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The Highway Traffic Amendment Act (2)

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If you need an official copy, contact Statutory Publications.

S.M. 1998, c. 40

THE HIGHWAY TRAFFIC AMENDMENT ACT (2)


 

(Assented to June 29, 1998)

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

C.C.S.M. c. H60 amended

1         The Highway Traffic Act is amended by this Act.

2         The following is added after section 242.1:

SEIZURE OF VEHICLES IN PROSTITUTION RELATED OFFENCES

Designated person

242.2(1)  In this section, "designated person" means a person designated by the Minister of Justice for the purpose of this section.

Appointment or designation of garage keeper

242.2(2)  The Minister of Justice may appoint a person or designate a department or branch of the government as a garage keeper for the purpose of this section.

Seizure of vehicle used in committing certain offences

242.2(3)  A peace officer who on reasonable grounds believes that a motor vehicle is being operated in the course of committing an offence under any of the following provisions of the Criminal Code (Canada) shall seize the vehicle and take it into the custody of the law:

(a) section 211 (transporting person to bawdy house);

(b) section 212 (procuring);

(c) section 213 (offence in relation to prostitution).

Release of Seized Vehicles and Personal Property in Seized Vehicles

Release of personal property in seized vehicle

242.2(4)  Any personal property present in a motor vehicle that is seized under this section, other than personal property attached to or used in connection with the operation of the vehicle, shall be released to the owner of the personal property upon request, unless it is required as evidence in a prosecution or in connection with an investigation of an offence under this Act, in which case subsections 242(2) and (3) (peace officer may apply for order to extend detention) apply, with necessary modifications.

No release or removal of vehicle except as authorized

242.2(5)  No person shall remove or release, or permit the removal or release of, a seized motor vehicle from the place of storage except as authorized under this section.

Temporary release of seized vehicle by peace officer

242.2(6)  Despite subsection (3), a peace officer who seizes a motor vehicle under this section but is satisfied that taking it into the custody of the law would jeopardize the safety of, or cause undue hardship to, any person, may delay taking custody of the vehicle and may permit it to be driven to a location specified by the officer, where any peace officer may take custody of it.

Seizure of released vehicle at other location

242.2(7)  Where under subsection (6) a peace officer permits a seized motor vehicle to be driven to a location and the vehicle is not taken into custody at that location, a peace officer may apply to a justice for an order to take the vehicle into the custody of the law, and if the justice is satisfied that the officer had reason to seize the vehicle, the justice may grant an order authorizing a peace officer to take the vehicle into the custody of the law in accordance with this section, with necessary modifications, and for that purpose to enter a building or place where the vehicle is stored or kept.

Release of vehicle by peace officer of stolen vehicles or under alternative measures

242.2(8)  Where a motor vehicle is seized under this section, a peace officer may, with the approval of the designated person, release the vehicle to the owner, or to a person authorized by the owner, if the officer is satisfied that

(a) the vehicle is stolen; or

(b) every person

(i) who was in the vehicle at the time it was seized, and

(ii) who the peace officer referred to in subsection (3) had reasonable grounds to believe had committed an offence referred to in clauses (3)(a) to (c),

is eligible for, and consents to be dealt with by way of, a program of alternative measures authorized under clause 717(1)(a) of the Criminal Code (Canada).

Indemnification in case of stolen vehicle

242.2(9)  Subsection (30) (indemnification) applies, with necessary modifications, in respect of a motor vehicle released under clause (8)(a).

Application to court by certain owners of vehicles

242.2(10) The owner of a motor vehicle seized under this section may, if he or she is not charged with an offence referred to in clauses (3)(a) to (c) in respect of which the vehicle was seized, apply to a justice designated by The Chief Judge of the Provincial Court of Manitoba to hear applications for the release of vehicles under this section by

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

(b) paying the prescribed fee.

Justice may consider any relevant evidence

242.2(11)  In a hearing conducted pursuant to subsection (10), the justice may consider any evidence or information he or she considers relevant, which may include

(a) a report of a peace officer respecting the seizure of the motor vehicle; and

(b) a report of the designated person respecting any record of a previous seizure under this section of a vehicle that was at the time registered in the name of, or owned by, the applicant.

