Home| Updated to: September 5, 2008 This is not an official version. |
Search this Act Information table |
C.C.S.M. c. H60
The Highway Traffic Act
| Table of Contents | Regulations |
| Sections: 1 - 73 | 74 - 152 | 153 - 240 | 241 - 337 |
PART VII
ENFORCEMENT PROVISIONS AND SUSPENSION OF REGISTRATION AND LICENCES
DIVISION I
ENFORCEMENT PROVISIONS
ARREST WITHOUT WARRANT
241(1) A peace officer who, on reasonable and probable grounds, believes that a violation of any of the following provisions, that is to say,
(a) subsection 24(1) or (1.1);
(b) repealed, S.M. 2005, c. 37, Sch. B, s. 47;
(c) subsection 95(1) or (2);
(d) subsection 98(5) or (7);
(e) subsection 114(1);
(f) subsection 155(1), (2), (3), (4), or (5);
(g) clause 170(1)(a), (b), or (c);
(h) section 171 or 173;
(i) subsection 174(1) or (3);
(j) subsection 188(2);
(k) subsection 201(1);
(l) section 210, 213, 224 or 225;
of this Act, or any provision of section 249, 252, 253, 254, 255, 259 or 335 of the Criminal Code, has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed such a violation, may arrest that person without warrant whether he is guilty or not.
241(2) A person called upon to assist a peace officer in the arrest of a person suspected of having committed any offence mentioned in subsection (1), may assist if he believes that the person calling on him for assistance is a peace officer, and does not know that there are no reasonable grounds for the suspicion.
S.M. 1986-87, c. 14, s. 26; S.M. 1989-90, c. 56, s. 33; S.M. 2005, c. 37, Sch. B, s. 47.
INSPECTION AND SEARCH AND SEIZURE
241.1(1) In this section, "place" includes a vehicle.
241.1(2) On entering any place for the purpose of exercising powers under this section, a peace officer shall show his or her official identification to the person in charge of the place if the person so requests.
241.1(3) A peace officer who intends to exercise powers under this section may not enter a dwelling place except with the consent of the occupant or under the authority of a warrant.
241.1(4) A peace officer may at any reasonable time enter a place and make any inspection that is reasonably required for the purpose of determining compliance with this Act and the regulations and, without limitation, the peace officer may
(a) examine, and require the production of, any records or documents in the place that are relevant for the purposes of the inspection;
(b) use a computer system at the place to examine any data in or available to the system;
(c) reproduce any record or document from the data in the form of a print-out or other intelligible output for the purpose of examination or copying;
(d) use any copying equipment at the place to make copies of any record or document; and
(e) require any person to present any vehicle or thing for inspection in the manner and under the conditions that the peace officer reasonably considers necessary to carry out the inspection.
241.1(5) No person shall obstruct or hinder, or make a false or misleading statement to, a peace officer who is carrying out an inspection under this section.
241.1(6) The owner or person in charge of a place referred to in subsection (4) and every person found in that place shall give the peace officer all reasonable assistance to enable the peace officer to carry out his or her duties and shall furnish the peace officer with any information the peace officer may reasonably require.
241.1(7) For the purpose of exercising the powers under subsection (4), a peace officer may remove any record or document or reproduction of a record or document that he or she is entitled to examine or copy, but shall give a receipt to the person from whom it is taken and shall examine or copy it within a reasonable time and return it promptly on completion of the examination or copying.
241.1(8) A copy made as provided in this section and purporting to be certified by a peace officer is admissible in evidence in any action, proceeding or prosecution as proof, in the absence of evidence to the contrary, of the original.
241.1(9) A justice who is satisfied by information on oath that
(a) the conditions for entry described in subsection (4) exist in relation to a dwelling place;
(b) entry to the dwelling place is necessary for the purpose of exercising the powers under subsection (4); and
(c) entry to the dwelling place has been refused or there are reasonable grounds to believe that entry will be refused;
may at any time issue a warrant authorizing a peace officer and any person named in the warrant to enter the dwelling place, subject to any conditions that may be specified in the warrant.
Search and seizure without warrant
241.1(10) When a peace officer believes on reasonable and probable grounds that
(a) an offence under this Act has been committed; and
(b) a record, document, vehicle or other thing that affords evidence of the offence is to be found in a place;
and it is not practicable in the circumstances to obtain a warrant, the peace officer may, without warrant, enter and search the place for the record, document, vehicle or other thing and may seize it and bring it before a justice, or report on it to a justice, to be dealt with according to law.
Search and seizure with warrant
241.1(11) A justice who is satisfied by information on oath that there are reasonable grounds to believe that
(a) an offence under this Act has been committed; and
(b) there is to be found in any place anything that will afford evidence in respect of the commission of an offence;
may at any time issue a warrant authorizing a peace officer and any person named in the warrant to enter and search the place for the thing and seize and bring it before a justice, or report on it to a justice, to be dealt with according to law.
241.1(12) A peace officer and any person named in a warrant may use whatever reasonable force is necessary to execute the warrant and may call on a police officer for assistance in executing it.
241.1(13) A peace officer may take such measures as are reasonably necessary to secure any place or thing in relation to which a warrant under this section may be issued so as to preserve that place or thing pending the making and disposition of an application for the warrant.
S.M. 1997, c. 37, s 22; S.M. 2005, c. 37, Sch. B, s. 48.
DETENTION OF VEHICLE
Detention of motor vehicle by peace officer
242(1) A peace officer who has reason to believe that an offence has been committed by means of, or in relation to, a motor vehicle may detain the vehicle for five clear days, but the vehicle may be released sooner
(a) if security for its production is given to the satisfaction of a justice; or
(b) the justice is satisfied, by a certificate signed by a qualified mechanic, that the motor vehicle complies with the requirements set out in clauses 204(1)(a), (b), (d), (e) and (f).
Order for extending period of detention
242(2) Where a motor vehicle has been detained under subsection (1) and it is required
(a) as evidence in a prosecution for an alleged offence under this Act or an alleged offence under the Criminal Code (Canada) committed by means of, or in relation to, a motor vehicle or off-road vehicle; or
(b) for further investigation related to an offence under this Act or an alleged offence under the Criminal Code (Canada) committed by means of, or in relation to, a motor vehicle or off-road vehicle; or
(c) the owner has failed to furnish to a justice a certificate signed by a qualified mechanic as provided for in clause (1)(b);
a peace officer may apply to a justice for an order to continue the detention of the motor vehicle beyond the period prescribed in subsection (1), and the peace officer making the application shall furnish to the justice full particulars of the reasons for the continuance of detention of the motor vehicle.
Period of extension to be reasonable
242(3) The justice, in making an order under subsection (2), may order that the motor vehicle be detained for such further period as to him appears reasonable and just.
Notification of detention to owner
242(4) Where the owner of a motor vehicle was not present at the time when it was detained, the peace officer shall take all reasonable steps to notify the owner that his motor vehicle was detained, together with the reasons for its detention and of the place where it is detained or stored.
Personal property to be returned
242(5) Any personal property present in a motor vehicle which has been detained shall be returned to the owner thereof 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 (1), (2) and (3) apply mutatis mutandis.
Person arrested brought before a justice
242(6) A peace officer making an arrest shall, with reasonable diligence, take the person arrested before a justice to be dealt with according to law.
242(7) Where a motor vehicle is detained under this section,
(a) if repairs are necessary and immediately desired by the owner, it shall be taken to, and kept in, such repair shop or garage as the owner may select, for the purpose of having it repaired; or
(b) if repairs are not necessary or are not immediately desired by the owner, to such garage or storage place as the owner may select, unless otherwise required by the police, in which case the peace officer may direct it to be taken to a garage or storage place maintained by any police force or other public authority, if available, and otherwise to a garage or storage place designated by the peace officer.
