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The Highway Traffic Amendment Act

S.M. 1989-90, c. 4

Bill 3, 2nd Session, 34th Legislature

The Highway Traffic Amendment Act

(Assented to June 29, 1989)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. H60 amended

1           The Highway Traffic Act is amended by this Act.

Subsection 31(13) rep. and sub.

2           Subsection 31(13) is repealed and the following is substituted:

Reinstatement of impaired persons

31(13)      The registrar may require any person whose licence or permit to drive has been suspended or who has been disqualified from driving pursuant to section 263.1 or 263.2 or who has been convicted of an offence pursuant to 253, 254 or 255 of Criminal Code to complete an impaired drivers' course offered by the Alcoholism Foundation of Manitoba or a recognized agency or person engaged in the diagnosis or treatment of persons suffering from alcoholism or drug addiction.

Section 76 rep. and sub.

3           Section 76 is repealed and the following is substituted:

Peace officer may direct traffic

76          Where a peace officer considers it reasonably necessary

(a) to ensure the orderly movement of traffic,

(b) to prevent injury or damage to persons or property, or

(c) to permit proper action in any emergency,

the officer may direct pedestrians and vehicles or erect temporary traffic control devices and every person shall obey the officer's directions and the control devices.

Peace officer may stop vehicles

76.1        A peace officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop, and the driver of the motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as such, shall immediately come to a safe stop and remain stopped until permitted by the peace officer to depart.

Subsection 98(5) amended

4           Subsection 98(5) is amended by striking out "subsection 76(1)" and substituting "section 76".

Section 236 amended

5           Section 236 is amended by striking out "subsection 76(2)" wherever it occurs and substituting "section 76".

Section 239 amended

6           Section 239 is amended by adding "other than an order of a peace officer under section 76.1, any order of a" after "peace officer," in clause (c).

Section 239.1 added

7           The following is added after section 239:

Penalty for not stopping

239.1       Any person who contravenes or fails to comply with section 76.1 is guilty of an offence and is liable on summary conviction to a fine of not more than $1,000. and in default of payment to imprisonment for a term not exceeding six months or to imprisonment for a term not exceeding six months without the option of a fine.

Section 242.1 added

8           The following is added after section 242:

Impoundment of vehicle by peace officer

242.1(1)    A peace officer who has reason to believe that a person has operated a motor vehicle as defined in this Act contrary to section 225(1) of this Act or to section 259 of Criminal Code shall seize, impound and take into the custody of the law the motor vehicle with which or in respect of which the offence was alleged to have been committed.

Duties of peace officer

242.1(2)    Where a motor vehicle has been seized, impounded and taken, the peace officer shall

(a) complete an acknowledgement of seizure and impoundment setting out

(i) the name and address of the person charged,

(ii) the year, make and serial number of the motor vehicle,

(iii) the date and time of the seizure, and

(iv) the place where the vehicle is to be impounded;

(b) give the person charged a copy of the acknowledgement;

(c) give the owner a copy of the acknowledgement, if the owner is present at the time of the seizure, or without delay send a copy to the owner by registered or certified mail to the owner's last known address as recorded in the registrar's records of motor vehicle registrations;

(d) cause a copy of the acknowledgement to be given to the garage keeper who stores the motor vehicle; and

(e) retain a copy of the acknowledgement.

Storage of impounded vehicle

242.1(3)    A motor vehicle seized, impounded and taken under this section shall be stored where the peace officer directs, and all costs and charges prescribed by regulation for the transportation, towing, care, storage, disposition and other related charges respecting the motor vehicle, all costs and charges on account of administration prescribed by regulation to be paid to the Minister of Finance upon the release of an impounded motor vehicle and for searches, registrations and other charges under The Personal Property Security Act reasonably necessary for a performance by the garage keeper of his or her obligations are a lien on the motor vehicle and the lien may be enforced in the manner provided in The Garage Keepers Act.

Revocation of order

242.1(4)    An owner of a motor vehicle seized, impounded or taken under this section, may, at any time before the expiry of 30 days, apply to a justice designated by The Chief Judge of the Provincial Court of Manitoba for the hearing of such applications for the revocation of the order of impoundment by

(a) making application in the form and in the manner required by the minister; and

(b) paying the prescribed fee.

