Mr. Dean Christianson, the operator of a City of Saskatoon Transit Bus, was convicted in traffic safety court of failing to wear a seat belt, contrary to s. 248(1) of The Traffic Safety Act, S.S. 2004, c. T‑18.1. He appealed his conviction on the grounds that he was exempt from having to wear a seat belt.
Section 248(1) of The Traffic Safety Act, provides:
Rules re seat belts
248(1) If a motor vehicle being driven on a highway is equipped with a seat‑belt assembly in a seating position that is occupied by the driver, the driver shall wear the complete seat‑belt assembly properly adjusted and securely fastened.
The same provision appeared in s. 77 of The Highway Traffic Act, S.S. 1986, c. H‑3.1, as rep. by The Traffic Safety Act, supra. The Seat‑belt Exemption Regulations, 2002, R.R.S., c. H‑3.1 Reg 21, exempted certain persons from the obligation under s. 77 to wear a seat belt. The Highway Traffic Act has been repealed and replaced by The Traffic Safety Act.
The regulations now apply to s. 248 of The Traffic Safety Act. Subsection 2(2)(f) of the regulations provides:
(2) The following persons are exempt from the requirement set out in section 77 of The Highway Traffic Act to wear a seat‑belt:
(f) the operator of a motor vehicle registered in Class PC if:
(i) the operator is operating the motor vehicle on a regularly scheduled route and is travelling at speeds under 40 kilometres per hour; or
(ii) the operator has reason to believe that his or her safety may be compromised.
After Mr. Christianson was pulled over by police for speeding in a public bus that he operated, he was issued a ticket for speeding and not wearing his seatbelt.
When he went to contest the tickets in court, he stated that he felt his safety was comprimised at the time, because he had been threatened by three (3) teenagers.
Police stated in court that he did not raise that concern at the time and the court hearing it as evidence from the bus driver at court, drew an adverse inference from that lack of disclosure at the time and he was convicted of speeding and not wearing his seatbelt.
The bus driver did not have to disclose anything and could rely on his rights under section 7 of the Charter and the jurisprudence already established through different court decisions.
A person being investigated in relation to the alleged commission of an offence under a provincial statute such as The Traffic Safety Act faces potential state sanction in the form of a fine, or imprisonment in default of payment of a fine. The rights described in s. 7 apply to such a person.
” The Supreme Court of Canada discussed the right to remain silent, which flows from s. 7, in R. v. Crawford; R. v. Creighton, 1995 CanLII 138 (SCC),  1 S.C.R. 858. At paras. 21 and 22, Justice Sopinka said:
The right to silence embraces a number of distinct rights which are included in s. 7 of the Charter as principles of fundamental justice. Two aspects of the right to silence are pertinent to the discussion of the issues in this appeal, that is, the right to pre‑trial silence and silence at trial. …
It is a corollary of the right to choose to remain silent during the pre‑trial investigation that, if exercised, this fact is not to be used against the accused at a subsequent trial on a charge arising out of the investigation and no inference is to be drawn against an accused because he or she exercised the right. See R. v. Chambers, 1990 CanLII 47 (SCC),  2 S.C.R. 1293 …. [Emphasis added] “.
During his initial trial, Mr. Christianson noted all of the assaults that had taken place against co-workers and that he had been spit upon (which is an assault) and that he never knew of all the strangers that boarded his bus, who may assault him at anytime.
In a decision recently published on CanLII (R v Christianson, 2011 SKQB 390 (CanLII)), Queen’s Bench Justice Grant Currie overturned a previous conviction against this Saskatoon bus driver after citing how the lower court erred in law.
In traffic court, he argued that he should not have to, under a provision that exempts operators of Class PC motor vehicles (which includes buses and taxis) if they believe their safety may be compromised.
It is well known that most taxi driver’s will not wear their seatbelts, as passengers that enter their cabs may while use the seatbelt to wrap around the taxi driver’s neck and strangle them.
Bus driver’s everywhere have an extremely difficult job, given the fact that everyone uses public transit in every condition imaginable. It is not unusual during holidays to see advertisements warning people not to drink and drive and instead, if they are in no condition to drive, to take a taxi or use public transit.
This is what Justice Grant Currie wrote in his award:
In drawing this analogy the traffic safety court justice misdirected himself as to the law. Subsection 2(2)(f)(ii) provides that an exemption applies where the operator has reason to believe that his or her safety may be compromised. The traffic safety court justice, however, applied the test of whether Mr. Christianson had reason to believe that his safety was compromised. The traffic safety court justice said at pages 32‑33 of the trial transcript:
… This court needs to determine if Dean Christianson had reason to believe, given the definitions and evidence presented to this court, that his safety was compromised. Did the driver establish the fact that his safety was compromised, or at the very least he had reason to believe on that day, at that time, his safety was compromised. The testimony presented to this court … all show a lack of evidence to support the argument that Dean Christianson had reason to believe his safety was compromised. … Regardless, the testimony presented and the actions of the driver at the time of the incident, do not support a conclusion that under the circumstances present at the time of the offense, the driver had reason to believe his safety was compromised. … [Emphasis added]
This application of the wrong test led to the traffic safety court justice using an inappropriate analogy. An appropriate analogy was provided by Mr. Christianson on this appeal. He posited a homeowner who routinely locks the doors to the home when leaving it. The homeowner, he says, perceives no specific compromise of the home’s security, such as a burglar lurking near the house. Still, the homeowner knows that other homeowners have had their homes burgled when they left their doors unlocked. Knowledge of the experience of other homeowners leads to the reasonable perception of an ongoing safety concern and, as a consequence, taking the precautionary measure of locking the doors.
The traffic safety court justice characterized Mr. Christianson’s decision not to wear a seat belt as an unreasonable overreaction to the experiences of others. I conclude, though, that Mr. Christianson’s decision was a reasonable reaction to the experiences of himself and of others. This is the case whether or not his experiences include his having been threatened by passengers. His experiences, and those of others that had come to his attention in the course of working in his industry, gave him reason to believe that his safety may be compromised by wearing a seat belt. Not wearing a seat belt would not entirely eliminate the compromise of his safety, but it would reduce the extent to which Mr. Christianson’s safety was compromised. He would be able to defend himself if he were attacked – something that he had reason to believe sometimes happens to transit operators.
The conclusion of Justice Grant Currie :
For these reasons I conclude that the traffic safety court justice erred in law in his determination. Mr. Christianson did have reason to believe that his safety may be compromised.
Mr. Christianson’s appeal with respect to the seat belt offence is allowed, the conviction is set aside and a verdict of not guilty is substituted therefor.
It is unclear as to whether or not the Crown will appeal Justice Currie’s decision in this matter.