Change of place of impoundment
242(8) Where, under subsection (7), a motor vehicle has been taken to a repair shop, garage, or storage place, selected by the owner, the chief constable, or the officer in command in Manitoba, of the police force of which the peace officer who detained the motor vehicle is a member, on receipt of a written application by the owner, may authorize the motor vehicle to be transferred to such other repair shop, garage, or storage place, as the applicant may select, and may give all necessary directions to that end; and shall in that case, give to the owner, operator, and manager or other person in charge of the repair shop, garage, or other storage place, to which the motor vehicle is transferred a notice as prescribed in subsection (9).
242(9) Where a motor vehicle detained under this section is placed in a repair shop, garage, or storage place, the peace officer detaining it shall notify the owner, operator, manager, or other person in charge, of the repair shop, garage, or storage place, in writing, on a form prescribed by the registrar, that the motor vehicle is detained and must not be removed or permitted to be removed or released from detainment except upon the order of a justice or of the chief constable or the officer in command in Manitoba of the police force of which the peace officer who detained the motor vehicle is a member.
242(10) Subject to subsection (8), no person shall remove, or permit to be removed, from the place of detention, or release from detention, any motor vehicle detained under this section except upon the written order of a justice or of the chief constable or the officer in command in Manitoba of the police force of which the peace officer who detained the motor vehicle is a member.
242(11) Costs and charges incurred in moving or storing a vehicle, or both, under this section, are a lien on the vehicle that may be enforced under The Garage Keepers Act by the person who moved or stored the vehicle at the request of the peace officer.
242(12) In subsections (7) and (8), the word "owner" includes any person who has sold the motor vehicle under the terms of a conditional sale agreement or lien note upon which all or part of the purchase price remains unpaid, or to whom a bill of sale by way of chattel mortgage thereon has been given, in respect of which all or part of the moneys secured thereby remain unpaid; and also includes an assignee of any such person.
SEIZURE AND IMPOUNDMENT OF VEHICLES FOR CERTAIN OFFENCES
Definitions
242.1(1) In this section,
"designated person" means a person designated by the Minister of Justice for the purpose of this section; (« personne désignée »)
"motor vehicle" includes an off-road vehicle. (« véhicule automobile »)
Seizure of Vehicles
Seizure and impoundment of certain vehicles
242.1(1.1) Subject to subsection (1.2), a peace officer shall seize a motor vehicle and impound it if the officer has reason to believe
(a) that a person who was operating the vehicle contravened subsection 225(1) (driving while disqualified or prohibited) or 225(1.1) (off-road vehicles) of this Act or subsection 259(4) (operation while disqualified) of the Criminal Code (Canada);
(b) based on an analysis of the breath or blood of a person who was operating the vehicle or had care or control of it, that the person had consumed alcohol in such a quantity that the concentration of it in his or her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood;
(c) that a person who was operating the vehicle, or had care or control of it, failed or refused to comply with a demand to supply a sample of his or her breath or blood, under section 254 of the Criminal Code (Canada); or
(d) that, after a demand from a peace officer under subsection 76.2(1) to go through a field sobriety test, the driver of the vehicle
(i) refused to go through the test, or
(ii) failed to follow the peace officer's instructions regarding the test.
Delaying Impoundment
Motor vehicle released for safety, undue hardship
242.1(1.2) Where a peace officer is satisfied that the seizure and impoundment of a motor vehicle under subsection (1.1) would jeopardize the safety of, or cause undue hardship to, any person, or is, in the opinion of the officer, not practicable in the circumstances the peace officer may delay taking custody of the motor vehicle, in which case the peace officer may permit the motor vehicle to be driven to a location specified by the peace officer, where any peace officer may take custody of it.
Later Seizure of Vehicle
Application for order to seize and impound
242.1(1.3) Where under subsection (1.2) a peace officer permits a motor vehicle to be driven to a specified location and the vehicle is not impounded at that location, a peace officer may make application to a justice for an order to seize the vehicle and impound it in accordance with this section, with necessary modifications.
Stolen Vehicles
242.1(1.4) If, at any time before a hearing is conducted under this section, a peace officer is satisfied that a motor vehicle seized under subsection (1.1) had been stolen, the officer may, subject to the approval of the designated person, release the vehicle to the owner, or a person authorized by the owner to take possession of it, and subsection (13) (indemnification) applies, with necessary modifications.
Procedure on Seizure
242.1(2) Where a motor vehicle has been seized and impounded, the peace officer shall
(a) complete a notice of seizure setting out
(i) the name and address of the driver, and of the owner if the driver is not the owner and discloses the name and address of the owner,
(ii) the year, make and serial number of the motor vehicle,
(iii) the date and time of the seizure,
(iv) the place where the vehicle is to be impounded, and
(v) if the vehicle is seized under clause (1.1)(b) (blood alcohol over .08), the result of the analysis of the breath or blood;
(a.1) if the driver is not, or does not appear to be, the owner of the motor vehicle, request that the driver disclose the name and address of the owner;
(b) give the driver a copy of the notice;
(c) give a copy of the notice to the owner, if the owner is present at the time of the seizure, or, if the owner is not present, without delay mail a copy to the owner
(i) at the owner's last known address as recorded in the registrar's records of motor vehicle registrations, or
(ii) if the owner's address is not recorded in the registrar's records, at the address indicated by the driver in response to the peace officer's request under clause (a.1);
(c.1) without delay, mail a copy of the notice to the designated person;
(d) cause a copy of the notice to be given to the garage keeper who stores the motor vehicle; and
(e) retain a copy of the notice.
Lien for Costs of Storage
Costs relating to impoundment are lien on vehicle
242.1(3) A motor vehicle that is seized and impounded under this section shall be stored where the peace officer directs, and the following amounts are a lien on the impounded vehicle that may be enforced in the manner provided in The Garage Keepers Act:
(a) costs and charges prescribed by a regulation made under subsection 319(1);
(b) expenditures for searches, registrations and other charges under The Personal Property Security Act that are reasonably necessary for the garage keeper to comply with the requirements of The Garage Keepers Act.
Release on Return of Licence or Permit
Vehicle to be released if driver's licence is returned
242.1(3.1) Where a motor vehicle is seized and impounded under clause (1.1)(b), (c) or (d) and an application by the driver under section 263.2 (review of suspension and disqualification) results in the return of his or her licence or permit,
(a) the vehicle is no longer subject to impoundment under this section, unless the vehicle was also seized under clause (1.1)(a) (drive disqualified) or detained under another provision of this Act or The Drivers and Vehicles Act; and
(b) the designated person shall, subject to subsection (9) (lien), authorize the release of the vehicle to the owner or to a person authorized by the owner.
Application for Early Release Based on Owner's Reasonable Belief or Knowledge
Application by certain owners for early release of vehicle
242.1(4) An owner of a motor vehicle seized and impounded under this section, other than an owner who was the driver or had care or control at the time the vehicle was seized under clause (1.1)(b), (c) or (d), may, at any time before the expiry of the period of impoundment, apply to a justice for the hearing of such applications for the revocation of the seizure by
(a) making application in the form and in the manner required by the Minister of Justice; and
(b) paying the prescribed fee.
Justice to consider report and certificate
242.1(4.1) In a hearing conducted under subsection (4), the justice shall consider a report of a peace officer respecting the seizure of the motor vehicle, and may consider
(a) a certificate of the registrar respecting any licence or permit issued under The Drivers and Vehicles Act or this Act in the name of
(i) the owner who applies under subsection (4),
(ii) the person named as the driver of the motor vehicle in a notice completed under subsection 242.1(2), and
(iii) the person named as the driver of the motor vehicle by the applicant owner, where the person is not the same person named in subclause (ii); and
(b) a report of the designated person respecting a record of any previous seizure under this section of a motor vehicle that was at the time of the seizure registered in the name of, or owned by, the owner applying under subsection (4).
