R v Mitchell, 2021 ABQB 924

Court of Queen’s Bench of Alberta Citation: R v Mitchell, 2021 ABQB 924 Date: 20211117 Docket: 181536756S1 Registry: Wetaskiwin Between: Joshua Mitchell Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Decision of

Summary Conviction Appeal of the Honourable Mr. Justice M. Kraus _______________________________________________________ I. Introduction [ 1 ] Mr. Mitchell appeals from his conviction on three charges under the Traffic Safety Act , RSA 2000, c T-6 , at a trial in Provincial Court in Breton, Alberta on November 14, 2018. [ 2 ] The charges and convictions are under the following three sections of the Traffic Safety Act :

Section 51: Except as otherwise permitted under this Act, a person shall not do any of the following:

(

b) drive a motor vehicle on a highway unless that motor vehicle is of a class or type that is authorized to be operated under theclass of operator’s licence held by that person; 2. Section 52 (1): Except as otherwise permitted under this Act, a person shall not do any of the following: (

a) operate or park a motor vehicle or trailer on a highway unless there is a subsisting certificate of registration issued in respectof that vehicle; 3. Section 54(1): Except as otherwise permitted under this Act, a person shall not do any of the following: (

a) drive a motor vehicle on a highway unless the motor vehicle is an insured motor vehicle; [3] More specifically, the trial judge found that Mr. Mitchell cannot drive a rock truck on a highway with a Class 5 graduatedGDL licence, Mr. Mitchell cannot operate a rock truck on a highway without a motor vehicle certificate of registration, and Mr. Mitchellcannot drive a rock truck on a highway without the rock truck being insured as a motor vehicle. Further, the trial judge held that Mr.Mitchell did not establish a defence of due diligence. [4] For the reasons that follow, the appeal is dismissed. II.

Standard of Review [5] The standard of review is set out by the Supreme Court of Canada in Housen v Nikolaisen, 2002 SCC 33 (paras 7 – 37): • A question of law (paras 8-9) and an inquiry into the correct legal test or the

interpretation of a legal standard (para 30 and 32) isreviewed on a standard of correctness. • The standard of review for findings of fact is palpable and overriding error (para 10).

The standard of review for weighing factsand reaching factual conclusions made by the trial judge is palpable and overriding error (para 25). • Questions of mixed fact and law are reviewed on a standard of palpable and overring error such as applying a legal standard tofactual findings (para 26 and 36) and drawing an inference (paras 22 -23 and 32), unless there is an extricable error of law (para 37). [6] As cited by the Crown, the standard of review is set out by the Court of Appeal in R v Hilton, 2016 ABCA 397 at paras 14-17: Particular attention must be paid to the standard of review when an appellate court sets aside a trial decision because of errors in the waythe evidence was analyzed.

It is not the role of appellate courts to reweigh the evidence and retry the case. Trial judges have considerable leeway in theirappreciation of the evidence and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonabledoubt: R. v Biniaris, 2000 SCC 15 at paras. 24, 37, [2000] 1 SCR 381.

Findings of fact and assessments of credibility by a trial judge areentitled to great deference, and should only be interfered with on appeal if they are unreasonable, or in other words if they displaypalpable and overriding error: F.H. v McDougall, 2008 SCC 53 at paras. 55, 72, [2008] 3 SCR 41; R. v W. (R.), (SCC),[1992] 2 SCR 122 at pp. 131-2; Housen v Nikolaisen, 2002 SCC 33 at paras. 10-18, [2002] 2 SCR 235. A deferential standard of review, however, does not mean that trial judges are immune from review.

As stated in H.L. v Canada(Attorney General), 2005 SCC 25at para. 75, [2005] 1 SCR 401 “. . . appellate courts not only may -- but must -- set aside all palpableand overriding errors of fact shown to have been made at trial”. The same point was made in a criminal context in R. v Regan, 2002SCC 12at para. 118, [2002] 1 SCR 297: 118 This does not mean, however, that the trial judge is completely insulated from review. It is settled law that where the “trial judgemade some palpable and overriding error which affected his assessment of the facts”, the decision based on these facts may be reversed(Kathy K, at p. 808).

