R v Richard

R. v. Richard

[1996] 3 S.C.R. 525
Supreme Court of Canada — La Forest J. | October 31, 1996

Background

Three drivers in New Brunswick — Rejean Richard, Leo Doiron, and Denis Lavoie — were each stopped for speeding under the Motor Vehicle Act. Each received a ticket with clear instructions: pay the fine or appear in court at the specified time and place. All three did neither. Under section 16 of New Brunswick's Provincial Offences Procedure Act, they were convicted without a trial and ordered to pay fines.

The drivers challenged these convictions, arguing that being convicted without a trial violated their Charter right to be presumed innocent and to have a fair hearing before an independent tribunal under section 11(d). The Court of Queen's Bench agreed there was a Charter violation but said it was justified. The New Brunswick Court of Appeal went further, striking down the entire legislative scheme as unconstitutional because it interfered with judicial independence.

Issues

1. Does convicting someone without a trial based solely on their failure to pay or appear violate section 11(d) of the Charter?
2. Can a legislature constitutionally infer waiver of Charter rights from an accused person's failure to act?

The Waiver Analysis

The Supreme Court ruled that section 16 does not violate the Charter because the regulatory scheme creates a situation where accused persons have validly waived their section 11(d) rights through their conduct. Justice La Forest emphasized this only works in the regulatory context where imprisonment is impossible — these were fine-only offences.

The Court established that legislatures can infer waiver from an accused's failure to act, provided two critical safeguards exist: (1) the accused must be fully aware of the consequences of failing to act, and (2) the procedural scheme must have sufficient safeguards to ensure the failure wasn't due to circumstances beyond their control.

New Brunswick's system met both tests. The tickets clearly stated that failing to pay or appear "may result in conviction." The Act required personal service of tickets, judges had to verify proper service before convicting, and accused persons could apply within 45 days to set aside convictions if their failure to appear "was not their fault."

Key Takeaway

Ignoring a provincial offence ticket completely can constitute a valid waiver of your right to a trial — but only if the system has proper safeguards.

This case shows that provincial offence systems can constitutionally operate on an "opt-in" basis for trials, where you must actively choose to defend yourself or you're deemed to have waived that right. However, the system must clearly warn you of the consequences and provide escape hatches for genuine mistakes or circumstances beyond your control.