Court rules that image of liability insurance card on smartphone is not a “card” for purpose of offence of not having card in vehicle
In R. v. Albert, Justice John Walsh of the New Brunswick Court of Queen’s Bench heard a summary conviction appeal by the Crown from an acquittal in provincial court. The accused had been visiting family when her insurance liability card expired, and had her insurance company email her a copy of a new temporary card; she was unable to print this because she had no access to a printer, but had a copy stored on her phone. Stopped for speeding, the accused was charged under s. 28(1.1) of the New Brunswick Motor Vehicle Act, which provides:
No person shall operate a motor vehicle that is required to be registered under this Act unless a motor vehicle liability insurance card … is being carried in the motor vehicle or by the driver of the motor vehicle.
The Provincial Court judge who presided over the trial issued an acquittal, on the basis that the ticket issued to the accused stated that she was “not carrying evidence of insurance”, and since the judge believed that the accused had been carrying “what purported to be” an insurance card then she had clearly had “evidence of insurance” and thus the offence was not proven.
In reversing the acquittal, Justice Walsh began by noting that the words used on the ticket itself did not change the underlying legislation, which did indeed require the carrying of “evidence of insurance” but specified the means of proof: a “card.” The real question, he stated, was whether the word “card” could be interpreted to include an electronic image of a card. The canons of statutory interpretation mandated interpreting terms within the scope of their ordinary meaning in the context of the relevant legislation. The ordinary meaning of “card” was clear, and it was notable that there was no provision for any other format set out in the section, whereas in other sections of the Act proof by means of a “photo-static copy” was permitted.
Justice Walsh also made the interesting observation that the relevant section of the Act provided that the “card” had to be “deliver[ed] into the peace officer’s hands, for examination in detail by the peace officer.” He noted:
if the word card has the expanded meaning argued for by the respondent, i.e. permits an electronically displayed format, could it also have been the intention of the law makers to require that a private citizen turn over into the hands of the police upon demand something as personal and private as a hand held-computer, at least without any provision addressing privacy protection? What would be the range of risks for the citizen and, for that matter, for the peace officer?
The Court recognizes, of course, that in today’s lexicon there are so-called “electronic cards”. The Court also recognizes that in our technological, virtual world, a legislative provision for only a “card” (as traditionally understood) to be used as proof of something could be viewed by many as archaic. However, nowhere in the Motor Vehicle Act is there any reference to electronic means of proof, let alone provisions defining those means or addressing the authenticity and integrity of such means (Compare e.g. Evidence Act, S.N.B., s. 47.1 regarding electronically stored documents; See also: Canada Evidence Act, ss. 31.1, 31.3; Freedom of Information and Protection of Privacy, S.C. 2000, s. 31 (1); Criminal Code, s. 841).
In the end, it was not for the court to fill in gaps in legislation, but rather for the legislature. The case was remitted back to the trial judge for imposition of sentence.
Justice Walsh’s invocation of the term “archaic” as a means of describing the legislation is well-placed, in the sense that this case is one of many demonstrating that legislative updating is needed in order to accommodate technological realities (see e.g. R. v. Ikede, reported in an earlier issue of this newsletter). Legislation, and particularly prohibitory legislation like this which is meant to be interpreted restrictively, should be drafted in as technologically neutral a manner as possible. That said, Justice Walsh (a noted and respected criminal law expert) also notes the tricky privacy interests which might come into play via a provision that required a citizen to surrender their electronic device, even temporarily, to a police officer in the highway traffic setting. It is easy to imagine the mischief that could be caused by an officer accidentally or purposefully doing even a cursory search of the device and discovering something that the officer views as evidence of an offence. It may be that there is sometimes a place for analogue means of proof in our increasingly digital world.