In the present case, I find that the trial judge made palpable and overriding factual errors which set his assessmentof the facts askew. . . . To the same effect is R. v C.L.Y., 2008 SCC 2 at para. 19, [2008] 1 SCR 5: “This Court has said a material misapprehension of theevidence may justify appellate intervention”. In R. v Lohrer, 2004 SCC 80 at para. 2, [2004] 3 SCR 732 the Supreme Court of Canada cautioned against intervention unless thefollowing conditions were met: Morrissey, it should be emphasized, describes a stringent standard.

The misapprehension of the evidence must go to the substance ratherthan to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

One of the legitimate functions of appellate courts is to ensure that miscarriages of justice do not occur by reason of palpably flawedevidentiary findings, but only when those findings are essential to the ultimate decision of the trial judge. [7] As cited with approval in Way-Patenaude v Alberta (Human Rights Tribunal), 2021 ABQB 302 at para 10, the FederalCourt of Appeal describes the meaning of “palpable” and “overriding” in Mahjoub v Canada (Citizenship and Immigration), 2017 FCA157 at paras 62-64 as follows:

“Palpable" means an error that is obvious. Many things can qualify as "palpable." Examples include obvious illogic in the reasons (suchas factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with thedoctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete ornear-complete disregard of evidence. But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding.

"Overriding" means an error that affects the outcome of the case. It may be that a particular fact should not have been found becausethere is no evidence to support it.

If this palpably wrong fact is excluded but the outcome stands without it, the error is not "overriding."The judgment of the first-instance court remains in place. [8] See also Salomon v Matte-Thompson, 2019 SCC 14, [2019] 1 SCR 729, at para 33: Where the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious errorin the trial decision that is determinative of the outcome of the case (Benhaim, at para. 38, quoting South Yukon Forest Corp. v.R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46; see also H.L. v.

Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, atparas. 56 and 69-70). Morissette J.A. explained this metaphorically as follows in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 :[translation] “. . . a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it isimpossible to confuse these last two notions” (quoted in Benhaim, at para. 39).

The fact that an alternative factual finding could bereached based on a different ascription of weight does not mean that a palpable and overriding error has been made (Nelson (City) v.Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 38). III. Facts [9] The trial judge heard and accepted the evidence of Community Peace Officer Sahl and Mr. Mitchell (except with respect to aruling on hearsay which I will discuss later). The Defence attempted to qualify Mr.

McDowell as an expert in industrial construction buthis qualifications were not accepted and his evidence was not heard. [10] On June 6, 2018, at about 9:55 p.m., the Community Peace Officer observed a large rock truck travelling southbound on rangeroad 55 toward township road 454, near Buck Lake, Alberta. He observed no signs that the rock truck was being operated in a workzone or construction zone. The Community Peace Officer clocked the speed of the rock truck at 42 km/h in an 80km/h zone. He observedthat there was no licence plate on the rock truck. He therefore conducted a traffic stop.

He approached the driver and requested a driver’slicence, registration, and insurance. [11] The driver was Mr. Mitchell. Mr. Mitchell produced a Class 5 GDL graduated driver’s licence issued by the Province ofAlberta. No registration and insurance were produced by Mr.

Mitchell to the Community Peace Officer for the rock truck. [12] In addition, at trial, Community Peace Officer Sahl gave the following evidence; • at the traffic stop, he observed that the rock truck required a Class 3 licence because the rock truck had 3 axles. • there were no signs or other indications of a construction zone visible from the highway or anywhere around the traffic stop. • the Certificate of Registration for the rock truck did not allow for use on a highway. • he was not sure if the rock truck could be insured for use on a highway, he has never seen such insurance and, in any event, nosuch insurance was provided. [13] Further, at trial, Mr.