Determination by justice

242.2(12) If the justice is satisfied that

(a) at the time the motor vehicle was seized, the driver was in possession of it without the knowledge and consent of its owner; or

(b) the owner could not reasonably have known that the vehicle was being operated in the course of committing an offence referred to in clauses (3)(a) to (c);

the justice shall order

(c) that the vehicle be released to the owner, or to a person authorized by the owner, subject to payment of the lien under subsection (23), and that the designated person so advise the garage keeper; and

(d) that the application fee paid under clause (10)(b) be refunded to the owner.

Owner may obtain vehicle by depositing security

242.2(13) The owner of a motor vehicle seized under this section may at any time apply to the designated person for the release of the vehicle on deposit of a sum of money, or security for money approved by the Minister of Finance, equal to the value of the vehicle, as determined by the designated person in accordance with the regulations.

Certificate of Minister of Finance confirming deposit

242.2(14) The owner shall deposit the amount determined under subsection (13), or security for it, with the Minister of Finance, who shall issue to the owner a certificate that confirms the amount of the deposit.

Designated person to authorize release of vehicle

242.2(15) On receiving a certificate issued under subsection (14), the designated person shall authorize the release of the vehicle to the owner, or to a person authorized by the owner, subject to payment of the lien under subsection (23).

Security not subject to other claims

242.2(16) The money or security for money deposited with the Minister of Finance is not subject to any other claim or demand.

Release of seized vehicle of low value

242.2(17) If the designated person is satisfied that the costs and charges related to the seizure of a motor vehicle under this section will or could amount to more than the value of the vehicle or the value of the interest of the owner in the vehicle, whichever is less, the person

(a) may release the vehicle to the owner subject to payment of the lien under subsection (23) (garage keeper's lien); and

(b) before releasing the vehicle, may register a notice, in the form of a financing statement, under Part IV (registration) of The Personal Property Security Act, that the vehicle is subject to forfeiture under this section.

Effect of forfeiture on transfer or new security interest

242.2(18) If a notice is registered under subsection (17), any transfer of the motor vehicle by the owner and any security interest given by the owner after the vehicle is released is void upon forfeiture of the vehicle under clause (26)(b).

Notice of release to be given to owner

242.2(19) If a motor vehicle is released under subsection (17), the designated person shall give notice to the owner of

(a) the release of the vehicle;

(b) any notice registered under clause (17)(b); and

(c) the possible disposal of the vehicle

(i) under the regulations, or

(ii) if the vehicle is an item of collateral under The Personal Property Security Act, by the secured creditor pursuant to that Act,

if the vehicle is not removed from storage within 30 days after the date of release.

Procedure when released vehicle is not removed

242.2(20) If a motor vehicle referred to in subsection (19) is not removed from storage by the owner within 30 days after the date of release, the designated person shall

(a) give the garage keeper approval to dispose of the vehicle in accordance with the regulations; or

(b) where the vehicle is an item of collateral under The Personal Property Security Act, give notice to the secured party of the amount of the lien under subsection (23) (garage keeper's lien).

Secured party may pay costs and proceed on default

242.2(21) A motor vehicle referred to in clause (20)(b) may be released to the secured party on payment of the lien under subsection (23), and the party may

(a) add the amount paid to the amount owing under the security agreement; and

(b) proceed in accordance with The Personal Property Security Act in respect of the default of the owner of the vehicle in failing to pay the lien.

Procedure on Seizure of Vehicles

Requirements for peace officer seizing vehicle

242.2(22) A peace officer who seizes a motor vehicle under this section shall

(a) complete an acknowledgement of seizure setting out

(i) the name and address of the driver, each passenger that the peace officer had reason to believe had committed an offence referred in clauses (3)(a) to (c), and the owner of the vehicle,

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

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

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

(b) give the driver referred to in subclause (a)(i) a copy of the acknowledgement;

(c) if the owner is present at the time of the seizure, give the owner a copy of the acknowledgement, and if the owner is not then present, without delay send a copy of the acknowledgement 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 vehicle; and

(e) retain a copy of the acknowledgement.

Lien for Costs Relating to Seizure

Lien for costs relating to seizure of vehicle

242.2(23) A motor vehicle that is seized under this section shall be stored where the peace officer directs, and the garage keeper who stores the vehicle has a lien, which may be enforced in accordance with the regulations, for the following:

(a) costs and charges relating to the seizure of the vehicle, as prescribed by regulation;

(b) costs and charges on account of administration of this section to be paid to the Minister of Finance upon the release of the seized vehicle, as prescribed by regulation;

(c) the cost of searches and registrations, and other charges under The Personal Property Security Act, that are reasonably necessary for the garage keeper to perform his or her obligations.