Issue to be determined when driver is not owner
242.1(5) Where, after considering an application under subsection (4) by an owner who was not the driver at the time the motor vehicle was liable to seizure, the justice is satisfied that
(a) the driver was in possession of the vehicle without the knowledge and consent of the owner;
(b) in the case of a seizure under clause (1.1)(a) (drive disqualified), 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 driver was disqualified or prohibited from driving or operating a motor vehicle; or
(c) in the case of a seizure under clause (1.1)(b), (c) or (d), the owner could not reasonably have been expected to know that the driver would operate or have care or control of the vehicle in such circumstances;
the justice shall
(d) revoke the seizure;
(e) subject to subsection (9) (lien), 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
(f) direct that the fee paid by the applicant be refunded.
Issue to be determined when driver is owner
242.1(6) Where, after considering an application under subsection (4) by an owner who was the driver at the time the motor vehicle was liable to seizure under clause (1.1)(a) (drive disqualified), 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 or that he or she was disqualified from holding a driver's licence or was disqualified or prohibited from driving or operating a motor vehicle, and the justice is satisfied that the owner had at the time of the seizure complied with section 13 of The Drivers and Vehicles Act and, if applicable, section 82 of that Act, the justice shall
(a) revoke the seizure;
(b) subject to subsection (9) (lien), 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.
Release on Expiry of Impoundment Period
Release of vehicle after impoundment period
242.1(7) Unless otherwise required by this Act or The Drivers and Vehicles Act, and subject to subsection (9) (lien), a peace officer shall, on the written request of the owner or a person authorized by the owner, direct that the motor vehicle be released to the owner or a person authorized by the owner after the period of impoundment expires.
Periods of Impoundment
242.1(7.1) Subject to subsection (7.1.1) (previous seizure), a motor vehicle seized under this section shall be impounded for the following periods:
(a) when the seizure is under clause (1.1)(a) (driving disqualified), 30 days;
(b) when the seizure is under clause (1.1)(b) (blood alcohol over .08) and the concentration of alcohol is 160 milligrams or less in 100 millilitres of blood, 30 days;
(c) when the seizure is under clause (1.1)(b) (blood alcohol over .08) and the concentration of alcohol is more than 160 milligrams in 100 millilitres of blood, 60 days;
(d) when the seizure is under clause (1.1)(c) (refuse to supply sample), 60 days;
(e) when the seizure is under clause (1.1)(d) (refuse/fail to undergo field sobriety test), 60 days.
Second or subsequent seizure within five years
242.1(7.1.1) Where a motor vehicle seized under this section is registered in the name of, or owned by, a person who, within the five year period before the day of the seizure, was registered as the owner, or was the owner, of a motor vehicle that was seized under any provision of this section, the vehicle shall be impounded for the following period:
(a) when the seizure is under clause (1.1)(a) (driving disqualified),
(i) for the second seizure, 90 days, and
(ii) for a subsequent seizure, 90 days and an additional 60 days for each seizure after the second;
(b) subject to subsection (7.1.2), when the seizure is under clause (1.1)(b) (blood alcohol over .08) and the concentration of alcohol is 160 milligrams or less in 100 millilitres of blood,
(i) for a second seizure, 90 days, and
(ii) for a subsequent seizure, 90 days and an additional 60 days for each seizure after the second;
(c) when the seizure is under clause (1.1)(b) (blood alcohol over .08) and the concentration of alcohol is more than 160 milligrams in 100 millilitres of blood,
(i) for a second seizure, 180 days, and
(ii) for a subsequent seizure, 180 days and an additional 60 days for each seizure after the second;
(d) when the seizure is under clause (1.1)(c) (refuse to supply sample),
(i) for a second seizure, 180 days, and
(ii) for a subsequent seizure, 180 days and an additional 60 days for each seizure after the second;
(e) when the seizure is under clause (1.1)(d) (refuse/fail to undergo field sobriety test),
(i) for a second seizure, 180 days, and
(ii) for a subsequent seizure, 180 days and an additional 60 days for each seizure after the second.
When previous seizure within five years relates to refusal or blood alcohol of more than 0.16
242.1(7.1.2) Where a motor vehicle seized under clause (1.1)(b) (blood alcohol over .08) is registered in the name of, or owned by, a person who, within the five year period before the day of the seizure, was registered as the owner, or was the owner, of a motor vehicle that was seized under
(a) clause (1.1)(b) and the concentration of alcohol was more than 160 milligrams in 100 millilitres of blood;
(b) clause (1.1)(c) (refuse to supply sample); or
(b.1) clause (1.1)(d) (refuse/fail to undergo field sobriety test);
the vehicle shall be impounded for the following period:
(c) for a second seizure, 180 days;
(d) for a subsequent seizure, 180 days and an additional 60 days for each seizure after the second.
Effect of revocation of previous seizure
242.1(7.1.3) For the purposes of subsections (7.1.1) and (7.1.2), the seizure of a vehicle shall not be considered as a previous seizure if
(a) the vehicle was released under subsection (1.4), (3.1) or (13); or
(b) the seizure was revoked under subsection (5) or (6).
Notice to be given of period of impoundment
242.1(7.2) Where a motor vehicle is subject to a period of impoundment under subsection (7.1.1) (second or subsequent seizure) or (7.1.2) (previous seizure for blood alcohol of more than 0.16), the designated person shall as soon as practicable give notice of the period of impoundment by regular mail to
(a) the owner of the vehicle, or the person in whose name it is registered;
(b) the garage keeper who has custody of the vehicle; and
(c) the peace officer who seized the vehicle and impounded it.
Application for Review of Impoundment Period
Justice to consider designated person's report
242.1(7.3) Subsections (4) and (4.1) (application to justice for release of vehicle) apply, with necessary modifications, to an application by an owner of a motor vehicle who contests the application of subsection (7.1.1) (second or subsequent seizure) or (7.1.2) (previous seizure for blood alcohol of more than 0.16) to the vehicle, and the justice who hears the application shall consider a report from the designated person respecting any motor vehicle seized under this section
(a) while registered in the name of, or owned by, the applicant; and
(b) within five years before the seizure of the vehicle that is the subject of the application.
Removal or Release of Seized Vehicles
No removal of impounded vehicle except as authorized
242.1(8) No person shall remove or release or permit the removal or release of a motor vehicle that is impounded under this section from the place of impoundment unless one of the following provisions applies to the vehicle:
(a) subsection (1.4) (stolen vehicle);
(b) subsection (3.1) (return of licence or permit);
(c) subsection (5) (direction by justice);
(d) subsection (6) (direction by justice);
(e) subsection (7) (expiry of impoundment period);
(f) subsection (13) (wrongful seizure).
Officer may direct movement of vehicle
242.1(8.1) A peace officer may direct that an impounded motor vehicle be moved for the purpose of impounding it at another location.
Lien and Disposal of Vehicles
242.1(9) A motor vehicle that is subject to a lien under this section shall remain impounded until the amount of the lien is paid or the vehicle is disposed of in accordance with this section and the regulations.
242.1(10) The garage keeper shall notify the Department of Justice of the sale of each motor vehicle sold under The Garage Keepers Act.
Disposal of impounded vehicle by garage keeper
242.1(10.1) Despite subsection (9), a garage keeper who stores a motor vehicle that is impounded under this section may, on the expiry of the period of impoundment and with the approval of the designated person, dispose of it, by sale or otherwise, after delivering the number plates from the vehicle to the designated person and filing with him or her
(a) a statutory declaration of the garage keeper declaring that the amount of his or her lien on the motor vehicle exceeds his or her estimate of its value; and
(b) a certificate issued under The Personal Property Security Act showing that the serial number of the motor vehicle is not identified as an item of collateral in the personal property registry.