Issue to be determined

242.1(5)    Where, after considering an application under subsection (4) by an owner other than an owner who is charged in connection with the seizure and impoundment of the motor vehicle, the justice is satisfied that the person charged was in possession of the vehicle without the knowledge and consent of the owner or the owner could not reasonably have been expected to know that the licence or permit of the person to whom the vehicle was delivered was suspended or cancelled or that the person was disqualified or prohibited from driving, the justice shall

(a) revoke the order of impoundment;

(b) subject to the lien described in subsection (3), direct that a peace officer order the garage keeper to return the motor vehicle to the owner or to a person authorized by the owner; and

(c) direct that the fee paid by the applicant be refunded.

Issue to be determined

242.1(6)    Where, after considering an application under subsection (4) by an owner who is charged in connection with the seizure and impoundment of the motor vehicle, the justice is satisfied that the owner, before he or she drove the motor vehicle, had no reason to believe that his or her licence or permit was suspended, that he or she was disqualified from holding a driver's licence or was prohibited from driving a motor vehicle and that the owner had at the time of the seizure and impoundment complied with subsection 27(5), the justice shall

(a) revoke the order of impoundment;

(b) subject to the lien described in subsection (3), direct that a peace officer order the garage keeper to return the motor vehicle to the owner or to a person authorized by the owner; and

(c) direct that the fee paid by the applicant be refunded.

Return of vehicle after 30 days

242.1(7)    Unless otherwise required by this Act, where 30 days has elapsed from the date the motor vehicle was seized, impounded or taken, the peace officer, upon written request of the owner or a person authorized by the owner, shall, subject to the lien described in subsection (3), direct that the motor vehicle be returned to the owner or a person authorized by the owner.

Removal of vehicle prohibited

242.1(8)    Subject to subsections (5), (6) and (7), no person shall remove or release or permit the removal or release of a motor vehicle impounded under this section from the place of impoundment.

Effect of lien

242.1(9)    A motor vehicle that is subject to a lien shall be retained in the custody of the law so long as the lien remains unpaid or the vehicle is dealt with under The Garage Keepers Act.

Notice by garage keeper

242.1(10)   The garage keeper shall notify the peace officer of the sale of each motor vehicle sold under The Garage Keepers Act.

Personal property in motor vehicle

242.1(11)   Subject to section 242, personal property present in a motor vehicle which has been seized or impounded, other than personal property attached to or used in connection with the operation of the motor vehicle, shall be returned to the owner upon request.

Owner's right against driver

242.1(12)   The owner of a motor vehicle seized, impounded or taken under this section, other than an owner who is charged in connection with the seizure and impoundment of the vehicle, may recover any lien costs paid from the person who operated the motor vehicle.

Sections 263.l and 263.2 added

9           The following is added after section 263:

Notice and order of suspension

263.1(1)    Where

(a) a peace officer

(i) by reason of an analysis of the breath or blood of a person, has reason to believe that the person has consumed alcohol in such a quantity that the concentration thereof in his or her blood exceeds 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(b) of Criminal Code, or

(ii) has reason to believe that a person while having alcohol in his or her body failed or refused to comply with a demand made on that person to supply a sample of his or her breath or blood under section 254 of Criminal Code; and

(b) the occurrence is in relation to the operation of or having care and control of a motor vehicle as defined in this Act;

the peace officer on behalf of the registrar shall

(c) where the person holds a valid licence or permit issued under this Act to operate the motor vehicle,

(i) take possession of the person's licence or permit, and shall, subject to subsection(2), issue a temporary permit which shall expire seven days from the date of issue or on the expiry date of the licence or permit seized by the officer, whichever is the earlier, and

(ii) suspend the person's licence or permit by serving on the person a notice of intention to suspend and order of suspension effective seven days from the date of the notice and order; and

(d) where the person holds a valid temporary permit issued under subclause (c)(i),

(i) take possession of the person's temporary permit, and

(ii) immediately suspend the person's permit by serving on the person an order of suspension;

(e) where the person holds a valid licence or permit to operate a motor vehicle issued other than under this Act, disqualify that person from applying for or holding a licence or permit in Manitoba or from operating a motor vehicle in Manitoba by serving a notice of intention to disqualify and order of disqualification on the person effective seven days from the date of issue of the notice and order; and

(f) where the person does not hold a valid licence or permit to operate a motor vehicle, immediately disqualify the person from applying for or holding a licence in Manitoba or from operating a motor vehicle in Manitoba by serving a notice of intention to disqualify and an order of disqualification on the person.