Effect of garage keeper's lien

242.2(24) A motor vehicle that is subject to a lien under subsection (23) shall be retained in the custody of the law until the lien is paid or the vehicle is dealt with under this Act or the regulations.

Return or Forfeiture of Vehicles and Deposits

Process when no person is convicted

242.2(25  ) If no person is convicted of an offence in respect of which a motor vehicle is seized under this section, the Minister of Justice shall

(a) if the vehicle has not been released under this section, release the vehicle;

(b) if a notice has been registered in the Personal Property Registry under clause (17)(b), discharge the notice in accordance with The Personal Property Security Act; and

(c) return any sum of money or security for money deposited with the Minister of Finance in respect of the vehicle under this section.

Forfeiture of vehicle or deposit on conviction

242.2(26) When a person who is in a motor vehicle at the time it is seized under subsection (3) is convicted of an offence referred to in that subsection

(a) if the owner of the vehicle has deposited money or security for money under subsection (13), the deposit is forfeited;

(b) if a notice has been registered in the Personal Property Registry under clause (17)(b), the vehicle is forfeited to the government, subject to any security interest registered before the notice;

(c) if at the time of the conviction the vehicle remains under seizure and has not been released under this section or disposed of under the regulations, the vehicle is forfeited to the government, subject to any security interest registered before the seizure.

Value of certain forfeited vehicles is debt due

242.2(27) Where a motor vehicle forfeited under clause (26)(b) is for any reason at the time of forfeiture not being operated in the province, or the value of the vehicle has decreased since it was seized, the Minister of Justice may recover from the owner of the vehicle, as a debt due to the Crown,

(a) in the case of a vehicle not being operated, the value of the vehicle at the time it was seized; or

(b) in the case of a decrease in value, the amount of the decrease.

Use of funds from deposit or sale of vehicle

242.2(28) Proceeds realized from a forfeited deposit or from the sale of a forfeited motor vehicle shall be used

(a) to pay any costs and charges relating to the seizure of the vehicle, as determined by the designated person in accordance with the regulations; and

(b) after payment of the costs and charges, to assist any groups or organizations that, in the opinion of the Minister of Justice, support or deliver programs to reduce the occurrence of the offences referred to in clauses (3)(a) to (c).

General Provisions

Owner's right against driver for amount of lien

242.2(29) The owner of a motor vehicle that is seized under this section may recover, from the person who was the driver at the time the vehicle was seized, the amount of any lien that the owner is required to pay under this section.

Indemnification

242.2(30) Despite subsection 41(3) (settlement of claims) of The Financial Administration Act, subsection (23) (garage keeper's lien) of this section, and regulations made under clauses (32)(g) and (h) (costs and charges), the Minister of Justice may, where he or she considers it reasonable and just in respect of a seizure made under this section,

(a) waive any cost or charge prescribed by regulation; and

(b) indemnify the owner of the motor vehicle for any direct cost incurred by the owner in respect of the seizure.

Reasons for indemnification

242.2(31) Where the Minister of Justice acts under subsection (30), he or she shall file with the designated person the reasons for doing so.

Regulations

242.2(32) The Lieutenant Governor in Council may make regulations

(a) respecting the towing, transportation, care, storage and disposal of motor vehicles seized under this section, including the application of provisions of The Garage Keepers Act;

(b) respecting the release of motor vehicles seized under this section;

(c) prescribing fees for the purpose of clause (10)(b);

(d) for the purpose of subsections (13), (17) and (27), respecting the determination of the value of motor vehicles;

(e) respecting the deposit of money or security for money under subsection (13), including the disposition of interest earned on deposits;

(f) respecting the enforcement of liens under subsection (23);

(g) for the purpose of clauses (23)(a) and (28)(a), respecting costs and charges relating to the seizure of motor vehicles, including the towing, transportation, care, storage and disposal of vehicles, or the manner in which those costs and charges are to be determined;

(h) for the purpose of clause (23)(b), respecting the costs and charges payable on account of administration, or the manner in which those costs and charges are to be determined;

(i) respecting criteria for the exercise of discretion under subsection (30);

(j) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this section.

Coming into force

3         This Act comes into force on a day fixed by proclamation.