Transfer of ownership to garage keeper
242.1(10.2) Where under subsection (10.1) the designated person approves the disposal of a motor vehicle by a garage keeper, the designated person shall complete a transfer of vehicle ownership, in a form that the Minister of Justice may prescribe, from the owner of the motor vehicle to the garage keeper, and the registrar shall, on receiving the completed form and the number plate or plates from the motor vehicle, cancel the registration of the motor vehicle and forward any refund therefrom to the designated person for application to any costs and charges owing to the Minister of Finance in respect of the motor vehicle, as prescribed by regulation, after which any balance shall be paid to the previous owner of the motor vehicle.
General Provisions
Personal property in motor vehicle
242.1(11) Subject to subsection 242(5) of this Act and subsection 54(3) of The Off-Road Vehicles Act, personal property present in or on a motor vehicle which has been seized and 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.
242.1(12) The owner of a motor vehicle seized under this section may recover any lien costs that he or she has paid from the person who was the driver at the time of the seizure.
Minister may indemnify for wrongful seizure
242.1(13) Notwithstanding subsection 41(2) of The Financial Administration Act and any other provision in this section, the Minister of Justice may, where he or she is satisfied that a motor vehicle has been wrongfully seized under this section,
(a) authorize the release of the motor vehicle from impoundment;
(b) waive any fee, cost or charge prescribed by regulation; and
(c) indemnify the owner of the motor vehicle for any direct cost incurred by the owner in respect of the seizure.
Justice may order seizure of motor vehicle
242.1(14) A peace officer may apply to a justice for an order authorizing the seizure of a motor vehicle under this section and, where the justice is satisfied that the peace officer has reason to believe that a person has operated or had care or control of a motor vehicle as set out in subsection (1.1), the justice may grant an order authorizing any peace officer to seize the vehicle and impound it and, for that purpose, to enter a building or place where the motor vehicle is stored or kept.
Result of failure to obtain order
242.1(15) The failure of a peace officer to obtain an order from a justice under subsection (14) does not invalidate any seizure and impoundment of a motor vehicle that is otherwise lawfully performed or authorized.
Tabling of annual report in Assembly
242.1(16) The designated person shall, within 60 days of the end of each fiscal year, submit a report respecting operations under this section to the Minister of Justice who shall immediately lay a copy of the report before the Legislative Assembly if the Assembly is then in Session or, if the Assembly is not then in Session, within 15 days of the commencement of the next Session.
S.M. 1989-90, c. 4, s. 8; S.M. 1989-90, c. 7, s. 3 to 10; S.M. 1991-92, c. 23, s. 2; S.M. 1997, c. 37, s. 23; S.M. 1997, c. 38, s. 4; S.M. 1999, c. 12, s. 7; S.M. 1999, c. 13, s. 7; S.M. 1999, c. 35, s. 3 and 8; S.M. 2000, c. 34, s. 4; S.M. 2001, c. 19, s. 27; S.M. 2004, c. 11, s. 6; S.M. 2005, c. 8, s. 17; S.M. 2005, c. 37, Sch. B, s. 48.
SEIZURE OF VEHICLES IN PROSTITUTION RELATED OFFENCES
242.2(1) In this section and in section 242.3, "designated person" means a person designated by the Minister of Justice for the purposes of those sections.
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 or on 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).
242.2(9) Repealed, S.M. 1999, c. 13, s. 8.
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 to hear applications for the release of vehicles under this section by
(a) making application in the form and manner required by the Minister of Justice; 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.
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 5 (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.
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.
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.
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.
S.M. 1998, c. 40, s. 2; S.M. 1999, c. 13, s. 8; S.M. 1999, c. 35, s. 4; S.M. 2000, c. 6, s. 20; S.M. 2001, c. 29, s. 6; S.M. 2005, c. 8, s. 17.
FORFEITURE OF VEHICLES FOR CERTAIN OFFENCES
242.3(1) In this section, "motor vehicle" includes an off-road vehicle, but does not include a stolen motor vehicle or stolen off-road vehicle.
Liability of vehicle to forfeiture for single offence
242.3(2) A motor vehicle by means of which, or in relation to which, an offence under any of the following provisions of the Criminal Code is committed is liable to be forfeited to the government upon the commission of the offence:
(a) section 220 (criminal negligence causing death);
(b) section 221 (criminal negligence causing bodily harm);
(c) section 236 (manslaughter);
(d) subsection 249(3) (dangerous operation causing bodily harm);
(e) subsection 249(4) (dangerous operation causing death);
(f) paragraph 249.1(4)(a) (flight from police causing bodily harm);
(g) paragraph 249.1(4)(b) (flight from police causing death);
(g.1) section 249.2 (criminal negligence causing death while street racing);
(g.2) section 249.3 (criminal negligence causing bodily harm while street racing);
(g.3) subsection 249.4(3) (dangerous operation causing bodily harm while street racing);
(g.4) subsection 249.4(4) (dangerous operation causing death while street racing);
(h) subsection 255(2) (impaired driving causing bodily harm);
(i) subsection 255(3) (impaired driving causing death).
Liability of vehicle to forfeiture for third or subsequent offence
242.3(3) A motor vehicle by means of which, or in relation to which, an offence under any of the following provisions of the Criminal Code is committed is liable to be forfeited to the government upon the commission of the offence if, within five years before committing the offence, the alleged offender has committed two or more offences under the provisions mentioned in this subsection and subsection (2):
(a) subsection 249(2) (dangerous operation);
(b) subsection 249.1(2) (flight from police);
(b.1) subsection 249.4(1) (dangerous operation while street racing);
(c) section 252 (fail to stop at accident);
(d) paragraph 253(a) (drive impaired);
(e) paragraph 253(b) (blood alcohol over .08);
(f) subsection 254(5) (refuse to supply sample);
(g) subsection 259(4) (drive disqualified).
Offences must arise out of separate incidents
242.3(4) All the offences giving rise to liability to forfeiture under subsection (3) must arise out of separate incidents.
Notice of forfeiture to be given to alleged offender
242.3(5) A peace officer who on reasonable grounds believes that an offence giving rise to liability to forfeiture has been committed shall, whenever it is practicable, give a notice of forfeiture to the alleged offender.
Lack of notice does not affect liability to forfeiture
242.3(6) If the alleged offender is not given a notice of forfeiture under subsection (5), the motor vehicle's liability to forfeiture is not affected.
242.3(7) After preparing a notice of forfeiture, a peace officer must give a copy of it to the designated person without delay.
Registration of financing statement
242.3(8) Upon receiving a notice of forfeiture from a peace officer or otherwise being notified that a motor vehicle is liable to forfeiture, the designated person shall register a notice, in the form of a financing statement, under Part 5 of The Personal Property Security Act, that the motor vehicle is liable to forfeiture under this section.
242.3(9) After registering a financing statement under subsection (8), the designated person must send the motor vehicle's owner an owner's notice of forfeiture and a copy of the registered financing statement at his or her last known address
(a) as recorded in the registrar's records of motor vehicle registrations; or
(b) as otherwise determined by the designated person.
Effect of forfeiture on transfer or new security interest
242.3(10) When a financing statement is registered under subsection (8), any transfer of the motor vehicle by the owner afterward, and any security interest in it given by the owner afterward, is void upon forfeiture of the vehicle under subsection (21).
Financing statement to be sent to secured party
242.3(11) If the motor vehicle is an item of collateral under The Personal Property Security Act, the designated person must, after registering a financing statement under subsection (8), send a copy of it to the secured party at his or her address as set out in his or her registration under that Act in relation to the vehicle.
Application to court by certain owners of vehicles
242.3(12) If the owner of the motor vehicle is not charged with the offence for which the vehicle is liable to be forfeited, he or she may apply to a justice to hear applications for the release of vehicles from liability to forfeiture under this section by
(a) making application in the form and manner required by the Minister of Justice; and
(b) paying the prescribed fee.