Effect of suspension under s.265

263.1(2)    Where a licence or permit of a person referred to in subsection (1) is suspended under section 265, a temporary permit issued under subsection (1) commences to be valid upon expiry of the period of that suspension.

Documents to registrar

263.1(3)    A peace officer who serves a notice and order under subsection (1) shall without delay forward to the registrar

(a) the person's driver's licence or permit, if one has been surrendered;

(b) a copy of the temporary licence or permit, if one has been issued;

(c) a copy of the completed notice and order;

(d) a report sworn or solemnly affirmed by the peace officer; and

(e) a copy of any certificate of analysis under section 258 of Criminal Code with respect to the person described in subsection (1).

Use of required forms

263.1(4)    The notice of intention and order of suspension or disqualification, temporary licence and report of the peace officer referred to in this section shall be in the form, contain the information and be completed in the manner required by the registrar.

Licence or permit not surrendered

263.1(5)    Where a person who holds a valid licence or permit does not surrender it, the licence or permit is nevertheless suspended.

Effective date and period of suspension

263.1(6)    Unless otherwise ordered in a review under section 263.2, a licence or permit shall be suspended and a person without a licence shall be disqualified from applying for or holding a licence or permit or operating a motor vehicle for three months from the effective date of the suspension or disqualification.

Suspension of out-of-province driver

263.1(7)    Unless otherwise ordered in a review under section 263.2, a person holding a licence or permit issued to a person other than under this Act shall be disqualified from applying for or holding a licence or permit or from operating a motor vehicle in Manitoba for three months from the effective date of the disqualification.

Review of suspension and disqualification

263.2(1)    A person may apply for review of an order of suspension or disqualification under section 263.1 by

(a) filing an application for review with the registrar;

(b) paying the prescribed fee, and where an oral hearing is requested, the prescribed oral hearing fee;

(c) obtaining a date and time for a hearing; and

(d) surrendering his or her licence or permit if it has not previously been surrendered, unless he or she certifies to the registrar that the licence or permit has been lost or destroyed.

Application forms

263.2(2)    The application for review shall be in the form, contain the information and be completed in the manner required by the registrar.

Written evidence

263.2(3)    The application for review may be accompanied by sworn statements or other evidence which the person wishes the registrar to consider.

Application not to stay suspension

263.2(4)    An application does not stay the suspension of or disqualification from holding a licence or permit.

Hearing not required

263.2(5)    The registrar is not required to hold an oral hearing unless the appellant requests an oral hearing at the time of filing the application and pays the prescribed fees.

Considerations of registrar

263.2(6)    The registrar shall consider

(a) any relevant sworn or solemnly affirmed statements or other information accompanying the application;

(b) the report of the peace officer;

(c) a copy of any certificate of analysis under section 258 of Criminal Code without proof of the identity and official character of the person appearing to have signed the certificate or that the copy is a true copy; and

(d) where an oral hearing is held, the evidence and information given or representations made at the hearing.

Sole issue before registrar

263.2(7)    The sole issue before the registrar is whether it is established to his or her satisfaction that

(a) the person operated or had care or control of a motor vehicle as defined in this Act having consumed alcohol in such a quantity that the concentration thereof in his or her blood exceeds 80 milligrams of alcohol in 100 millilitres of his or her blood at the time a charge was laid under section 253 of Criminal Code; or

(b) the person failed or refused to comply with a demand made on him or her under section 254 of Criminal Code in respect of the operation or care and control of a motor vehicle as defined in this Act.

Time of hearing

263.2(8)    The registrar shall

(a) where no oral hearing is requested, consider the application within 10 days of compliance with clauses 263.2(1)(a), (b) and (d); and

(b) where an oral hearing is requested, hold the hearing within 20 days of compliance with subsection 263.2(1),

but failure of the registrar to consider the application or hold the hearing within the required time does not affect the jurisdiction of the registrar to consider or hear the application or to make a decision with respect to it.

Where evidence supports order

263.2(9)    Where the evidence before the registrar supports an affirmative determination on the issue referred to in subsection (7), the registrar shall sustain the order of suspension or disqualification.

