challenge to section 34 also failed. The court determined that the presumption about registered mail service doesn't create a reverse onus on an essential element of the offence. Since driving while suspended is a regulatory offence where due diligence is available as a defence, the notice provision simply relates to that defence rather than creating an unconstitutional burden.

Key Takeaway

Charter challenges to licence suspension provisions face an uphill battle because courts view driving as a regulated privilege, not a fundamental right.

Self-represented defendants should focus on procedural defences and due diligence arguments rather than hoping Charter violations will save them from licence suspension consequences.