Justice may consider any relevant evidence
242.3(13) In a hearing conducted under subsection (12), the justice may consider any evidence or information he or she considers relevant.
242.3(14) The justice may order that the motor vehicle is no longer liable to be forfeited for the offence if he or she is satisfied that
(a) at the time of the offence, the offender was in possession of it without the knowledge and consent of the owner; or
(b) the owner could not reasonably have known that the vehicle would be operated in the course of committing the offence.
Owner may deposit security to release vehicle from forfeiture
242.3(15) The owner of the motor vehicle may, before the vehicle is forfeited, apply to the designated person for a release of its liability to forfeiture on deposit of a sum of money, or security for money approved by the Minister of Finance, equal to the vehicle's value or the value of the owner's interest in it, as determined by the designated person in accordance with the regulations.
Certificate of Minister of Finance confirming deposit
242.3(16) The owner shall deposit the amount determined under subsection (15), or security for it, with the Minister of Finance, who shall issue to the owner a certificate that confirms the amount of the deposit. When the certificate is issued, the motor vehicle is released from liability for forfeiture for the offence.
Security not subject to other claims
242.3(17) The money or security for money deposited with the Minister of Finance is not subject to any other claim or demand.
Designated person to discharge financing statement
242.3(18) On receiving an order made under subsection (14) or a certificate issued under subsection (16), the designated person must discharge the financing statement that he or she registered against the motor vehicle.
Release of forfeiture when no person is convicted
242.3(19) A vehicle is no longer liable to forfeiture for an offence when the charge for the offence is stayed, or the alleged offender is acquitted of the charge, and one of the following events occurs:
(a) the applicable appeal period expires without the Crown having made an appeal;
(b) the Crown abandons the appeal, if any;
(c) the final court of appeal
(i) upholds the stay or acquittal, or substitutes a conviction for another offence for which the motor vehicle is not liable to be forfeited, or
(ii) dismisses the Crown's application for leave to appeal.
Discharge of financing statement etc. when vehicle no longer liable to forfeiture
242.3(20) When a vehicle is no longer liable to forfeiture, as provided for in subsection (19),
(a) the designated person must discharge the financing statement that he or she registered against the motor vehicle; or
(b) if a sum of money or security for money was deposited in respect of the vehicle under this section, the Minister of Finance must return the sum or security deposited.
Forfeiture of vehicle or deposit on final conviction
242.3(21) When a person is convicted of an offence for which the motor vehicle is liable to be forfeited under this section and the conviction is final,
(a) if a financing statement was registered against the vehicle under subsection (8) and the vehicle has not been released from liability to forfeiture, the vehicle is forfeited to the government, subject to any security interest registered before the financing statement; or
(b) if the owner has deposited money or security for money under subsection (15), the deposit is forfeited.
Forfeiture for third or subsequent offence
242.3(22) Despite subsection (21), when an offence giving rise to liability to forfeiture is an offence referred to in any of clauses (3)(a) to (g) and it gives rise to the liability
(a) because it is a third offence, the motor vehicle or deposit is forfeited when the alleged offender is convicted of all three of the offences and the convictions are all final; and
(b) because it is an offence that is subsequent to the third, the motor vehicle or deposit is forfeited when the alleged offender is convicted of the offence giving rise to liability to forfeiture and at least two of the others and the convictions are all final.
242.3(23) A conviction is final for the purposes of this section when one of the following events occurs:
(a) the appeal period expires without the convicted person having made an appeal;
(b) the convicted person abandons the appeal;
(c) the final court of appeal
(i) upholds the conviction or substitutes a conviction for another offence for which the motor vehicle was liable to be forfeited, or
(ii) dismisses the convicted person's application for leave to appeal.
Designated person must send the owner a notice to relinquish the vehicle
242.3(24) When the conviction is final, the designated person must send a notice to relinquish the motor vehicle to the vehicle's owner at his or her last known address
(a) as recorded in the registrar's records of motor vehicle registrations; or
(b) as otherwise determined by the designated person.
Owner must relinquish vehicle within 14 days
242.3(25) The owner of the motor vehicle shall relinquish the motor vehicle to the Crown at a place of impoundment specified in the notice to relinquish the vehicle, within 14 days after the day on which the designated person sends the notice.
Application to court to set aside forfeiture
242.3(25.1) If the owner of a forfeited motor vehicle was not charged with the offence for which the vehicle was forfeited and did not apply under subsection (12) to release the vehicle from liability to forfeiture, he or she may apply for an order setting aside the forfeiture by
(a) making an application, in the form and manner required by the Minister of Justice, to a justice designated to hear applications under subsection (12); and
(b) paying the prescribed fee.
Justice may consider any relevant evidence
242.3(25.2) In a hearing conducted under subsection (25.1), the justice may consider any evidence or information he or she considers relevant.
242.3(25.3) The justice may order that the motor vehicle's forfeiture is set aside and that it is no longer liable to forfeiture for the offence if he or she is satisfied that
(a) at the time of the offence, the offender was in possession of it without the knowledge and consent of the owner; or
(b) the owner could not reasonably have known that the vehicle would be operated in the course of committing the offence.
242.3(25.4) An order under subsection (25.3) is effective once the justice issues it.
242.3(25.5) Before the justice hears evidence about the matters set out in subsection (25.3) or makes an order under that subsection, the owner must satisfy the justice that the owner applied to set aside the forfeiture promptly after learning about the need for the application and
(a) that he or she reasonably believed that he or she had taken the necessary action to release the motor vehicle from liability to forfeiture;
(b) that, through no fault of his or her own, he or she did not receive notice about the motor vehicle's liability to forfeiture before it was forfeited; or
(c) that, through no fault of his or her own, he or she did not apply under subsection (12) because he or she did not understand the application procedure or forfeiture process or because of another honest mistake.
When order may be made after vehicle's seizure
242.3(25.6) If the owner applies after the forfeited motor vehicle has been seized under subsection (39), the justice must not make an order under subsection (25.3) unless the justice is satisfied that the owner, through no fault of his or her own, did not receive the notice to relinquish the vehicle before the seizure.
Costs of seizure must be reimbursed
242.3(25.7) If the owner applies after the forfeited motor vehicle has been seized under subsection (39), the justice must not issue an order made under subsection (25.3) until the owner reimburses the government for the costs of seizing the vehicle, as determined by the designated person.
Prohibition on sale, etc., of vehicle
242.3(26) The owner of a motor vehicle that is liable to forfeiture under this section shall not dispose of his or her interest in the vehicle, or grant a security interest in the vehicle, after any of the following has occurred:
(a) he or she has been given a notice of forfeiture under subsection (5), if he or she is an alleged offender;
(b) the vehicle has been seized or detained in relation to the incident during which the offence giving rise to liability to forfeiture was committed;
(c) the designated person has registered a financing statement against the vehicle under subsection (8).
Prohibition on avoidance of forfeiture of vehicle
242.3(27) No person shall, alone or in concert with the owner of a motor vehicle that is liable to forfeiture under this section, do anything to prevent the vehicle from being forfeited or to lower its forfeiture value, including but not limited to,
(a) entering an agreement, or doing an act, to make it appear that the owner no longer owns the vehicle;
(b) hiding the vehicle;
(c) removing the vehicle from the province, other than in the normal course of operating it;
(d) wilfully damaging the vehicle; and
(e) disassembling the vehicle, or removing parts from it, other than in the ordinary course of repairs or maintenance.
242.3(28) A person who contravenes subsection (25), (26) or (27) commits an offence and is liable on summary conviction to a fine of not more than $1,000. or imprisonment for a term of not more than six months, or both.
Defence of accused re failure to relinquish vehicle
242.3(29) In a prosecution for a contravention of subsection (25), the accused has a defence if the accused can prove on a balance of probabilities
(a) that, at the time of the offence, he or she had a reasonable belief that the motor vehicle was not forfeited or that he or she was not required to relinquish it; or
(b) that, before the time of the offence, he or she took all reasonable steps to ascertain whether the vehicle was forfeited and whether he or she was required to relinquish it.