Where evidence does not support order

263.2(10)   Where the evidence supports a negative determination on the issue referred to in subsection (7), the registrar shall

(a) revoke the order of suspension or disqualification,

(b) return any licence or permit surrendered to the registrar,

(c) direct that the fees paid for the application for review be refunded.

Failure of appellant to appear

263.2(11)   Where the appellant who requests an oral hearing fails to appear without prior notice to the registrar, the right to a hearing is deemed to have been waived by the appellant.

Copy of decision

263.2(12)   The decision of the registrar shall be in writing and a copy of it shall be sent within 7 days of the date the application was considered or the hearing was held by the registrar by registered or certified mail to the person at his or her last known address as shown in the records maintained by the registrar and to the address shown in the application, if that address is different from the address of record.

Section 273 rep. and sub.

10          Section 273 is repealed and the following is substituted:

Registrar's power to suspend etc.

273(1)      The registrar may in accordance with this section, for contravention of the provisions of this Act or the regulations or for any reasonable cause that the registrar considers sufficient, cancel or suspend a person's licence or the registration of a vehicle registered in the name of a person or refuse to issue a licence to, or to register a vehicle in the name of, a person for such period as the registrar may consider sufficient.

Form of notice

273(2)      Prior to exercising his authority under subsection (1), the registrar shall serve a notice in writing on the person setting out that

(a) the registrar, without further notice to the person, intends to exercise his powers under subsection (1) with respect to the person's licence or motor vehicle registration, or both, for reasons specified in the notice, unless the person shows cause why the registrar should not exercise those powers,

(b) the person has a right to make a written submission in response to the notice within such time as the registrar deems reasonable and specifies in the notice; and

(c) the person has a right to be heard in response to the notice at a location determined by the registrar if the person contacts the registrar, within such time as the registrar deems reasonable and specifies in the notice, to arrange a date and time for a hearing and appears at the hearing to make representations.

Service of notice

273(3)      A notice referred to in subsection (2) shall be personally served or sent to the person by registered or certified mail addressed to the person at his or her last known address as shown in the records maintained by the registrar and when sent to the person in that manner there shall be a rebuttable presumption that the notice was received by that person.

Subsection 279(1) amended

11          Subsection 279(1) is amended by adding "or a suspension referred to in subsection (1.1) or (1.2)" after "non payment of a fine".

Subsection 279(1.1) added

12          The following is added after subsection 279(1):

Restriction where 5 year suspension

279(1.1)    A person who, while his or her licence or right to have a licence is suspended in Manitoba for a period of five years under section 167 or 264 of The Highway Traffic Act, is convicted of a subsequent offence for which his or her licence or right to have a licence is suspended for a period of five years under section 167 or 264 of The Highway Traffic Act, is not entitled to apply to the appeal board until the period of suspension for the subsequent offence has elapsed.

Subsection 279(1.2) added

13          The following is added after subsection 279(1.1):

Restriction where administrative suspension

279(1.2)    A person whose licence or permit is suspended or who is disqualified from applying for or holding a licence or permit or from operating a vehicle in Manitoba under section 263.1 or 263.2 is not entitled to apply to the appeal board until the period of suspension or disqualification has elapsed.

Subsection 319(1) amended

14          Subsection 319(1) is amended by adding the following after clause (ttt):

(uuu) prescribing for the purposes of subsection 242.1(3) the costs and charges payable on account of the towing, transportation, care, storage, disposition and other related matters and the costs and charges on account of administration to be paid to the Minister of Finance upon the release of an impounded motor vehicle or the manner in which those costs or charges are to be determined and the persons who are authorized to receive the costs and charges on behalf of the Minister of Finance;

(vvv) prescribing fees for the purposes of subsection 242.1(4) and 63.2(1)(b).

Subsection 322(1) amended

15          Subsection 322(1) is amended by striking out "or" at the end of clause (c) and the period at the end of clause (d) and by adding "or" at the end of clause (d) and by adding the following after clause (d):

(e) have been suspended or disqualified from driving under section 263.1 or 263.2.

Coming into force on proclamation

16(1)       Subject to subsection (2), this Act comes into force on a date fixed by proclamation.

Coming into force on royal assent

16(2)       Sections 1, 3, 4, 5, 6, 7 and 12 come into force on the day this Act receives the royal assent.