Mitchell gave the following evidence; • he was an employee of a construction company and admitted that he was driving the rock truck on the highway and moving therock truck from one location to another in accordance with the directions from his employer. • he described the rock truck as an earth moving vehicle with 6 wheels and 4 axles – 2 axles in the front and 2 axles in the back. • he said that he thought what he was doing was legal or he would not be driving the rock truck if he knew it was not legal.

Mr.Mitchell said that his supervisor told him that he thought it was legal to drive the rock truck (Transcript p 29, lines 21-24).

He overheardin a shop area that an officer, either a Ponoka County police officer or sheriff, said they were “good to go” (Transcript p 31, lines 20-31). • he was shown a COR (Certificate of Recognition) Certificate (Exhibit 8) at a safety meeting with his employer and understood thatthe employer had full safety insurance for the company (Transcript p 30, lines 22-24). • a copy of the employer company commercial insurance, Certificate of Liability Insurance, was entered as an Exhibit (Exhibit 9). • he admitted to having a Class 5 GDL licence. He said he did not know that he required a Class 3 licence.

No inquiries were madeby Mr. Mitchell about whether he required a Class 3 licence (Transcript p 33, lines 26 -32). But he did present his licence to hisemployer at safety training meetings (Transcript p 35, lines 7-14). • he considered the rock truck to be industrial equipment (Transcript p 32, lines 26-35). IV. Grounds of Appeal

[ 14 ] The three issues on appeal raised in Mr. Mitchell’s Memorandum of Appeal are as follows: 1. Can Mr. Mitchell lawfully operate the rock truck on a highway with a Class 5 Graduated Driver’s Licence? 2. Is the rock truck a motor vehicle or is the rock truck industrial equipment exempt from registration? 3. Is the rock truck validly insured? [ 15 ] In oral argument, Mr. Mitchell relies on two main grounds of appeal: 1. The trial judge erred in finding that the rock truck is a motor vehicle under s 1(

x) of the Traffic Safety Act , rather than industrial equipment designed primarily for construction under s 47 of the Operator Licensing and Vehicle Control Regulation . If the rock truck is not a motor vehicle and is industrial equipment designed primarily for construction, then the convictions with respect to operating a motor vehicle without a valid licence, registration, and insurance cannot stand. 2. The trial judge erred in finding that Mr. Mitchell did not exercise due diligence under s 161 of the Traffic Safety Act . As such he cannot be found guilty of the charges. V. Discussion A.

Is the rock truck a motor vehicle? [ 16 ] The Traffic Safety Act sets out requirements and prohibitions for the licencing, registration, and insurance of “motor vehicles”. [ 17 ] The Operator Licensing and Vehicle Control Regulation , Alta Reg 320/2002 , made under the Traffic Safety Act , contains the following provisions: 23

(1) The holder of a Class 3 operator’s licence may drive the following: ... (

b) a single motor vehicle with 3 or more axles; 45 The following are exempt from registration and the requirement to display a licence plate issued under the Act: ... (

f) self-propelled mobile equipment operated in accordance with the Commercial Vehicle Dimension and Weight Regulation (AR 315/2002 ). 47 Industrial equipment designed primarily for construction, maintenance, land clearing, ditching or other related tasks is exempt from registration and the requirement to display a licence plate issued under the Act. (emphasis added) [ 18 ] The term “motor vehicle” is defined in s1(

x) of the Traffic Safety Act as follows: (x) “motor vehicle” means (

i) a vehicle propelled by any power other than muscular power, or (ii) a moped, but does not include a bicycle, a power bicycle, an aircraft, an implement of husbandry or a motor vehicle that runs only on rails; [ 19 ]

Section 1 (mm) of the Commercial Vehicle Dimension and Weight Regulation , Alta Reg 315/2002 , and s 1(nn) of the Public Vehicle Dimensions and Weight Regulation Alta Reg 127/1998 , both made under the Traffic Safety Act , both contain the same definition of "self-propelled equipment", which reads as follows: "self-propelled equipment" means machinery or equipment that (

i) moves under its own power, (ii) is not capable of exceeding a speed of 40 kilometres per hour, and (iii) does not carry any load; [ 20 ] The term “truck” is defined in s 1 (yy) of the Commercial Vehicle Dimension and Weight Regulation , Alta Reg 315/2002 , made the Traffic Safety Act , as follows: (yy) “truck” means a motor vehicle designed and intended for the transport of goods or carrying of loads;