Defence of accused re disposition of vehicle
242.3(30) In a prosecution for a contravention of subsection (26), the accused has a defence if the accused can prove on a balance of probabilities that, at the time of the offence, he or she did not know, or could not reasonably have known, that the motor vehicle had been seized or detained under this Act or a financing statement had been registered under subsection (8), as may be applicable.
242.3(31) If a motor vehicle is not relinquished as required by subsection (25), the registrar may refuse to register the vehicle in any person's name and, if the vehicle is registered, may suspend or cancel the registration of the vehicle regardless of who is the registered owner.
242.3(32) A notice that must be sent to any person under this section may be
(a) sent by prepaid mail that provides the sender with an acknowledgement of receipt;
(b) personally served on the person; or
(c) sent in any manner set out in the regulations.
Value of certain forfeited vehicles is debt due
242.3(33) Where a motor vehicle forfeited under subsection (21) is not relinquished to the Crown or the value of the vehicle has decreased since it became liable to forfeiture, the Minister of Justice may recover from the vehicle's owner, as a debt due to the Crown,
(a) in the case of a vehicle that is not relinquished, the value of the vehicle at the time it became liable to forfeiture, as determined by the designated person in accordance with the regulations; or
(b) in the case of a decrease in value, the amount of the decrease, as determined by the designated person in accordance with the regulations.
242.3(34) The designated person may issue a certificate showing
(a) the name and address of the motor vehicle owner who is liable to pay the debt;
(b) the amount of the debt; and
(c) the designated person's address for service;
and the certificate is evidence of the amount of the debt due to the Crown by the motor vehicle owner at the time the certificate is issued.
242.3(35) A certificate issued under this section may be filed in the Court of Queen's Bench, and when it is filed,
(a) the obligation to pay the amount certified is enforceable as if it were a judgment of the court in favour of the Crown; and
(b) the certificate is deemed for the purposes of Part XIV of The Court of Queen's Bench Act to be an order of the court
(i) pronounced on the day the certificate is filed, and
(ii) on which post-judgment interest is payable under that Part.
Insurance proceeds for vehicle damage
242.3(36) If the motor vehicle is damaged during the commission of the offence giving rise to liability to forfeiture, or at any time between the commission of the offence and being relinquished, the insurance company must pay the insurance proceeds to the Minister of Finance, if
(a) the designated person has sent it a copy of the financing statement registered under subsection (8); and
(b) the vehicle is written off or the insurance proceeds will not, for any reason, be used for the vehicle's repair.
Insurance proceeds to be held until vehicle forfeited or is no longer liable to forfeiture
242.3(37) The Minister of Finance shall hold the insurance proceeds until the motor vehicle is forfeited or is no longer liable to forfeiture and,
(a) if the vehicle is forfeited,
(i) shall pay the proceeds in order of priority to secured creditors who registered security interests against the vehicle before the financing statement was registered under subsection (8), and
(ii) credit the balance, if any, to the vehicle owner's debt to the Crown; or
(b) if the vehicle is no longer liable to forfeiture,
(i) shall pay the proceeds to vehicle's owner, or
(ii) if there is a dispute as to who is entitled to the proceeds, shall pay them into the Court of Queen's Bench.
242.3(38) When a motor vehicle to which subsection (36) applies is to be repaired, the insurance company must ensure that the insurance proceeds are paid to the repairer on account of the repairs.
Crown may seize vehicle if it is not relinquished
242.3(39) If the motor vehicle is not relinquished under subsection (25), a person authorized by the Minister of Justice may, without notice or legal process, take possession of the vehicle from any person on behalf of the Crown. For this purpose, the person may enter upon the land where the motor vehicle is located and do such things and take such action as he or she considers necessary to take possession of it.
Personal information about alleged offender may be disclosed
242.3(40) The government may, for the purpose of informing a motor vehicle owner about the circumstances of the vehicle's liability to forfeiture, disclose personal information about the alleged offender in an owner's notice of forfeiture and about the convicted person in a notice to relinquish a motor vehicle.
Sending confirmation statement
242.3(41) Instead of sending a copy of a registered financing statement to a motor vehicle owner, secured party or insurance company under subsection (9), (11) or (36), the designated person may send the owner, party or company a copy of a statement, issued by the Personal Property Registry, confirming registration of the financing statement.
242.3(42) The Lieutenant Governor in Council may make regulations
(a) respecting notices of forfeiture and other notices under this section;
(b) respecting the manner of giving or sending notices and other documents under this section;
(c) prescribing fees for the purpose of clause (12)(b);
(d) for the purpose of subsections (15) and (33), respecting the determination of the value of motor vehicles;
(e) respecting the deposit of money or security for money under subsection (15), including the disposition of interest earned on deposits;
(f) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this section.
S.M. 2001, c. 29, s. 7; S.M. 2004, c. 11, s. 7; S.M. 2005, c. 8, s. 17; S.M. 2005, c. 31, s. 4; S.M. 2008, c. 5, s. 2.
SEIZURE AND IMPOUNDMENT OF VEHICLES INVOLVED IN RACING
242.4(1) In this section, "designated person" means a person designated by the Minister of Justice for the purpose of this section.
Seizure and impoundment of certain vehicles
242.4(2) Subject to subsection (4), a peace officer may seize a motor vehicle and impound it for 48 hours if the officer has reason to believe that the vehicle is being or has been driven on a highway in a race.
Factors peace officer may consider
242.4(3) In deciding, for the purposes of subsection (2), whether two or more motor vehicles are being or have been driven in a race, a peace officer may take into consideration the manner in which the vehicles are or were driven and the actions or comments of the drivers and any other participants, including, but not limited to, any of the following factors:
(a) the operation of the vehicles at high speed;
(b) whether there was sudden or rapid acceleration of the vehicles;
(c) whether the acceleration of the vehicles occurred at a location that is known to the peace officer as a location for racing;
(d) any communication between the drivers or the passengers of the vehicles, by action, gesture or word, of an agreement or challenge to race;
(e) any evidence of planning or conduct by a person that the peace officer believes indicates the person's intention to engage in a contest of speed;
(f) any evidence of a bet or wager;
(g) whether the driver or any of the passengers of one involved vehicle know the driver or any of the passengers of another involved vehicle.
Motor vehicle released for safety, undue hardship
242.4(4) Where a peace officer is satisfied that the seizure and impoundment of a motor vehicle under subsection (2) would jeopardize the safety of, or cause undue hardship to, any person, or is, in the opinion of the officer, not practicable in the circumstances, the peace officer may delay taking custody of the motor vehicle, in which case the peace officer may permit the motor vehicle to be driven to a location specified by the peace officer, where any peace officer may take custody of it.
Application for order to seize and impound
242.4(5) Where under subsection (4) a peace officer permits a motor vehicle to be driven to a specified location and the vehicle is not impounded at that location, a peace officer may make application to a justice for an order to seize the vehicle and impound it in accordance with this section, with necessary modifications.
242.4(6) A peace officer who is satisfied that a motor vehicle seized under subsection (2) had been stolen may release the vehicle to the owner, or a person authorized by the owner to take possession of it.
242.4(7) Where a motor vehicle has been seized and impounded, the peace officer shall
(a) complete a notice of seizure setting out
(i) the name and address of the driver, and of the owner if the driver is not the owner and discloses the name and address of the owner,
(ii) the year, make and serial number of the motor vehicle,
(iii) the date and time of the seizure and the date and time the vehicle may be released from impoundment,
(iv) the place where the vehicle is to be impounded, and
(v) the particulars of the officer's reasons to believe that the vehicle was driven in a race;
(b) if the driver is not, or does not appear to be, the owner of the motor vehicle, request that the driver disclose the name and address of the owner;
(c) give the driver a copy of the notice;
(d) cause a copy of the notice to be given to the owner;
(e) cause a copy of the notice to be given to the garage keeper who stores the motor vehicle; and
(f) retain a copy of the notice.
