R. v. McCluskey

R. v. McCluskey

Section 127(2) of the Motor Vehicle Act, read literally, is overbroad and infringes s.7 of the Charter because it criminalizes all pedestrian presence on a highway adjacent to a sidewalk regardless of safety risk; the proper remedy is to read down s.127(2) to prohibit only pedestrian conduct that endangers, hinders, interferes with or obstructs the safety of pedestrians or vehicular traffic; applying the read down, there was no evidence McCluskey endangered or obstructed safety and he is acquitted.

Citation
2005 NSPC 2
Parties
Prosecution: Her Majesty The Queen; Accused: Mark Stephen McCluskey
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
4 February 2005
Procedural Posture
Provincial Court Criminal (summary Offence Under Motor Vehicle Act) / Trial Decision (constitutional Challenge Heard; Judgment)
Outcome
Section 127(2) read down as conformable with the Charter; accused acquitted
Legal Topics
Charter S.7 Overbreadth, Charter S.15 Equality, Pedestrian Regulation (motor Vehicle Act S.127(2)), Reading Down Remedy, Targeted Policing
Source Language
English
Constitutional Law Criminal Law Traffic/regulatory Law Charter S.7 Overbreadth Charter S.15 Equality Pedestrian Regulation (motor Vehicle Act S.127(2)) Reading Down Remedy Targeted Policing

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Parties

Her Majesty The Queen

Prosecution

Mark Stephen McCluskey

Accused

Procedural Posture

Provincial Court Criminal (summary Offence Under Motor Vehicle Act) / Trial Decision (constitutional Challenge Heard; Judgment)

Legal Issues

  1. 1 Whether s.127(2) of the Motor Vehicle Act is overbroad and infringes s.7 of the Charter
  2. 2 Whether enforcement policy targeting squeegee/streets youth constitutes discrimination contrary to s.15 of the Charter
  3. 3 Proper remedial response where statute is overbroad (reading down v. striking down)

Ratio Decidendi

Section 127(2) of the Motor Vehicle Act, read literally, is overbroad and infringes s.7 of the Charter because it criminalizes all pedestrian presence on a highway adjacent to a sidewalk regardless of safety risk; the proper remedy is to read down s.127(2) to prohibit only pedestrian conduct that endangers, hinders, interferes with or obstructs the safety of pedestrians or vehicular traffic; applying the read down, there was no evidence McCluskey endangered or obstructed safety and he is acquitted.

Court Disposition

Section 127(2) read down as conformable with the Charter; accused acquitted

Orders

  • Section 127(2) of the Motor Vehicle Act is to be read down to: "Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent highway in a manner that endangers, hinders, interferes or obstructs the safety of other pedestrians or vehicular traffic."
  • Accused Mark Stephen McCluskey is acquitted of the charge arising May 20, 2002.