[21] Mr. Mitchell argues that the trial judge made an error when he found that the rock truck is a “motor vehicle” under s 1(

x) ofthe Traffic Safety Act, rather than “industrial equipment designed primarily for construction” under s 47 of the Operator Licensing andVehicle Control Regulation. [22] The issue of whether the rock truck is a motor vehicle or industrial equipment is a question of mixed fact and law and isreviewable on a standard of palpable and overring error. [23] The trial judge reviewed the definition of motor vehicle under s 1(

x) of the Traffic Safety Act. The trial judge noted that therock truck met the definition of a motor vehicle as the rock truck was a vehicle propelled by any power other than muscular power (or amoped).

Further, the rock truck did not meet an exception to being a motor vehicle because the rock truck was not a bicycle, a powerbicycle, an aircraft, an implement of husbandry, or a motor vehicle that runs only on rails (Transcript p 54, lines 5-16). [24] Based upon his findings of fact and the application of the law, the trial judge found that the rock truck met the definition ofmotor vehicle [25] The trial judge considered Mr.

Mitchell’s argument that the equipment is not self-propelled under s 1(mm) of the CommercialVehicle Dimension and Weight Regulation and s 1(nn) of the Public Vehicle Dimensions and Weight Regulation. [26] The Commercial Vehicle Dimension and Weight Safety Regulation prohibits defined types of commercial vehicles from beingoperated on a highway unless the Registrar issues a permit to authorize the vehicle to be operated on a highway.

The trial judge foundthat the rock truck cannot be self-propelled equipment under s 1(mm) because, inter alia, the definition of self-propelled means that selfpropelled equipment is not capable of travelling more than 40km/hr (Transcript p 69, lines 25-31). [27] Mr. Mitchell argues that the rock truck is industrial equipment designed primarily for construction under s 47 of the OperatorLicensing and Vehicle Control Regulation and therefore is exempt from the requirements of licencing, registration, and insurance for amotor vehicle.

He argues that the exemption remains in effect even if the rock truck is being driven on a public highway and not beingused primarily for construction because the rock truck is designed primarily for construction. [28] The trial judge considered and discussed s 47 of the Operator Licensing and Vehicle Control Regulation. The trial judgeconsidered the purpose of the legislation (Transcript p 62, lines 6-9) that construction equipment is exempted by legislation from havinglicence plates and registration when they are performing construction services but not when a truck is being driven on a highway.

Otherwise, the trial judge stated “so this truck, he could drive it down any road he wants, any time he wants, for any purpose he wants,with no registration, no insurance” because that is the “argument” of the defence (Transcript p 62, lines 16-20). [29] Further, the trial judge considered s 47 as applying to vehicles of a certain class but also for a certain purpose (Transcript p 69,lines 11- 23). The rock truck was not being operated as a construction vehicle, was not being operated on a construction site, and was noteven travelling between construction sites (Transcript p 71, lines 2-4).

As such, based upon his findings of fact, the trial judge found thatthe rock truck did not meet the definition of industrial equipment under s 47 of the Operator Licensing and Vehicle Control Regulation. [30] The trial judge stated that the Court is not the legislature. The Court’s role at this trial is not to determine by referencewhether an entire class of construction equipment is exempt from certain licencing, registration, or insurance requirements.