Costs relating to impoundment are lien on vehicle
242.4(8) A motor vehicle that is seized and impounded under this section shall be stored where the peace officer directs, and the following amounts are a lien on the impounded vehicle that may be enforced in the manner provided in The Garage Keepers Act:
(a) costs and charges prescribed by a regulation made under subsection 319(1);
(b) expenditures for searches, registrations and other charges under The Personal Property Security Act that are reasonably necessary for the garage keeper to comply with the requirements of The Garage Keepers Act.
Release of vehicle after impoundment period
242.4(9) Unless otherwise required by this Act, and subject to subsection (8) (lien), a motor vehicle is to be released to its owner or a person authorized by the owner after the period of impoundment expires.
No removal of impounded vehicle except as authorized
242.4(10) No person shall remove or release or permit the removal or release of a motor vehicle that is impounded under this section from the place of impoundment unless one of the following provisions applies to the vehicle:
(a) subsection (6) (stolen vehicle);
(b) subsection (9) (expiry of impoundment period).
Officer may direct movement of vehicle
242.4(11) A peace officer may direct that an impounded motor vehicle be moved for the purpose of impounding it at another location.
242.4(12) A motor vehicle that is subject to a lien under this section shall remain impounded until the amount of the lien is paid or the vehicle is disposed of in accordance with this section and the regulations.
Disposal of impounded vehicle by garage keeper
242.4(13) Despite subsection (12), a garage keeper who stores a motor vehicle that is impounded under this section may, on the expiry of the period of impoundment and with the approval of the designated person, dispose of it, by sale or otherwise, after delivering the number plates from the vehicle to the designated person and filing with the designated person
(a) a statutory declaration of the garage keeper declaring that the amount of his or her lien on the motor vehicle exceeds his or her estimate of its value;
(b) a certificate issued under The Personal Property Security Act showing that the serial number of the motor vehicle is not identified as an item of collateral in the personal property registry; and
(c) a copy of the notice of seizure.
Transfer of ownership to garage keeper
242.4(14) Where under subsection (13) the designated person approves the disposal of a motor vehicle by a garage keeper, the designated person shall complete a transfer of vehicle ownership, in a form that the Minister of Justice may prescribe, from the owner of the motor vehicle to the garage keeper.
Personal property in motor vehicle
242.4(15) Subject to subsection 242(5) of this Act and subsection 54(3) of The Off-Road Vehicles Act, personal property present in or on a motor vehicle which has been seized and 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.
242.4(16) The owner of a motor vehicle seized under this section may recover any lien costs that he or she has paid from the person who was the driver at the time of the seizure.
UNLAWFULLY PARKED VEHICLES
Moving of vehicle unlawfully parked
243(1) Where a peace officer or any person duly authorized for the purpose by the traffic authority has reasonable and probable cause for believing that a vehicle is standing, or is parked,
(a) in violation of subsection 90(1), (3) or (9), section 93 or 230, or of any rule made under any of those provisions, or in violation of section 122, 123 or 222; or
(b) in a position that causes it to interfere with removal of snow from a highway by a person authorized to do so by the traffic authority; or
(c) in a position that causes it to interfere with fire fighting;
he may move the vehicle or cause it to be moved, or may require the driver or person in charge of the vehicle to move it to a position determined by the peace officer or other authorized person.
Removal of parked vehicle, etc.
243(2) Where a peace officer has reasonable and probable cause to believe that an unattended vehicle is
(a) in violation of subsection 90(1), (3) or (9), section 93 or 230, or of any rule made under any of those provisions, or in violation of section 122, 123 or 222; or
(b) apparently abandoned on or near a highway; or
(c) a motor vehicle on a highway without the number plate or plates required to be displayed on it under The Drivers and Vehicles Act or the regulations under that Act;
he or she may take the vehicle into his custody and cause it to be taken to, and stored in, a suitable place.
243(3) Costs and charges incurred in moving or storing a vehicle or both, under subsections (1) and (2) are a lien on the vehicle that may be enforced under The Garage Keepers Act by the person who moved or stored the vehicle at the request of the peace officer or other authorized person.
S.M. 1997, c. 37, s. 24; S.M. 2005, c. 37, Sch. B, s. 49.
PROCEDURE
244 A justice of the peace may hear, try, determine, and adjudge prosecutions, charges, matters, and proceedings in cases arising under this Act.
Limitation on prosecution for offence
245 Subject as herein expressly otherwise provided, no proceedings against any person for an alleged offence under this Act shall be instituted more than six months after the time when the alleged offence was committed.
Oath not required on information
246 An information laid by a peace officer for an alleged offence under this Act or the regulations, or under a municipal by-law passed pursuant to this Act, is not required to be taken under oath.
Admissibility of supplemental report
247(1) The fact that a supplemental report has been made as required by section 159 is admissible in evidence solely to prove compliance with that section, and the supplemental report or any part thereof or any statement contained therein, is not admissible in evidence in any trial, civil or criminal, arising out of the accident in respect of which the supplemental report was made.
247(2) In a prosecution for violation of section 155, 156 or 159, a certificate purporting to be signed by the registrar certifying that any report required under any of those sections has or has not been made is admissible in any action or proceeding in any court, or in any matter before a board, commission or other body as prima facie proof of the facts certified, without proof of the signature of the registrar.
247(2.1) An engraved, lithographed, printed or otherwise mechanically or electronically reproduced signature or facsimile signature of the registrar is a sufficient authentication of a certificate, whether or not the signature was on the document that becomes the certificate before the facts were indicated on that document.
Place of offence when report not made
247(3) In a prosecution for failure to make a report required by section 155, 156 or 159, in respect of an accident, the place where the accident occurred shall be conclusively deemed to be the place of the offence.
248 Repealed.
S.M. 1994, c. 4, s. 14; S.M. 1995, c. 33, s. 10; S.M. 2001, c. 7, s. 22.
249 A fine or penalty imposed by this Act enures to the benefit of the municipality in which the offence is committed if the prosecution is instituted by, or under the authority of, the municipality, or by officers appointed thereby; and in all other cases the fine or penalty enures to the benefit of Her Majesty in right of the province, and shall be transmitted by the convicting justice to the Minister of Finance.
Description of offence under subsections 95(3) and 188(2)
250(1) In describing an offence under subsection 95(3) or 188(2), it is sufficient to charge an accused person with driving carelessly, and the judge or justice may receive evidence for the prosecution showing what acts or circumstances constitute the offence charged; and the conviction of the judge or justice is sufficient if it sets forth that the accused did drive carelessly without setting forth the specific acts or circumstances that constituted the offence.
Description of speeding offence
250(2) In describing an offence under subsection 95(1) or section 96 or under subsection 98(5) or (7), it is sufficient to charge an accused person with exceeding the speed limit; and the judge or justice may receive evidence for the prosecution showing what acts or circumstances constituted the offence charged; and the conviction by the judge or justice is sufficient if it sets forth that the accused did exceed the speed limit without setting forth the specific acts or circumstances that constituted the offence.
Description of offence under subsection 95(3)
250(3) In describing an offence under subsection 95(3), it is sufficient to charge an accused with driving imprudently, and the judge or justice may receive evidence for the prosecution showing what acts or circumstances constitute the offence charged; and the conviction of the judge or justice is sufficient if it sets forth that the accused did drive imprudently without setting forth the specific acts or circumstances that constituted the offence.
251 Repealed.
S.M. 1991-92, c. 25, s. 55.
252 Where a penalty is provided in this Act for a first, second, third or subsequent offence, the words "first", "second", "third" or "subsequent" relate only to offences committed in the same period of 36 months; but this section does not apply to an offence under section 213 or, for the purpose of determining the length of a period of suspension or disqualification under subsection 264(1.1) or (6.1), to the offences referred to in subsection 264(1).
S.M. 2001, c. 29, s. 8; S.M. 2005, c. 31, s. 5.
Proceedings where previous convictions
253 The proceeding upon an information for an offence against any provision of this Act, in a case where a previous conviction or previous convictions are charged, shall be as follows:
(a) The judge or justice shall, in the first instance, inquire concerning the subsequent offence, and if the accused is found guilty thereof he shall then be asked whether he was so previously convicted as alleged in the information, and if he answers that he was so previously convicted he shall be sentenced accordingly; but if he denies that he was so previously convicted, or does not answer the question, the judge or justice shall then inquire concerning the previous conviction or convictions.
(b) A certificate purporting to be under the hand of the convicting judge or justice, or of the Registrar of the Court of Queen's Bench or a deputy registrar of the Court of Queen's Bench to whose office a conviction has been returned, or the registrar, is admissible in evidence, without proof of the signature or official character of the person signing it or of the identity of the person charged with the person named in the certificate, if the name is the same, as prima facie proof of the previous conviction or convictions and of all the facts set forth in the certificate.
(c) In the event of a conviction for any second or subsequent offence becoming void or defective after the making thereof, by reason of any previous convictions being set aside, quashed, or otherwise rendered void, a judge of the court or the justice by whom the second or subsequent conviction was made shall summon the person convicted to appear at a time and place to be named, and shall thereupon, upon proof of the due service of the summons, if the person fails to appear, or on his appearance, amend the second or subsequent conviction, and adjudge such penalty or punishment as might have been adjudged had the previous conviction never existed; and the amended conviction shall thereupon be held valid to all intents and purposes as if it had been made in the first instance.
254(1) In any prosecution for an offence against this Act other than an offence under section 68, 71, 86 or 317 if the judge or justice is satisfied from the evidence that the offence charged occurred through accident or under circumstances not wholly attributable to the fault of the accused, the judge or justice may, notwithstanding anything in this Act, instead of imposing the penalty in this Act provided for the offence,
(a) where a minimum fine is prescribed, impose a fine that is less than the minimum;
(b) reprimand the accused;
(c) suspend the sentence; or
(d) grant a conditional or absolute discharge.
Reduction of penalty in certain cases
254(2) In any prosecution under this Act, other than under section 71 or 86, in respect of the operation of a truck, commercial truck, or public service vehicle for a weight in excess of the gross weight specified thereunder, if the judge or justice is satisfied that the weight is not in excess of the tolerance specified in regulations by reason of circumstances not wholly attributable to the accused, the judge or justice may grant a conditional or absolute discharge to the accused and in the case of a prosecution under section 71, where the material being hauled consists of clay or mud obtained from an excavation of a highway or building, and no scales are available at the location of loading or within a reasonably close distance from the location of loading, if the judge or justice is satisfied from the evidence that the offence charged occurred under circumstances not wholly attributable to the fault of the accused, he may
(a) where a minimum fine is prescribed, impose a fine that is less than the minimum;
(b) reprimand the accused;
(c) suspend the sentence; or
(d) grant a conditional or absolute discharge.
254(3) Where a disposition is made under subsection (1) or (2), and the proceedings are not recorded by a person authorized to record or transcribe evidence and proceedings in writing or by a device authorized under section 27 of The Manitoba Evidence Act, the judge or justice shall record the reasons for the disposition on the information or offence notice, or on a page that shall then be attached to the information or offence notice, and signed by the judge or justice.
S.M. 1985-86, c. 13, s. 4; S.M. 1989-90, c. 56, s. 34; S.M. 2004, c. 30, s. 29.
EVIDENCE FROM MACHINES
Evidence from speed-timing devices
255(1) Where
(a) any person is charged with committing an offence under this Act by reason of driving a motor vehicle on a highway at any time at a speed that, at that time and on that highway, was unlawful under this Act;
(b) the speed at which the person was driving the motor vehicle, at the time and place charged, was determined by speed-timing device; and
(c) evidence of that speed is tendered to the judge or justice by way of the production of a recording made by the speed-timing device, or by the oral evidence of the peace officer operating the speed-timing device at the time the alleged offence was committed;
if the speed-timing device is of a type that has been approved by the Minister of Justice as being suitable for determining the speed at which motor vehicles on the highway are travelling, and the judge or justice is satisfied that it was in good working order at the time that the recording was made, he may accept the recording or the testimony of the peace officer as evidence without requiring expert evidence respecting the functions and operation of the speed-timing device or of its efficiency for the purpose of determining the speed at which motor vehicles are being driven on highways.
Evidence of particulars of registration
255(2) A book or card, or other record or document, purporting to be issued by the registrar or caused to be prepared by, or at the request of, or under the authority of, the registrar,
(a) on which there is printed a notice stating that the book, card, record, or document is issued by or under the authority of the registrar; and
(b) containing all or some of the particulars furnished to the registrar on registration with him of one or more motor vehicles or trailers;
is admissible in evidence as prima facie proof of the details and particulars set forth therein respecting any motor vehicle or trailer therein designated or described and of the registration thereof.
Approval of speed-timing devices
255(3) For the purposes of subsection (1), the Minister of Justice may, by regulation, approve types of speed-timing devices and prescribing forms for recording and reporting the accuracy of such timing devices.
255(4) The Minister of Justice may appoint one or more qualified persons as testers of various types of speed timing devices approved under subsection (3); and a certificate certifying as to the accuracy of a speed timing device of a type approved under subsection (3) issued by a person so appointed as a tester of that type of speed timing device is admissible as prima facie proof of the accuracy of the speed timing device without proof of his signature or appointment.
255(5) Repealed, S.M. 2005, c. 37, Sch. B, s. 50.
Definition of "speed-timing device"
255(6) In this section "speed-timing device" does not include a speedometer or image capturing enforcement system.
S.M. 1989-90, c. 55, s. 10; S.M. 1993, c. 48, s. 68; S.M. 2002, c. 1, s. 6; S.M. 2005, c. 37, Sch. B, s. 50.
256 In any proceeding under this Act a print from a photographic film or electronic medium of any record or document certified by the registrar to be a true copy of the original is admissible in evidence in all cases, and for all purposes, in or for which the original of the record or document would have been admissible.
S.M. 1989-90, c. 55, s. 11.
Certificate as to timing lines on highway
257 The Minister of Justice may appoint one or more engineers employed by the government under the member of the Executive Council responsible for the construction and maintenance of provincial highways, for the purpose of certifying the accuracy of lines painted on the surface of a roadway for the purpose of determining the speed of motor vehicles by means of aircraft; and, a certificate issued certifying as to the accuracy of such lines and issued by a person so appointed is admissible as prima facie proof of the accuracy of those lines without proof of his signature or appointment.
Use of image capturing enforcement systems
257.1(1) Municipalities, and peace officers acting on behalf of municipalities or the government, may use image capturing enforcement systems only if they are authorized to do so by the regulations and only
(a) for enforcing subsections 88(7) and (9) (red light offences), subsection 95(1) (speeding offences), clauses 134(2)(b) and (c) (railway crossing offences) and subclauses 134(6)(a)(i) and (b)(i) (railway crossing offences); and
(b) in accordance with any conditions, limitations or restrictions in the regulations about the use of such systems.
Limitations re speed limit enforcement
257.1(2) Without limiting the generality of subsection (1), when municipalities and peace officers acting on behalf of municipalities or the government use image capturing enforcement systems for speed limit enforcement, they may only use them to detect speed limit violations that occur
(a) in construction zones, playground zones and school zones; and
(b) at intersections that are controlled by traffic control lights.
Municipalities' use of surplus fine revenue
257.1(3) If a municipality's fine revenue from convictions based on evi