The Court’srole at this trial is to determine if the Crown has proven the offences that have been charged (Transcript p 71, lines 6-9). [31] In Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at para 21, the Supreme Court of Canada statedas follows: Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [32] The trial judge interpreted the meaning of “motor vehicle” harmoniously with the scheme of the Traffic Safety Act andconsidered the object and intention of the Traffic Safety Act when he reached his conclusion (Transcript p 71, lines 11 – 28). [33] In my view, the trial judge committed no reviewable error when he found that s 1(

x) of the Traffic Safety Act applies to therock truck, rather than s 47 of the Operator Licensing and Vehicle Control Regulation. [34] If I am wrong that this finding is one of mixed fact and law (reviewable on a standard of palpable and overriding error) andthat this finding is instead a finding of law based upon the selection of the correct legal test (reviewable on a standard of correctness), Ifind that the trial judge applied the correct legal test. [35] For clarity, the offence of driving the rock truck on a highway without a valid licence required the trial judge to find that therock truck had to have three or more axles such that a Class 3 licence was required.

The evidence of the Community Peace Officer wasthat the rock truck had 3 axles and the evidence of Mr. Mitchell was that the rock truck had 4 axles. Either way, the rock truck required aClass 3 licence under s 23 of the Operator Licensing and Vehicle Control Regulation. Mr. Mitchell had a Class 5 Graduated GDLlicence. [36] As a result of the rock truck being found to be a motor vehicle, there is no reviewable error made by the trial judge in findingthat Mr. Mitchell committed the offences of operating a motor vehicle without a valid licence, registration, or insurance.

B. Due Diligence [37] An offence under the Traffic Safety Act is a strict liability offence. The Crown needs to prove the actus reus beyond areasonable doubt but does not need to prove mens rea. The Defence may avoid liability by proving, on a balance of probabilities, eitherthe defence of reasonable mistake of fact or the defence of due diligence. The “reasonableness” of the Accused’s conduct is relevant toboth defences. [38] I will first discuss the defence of due diligence as this defence was raised at trial and on appeal.

For the sake of thoroughness,I will also discuss the defence of reasonable mistake of fact. [39] In The Queen v Sault Ste. Marie, (SCC), [1978] 2 SCR 1299 at 1326, the Supreme Court of Canada stated asfollows: ... Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoidthe particular event. These offences may properly be called offences of strict liability...(emphasis added) [40] Dickson J (as he was then) used the example of driving without a valid licence to illustrate the proper use of a defence of duediligence. [41] In R v McGilvery (1979), (AB KB), 19 AR 447 (DC), the Court applied Sault Ste.

Marie and concluded that a provision in the then Motor Vehicle Administration Act, SA 1975(2nd Sess), c 68, which prohibited a registered owner of anuninsured motor vehicle from allowing another person to operate it on a highway, created a strict liability offence. Subsequent authoritiesconfirm that legislation such as the Traffic Safety Act create strict liability offences: R v MacDougall, (SCC), [1982] 2SCR 605; R v Christman (1984), 1984 ABCA 296 , 56 AR 108, 29 MVR 1 (CA). [42] The defence of due diligence has been codified in the Traffic Safety Act.

Section 161 reads as follows: 161 Where a person is charged with an offence under this Act or a bylaw, the court trying the case may dismiss the charge if theperson satisfies the court that the offence could not have been avoided by the exercise of reasonable care or precaution. [43] Mr. Mitchell argues that the trial judge made an error when he found that Mr. Mitchell did not exercise due diligence. Mr.Mitchell argues that he is only expected to make reasonable inquiries and that he is entitled to a defence of due diligence because herelied upon his employer (the owner of the rock truck).

He believed he had a valid driver’s licence, valid registration, and valid insurancefor the rock truck. He argues that it is not up to him to check licence, registration, and insurance requirements. [44] With respect to the licence issue, Mr. Mitchell argues that trial judge made an error when he found that Mr. Mitchell did notexercise due diligence. Mr. Mitchell argues that he is entitled to a defence of due diligence because he believed that he needed the sameclass of operator’s licence to operate the rock truck as he did to operate farm equipment.

He had in the past seen rock trucks used byfarmers as grain trucks and he previously used a rock truck to haul manure down the road for a farmer (Transcript p 32, lines 32-35). Healso thought his employer thought he was not doing anything illegal (Transcript p 3, lines 22-24). [45] Mr. Mitchell admitted that he was operating the rock truck. He described the rock truck as having 6 wheels and 4 axles – 2axles in the front and 2 axles in the back. He said that he thought what he was doing was legal or he would not be operating the rocktruck if he knew it was not legal. He admitted to having a Class 5 GDL licence.

He said he did not know that he required a Class 3licence. He admitted in cross examination that he assumed his licence was sufficient, but he made no inquiries and did not speak to hisemployer about the required class of licence (Transcript p 33, lines 16-32; p 34, lines 7-8). [46] The evidence at trial was that he provided his driver’s licence to the safety boss when he went through safety training but hedoes not know what was done with this information about his licence (Transcript p 35, lines 7 – 37). However, there is no evidence thatMr.

Mitchell made any inquiries about whether the Class 5 GDL licence allowed him to operate the rock truck on a highway. As a result,the trial judge convicted Mr. Mitchell based upon Mr. Mitchell’s own evidence (Transcript p 70, lines 4-9). [47] With respect to the registration issue, the trial judge considered due diligence (Transcript p 70, lines 11-23). The trial judgefound that Mr. Mitchell did not act with reasonable care or precaution. Instead, the trial judge found that Mr.

Mitchell believed he didnothing wrong because he “did not believe by virtue of the information provided to him through his employer that registration orinsurance were required” (Transcript p 70, lines 18-23). The trial judge found that “that’s not due diligence, that’s a belief in a state oflaw. Ignorance of the law is not a defence” (Transcript p 70, lines 22-23. [48] In Lévis (City) v Tetrault 2006 SCC 12, [2006] 1 SCR 420, at para 22, the Supreme Court of Canada stated: This Court has firmly and consistently applied the principle that ignorance of the law is no defence.

It has given effect to this principlenot only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, (SCC), [1980] 2 S.C.R. 356; Pontes). [49] With respect to the insurance issue, Mr. Mitchell gave evidence at trial that he attended at safety training meetings (andreceived a certificate of completion for the safety program) and that “it was shown at our safety meeting that we have full insurance forour company, safety insurance” (Transcript p 30, lines 22-44; p 31, lines 3-4). However, there is no evidence that Mr.

Mitchell made anyinquiries about whether the safety insurance included insurance for operating a motor vehicle on a highway.

[ 50 ] The Certificate of Liability Insurance entered as an Exhibit at trial states that the liability insurance applies to “log harvesting, mulching, site preparation, dirt moving, lease site, construction”. The Certificate does not state that the liability insurance provides coverage for driving on a public highway. Mr. Mitchell was driving the rock truck on a public highway. [ 51 ] In addition, Mr. Mitchell said that when he was in the shop area, he overheard a safety officer state in a conversation with others that “you guys are good to go” (Transcript p 31, lines 26-31).

However, the trial judge ruled that the information from the safety officer in the overheard conversation was inadmissible for the truth of its contents on the basis of hearsay (Transcript p 31, lines 33-41; p 32, lines 12-15). Further, even if the evidence was admissible, the trial judge found that it was not clear what “good to go” meant (Transcript p 31, lines 37-41). The employer or safety officer did not give evidence at trial. [ 52 ] Whether Mr.

Mitchell has established due diligence in the circumstances is a question of mixed fact and law because it involves weighing underlying facts, making factual conclusions as a result, and drawing an inference as to whether due diligence is established. A question of mixed fact and law is reviewable on a standard of palpable and overriding error. On

summary conviction appeal, it is not the role of the

summary conviction appeal court to reweigh the evidence and retry the case. [ 53 ] In my view, the trial judge committed no error, much less a reviewable error, when he found that Mr. Mitchell did not establish a defence of due diligence. The fact that Mr. Mitchell believed that he was lawfully driving the rock truck on a highway with a valid licence, with valid registration, and with valid insurance is not evidence that the offences could not have been avoided by the exercise of reasonable care or precaution. C. Reasonable Mistake of Fact [ 54 ] Mr.

Mitchell did not raise the defence of reasonable mistake of fact either at trial or on appeal, and instead relied solely on the defence of due diligence . [ 55 ] For the sake of a complete analysis of the legal issues, both counsel were asked to provide additional written submissions on reasonable mistake of fact in this

summary conviction appeal. I will consider whether this defence can assist Mr. Mitchell. [ 56 ] The defence of reasonable mistake of fact is a separate defence but is often conjoined with the defence of due diligence ( R v French , 2018 ABPC 296 at para 205 ).

The defence of reasonable mistake of fact appears to be raised less frequently than the due diligence defence ( R v Value Drug Mart Associates Ltd , 2014 ABPC 164 at para 233 ). [ 57 ] In R v Legrande , 2014 ABCA 192 , the appellants, charged with wildlife offences, argued that they had been operating under a mistake of fact, namely that they did not know that they had been in a Wildlife Sanctuary.

The Court of Appeal addressed the difference between a mistake of fact and a mistake of law; after all, a mistake of law does not provide a defence: Lévis (City) v Tétreault , 2006 SCC 12 at paras 21-2 , [2006] 1 SCR 420 . The Court of Appeal reviewed the authorities, including R v MacDonald , 2014 SCC 3 , where the Supreme Court of Canada held that “an error made by an accused in interpreting his or her authorization or licence is a mistake of law and not one of fact” (at para 57).

The Court of Appeal found that the appellants had been operating under a mistake of law as to the legality of hunting at the location where they were and had not been mistaken as to the physical attributes of that area.

Although the Supreme Court of Canada’s comment in MacDonald was made in the context of an authorization or license to possess a firearm, it seems equally applicable to the operation of a motor vehicle. [ 58 ] In French at para 202 , the Court stated that “the mistake of fact must be honestly held and must be shown to be based upon reasonable grounds and that the accused has shown that he has taken all steps to ascertain the true state of affairs.” [ 59 ] In R v Starosielski , 2001 ABPC 208 at para 134 , the Court set out the following requirements to establish the defence of reasonable mistake of fact : 1.

There is a set of facts upon which the defendant acted. 2. These facts reach to the external elements of the offence. 3. The manner in which the defendant formulated and accepted this set of facts was reasonable. 4. The defendant acted reasonably based upon these facts. 5. The assumed facts cannot be the result of merely an

interpretation of law. 6. The defendant cannot have been seen to be wilfully blind to the law. [ 60 ] The following beliefs of Mr. Mitchell are mistakes of law, not of fact: (

a) that his Class 5 GDL license entitled him to lawfully operate the rock truck on a highway (

b) that the rock truck was not a “motor vehicle” and thus exempt from registration; and (

c) that the rock truck was validly insured for use on a public highway. [ 61 ] There is no evidence that the safety training program specifically addressed the requirements of licencing, registration, and insurance for the rock truck or that Mr. Mitchell made any reasonable related inquiries. Further, relying on a snippet of an overhead conservation of others in the shop area that they were “good to go” does not meet the reasonableness component of this defence. The defence of reasonable mistake of fact is not made out by Mr. Mitchell on a balance of probabilities. VI.

Conclusion [ 62 ] The trial judge made findings of fact and applied the law to the facts. The conclusions reached by the trial judge were

reasonable and supported by the evidence and law. No reviewable error was made by the trial judge. [ 63 ] The trial judge did not make any reviewable errors when he found that the rock truck was a motor vehicle which was driven by Mr. Mitchell on a highway without a valid licence, registration, and insurance. Also, the trial judge did not make any reviewable error when he found that Mr. Mitchell did not establish the defence of due diligence. [ 64 ] The appeal is dismissed. Heard on the 10 th day of September, 2021.

Additional written submissions received on the 29 th day of October, 2021 and the 5 th day of November, 2021. Dated at the City of Wetaskiwin, Alberta this 17 th day of November, 2021. M. Kraus J.C.Q.B.A. Appearances: Craig Paterson for the Appellant Joshua Mitchell Christina da Rosa for the Respondent Crown