Her Majesty the Queen - v. -, 2017 SKPC 79

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 079 Date: August 31, 2017 Information: 24533655 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Alexander Irvine Appearing: Alyssa McIntyre For the Crown Ronald Piché For the Accused TRIAL DECISION J. RYBCHUK , J INTRODUCTION [ 1 ] The accused, Mr. Irvine, is charged on Information 24533655 with one count of operating a motor vehicle “while disqualified from doing so by reason of an order pursuant to Section 259(1) of the Criminal Code , contrary to Section 259(4) (

b) of the Criminal Code ”. ISSUES

1. Has the Crown proven the mode of disqualification? 2. Has the Crown proven knowledge of the disqualification? 3. Can the accused be found guilty of a lesser included provincial offence? ANALYSIS Mode of Disqualification [ 2 ] An offender may be convicted of driving while disqualified under s. 259(4) of the Criminal Code upon proof of either or both of the following modes of disqualification: 1. A driving prohibition order under the Criminal Code ; or 2.

A driving disqualification (e.g. suspension or restriction) under provincial law imposed upon conviction for an eligible Criminal Code driving offence. ( R v Fernandes , 2013 ONCA 436 [ Fernandes ]; R v Brownson , 2013 ONCA 619 [ Brownson ]) [ 3 ] These two modes of proof are derived from the two different forms of “disqualification” contained in s. 259(5) of the Criminal Code as follows: 259(5) For the purposes of this section, disqualification means (

a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or (

b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed (

i) in the case of a motor vehicle, under the law of a province, … in respect of a conviction or discharge under

section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4). [ 4 ] In Brownson the accused was convicted of operating a motor vehicle with a blood alcohol concentration over .08 on February 13, 2009. Mr. Brownson was prohibited from driving under the Criminal Code for one year from the date of conviction. He was also suspended from driving under provincial law for three years from the date of conviction. Mr.

Brownson was arrested for driving while disqualified on June 28, 2010 (i.e. after the Criminal Code driving prohibition had expired but before the provincial driving suspension had ended). [ 5 ] The Crown chose to proceed under the first mode of disqualification in Brownson . The particulars of the charge on the Information stated that he did operate a motor vehicle “while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code contrary to section 259(4) (

a) of the Criminal Code ”. This wording is virtually identical to the wording used on the Information in this case where the Crown also chose to proceed under the first mode of disqualification. The only difference in particulars between the charges contained on the two Informations is that Mr. Irvine was prosecuted summarily under s. 259(4) (

b) whereas Mr. Brownson was prosecuted by indictment under s. 259(4)(

a) of the Criminal Code . In all other material respects, the wording of the charges stated on the two Informations is identical. [ 6 ] In Brownson the Ontario Court of Appeal quoted with approval the following statement of the law taken from the Crown’s

factum at para. 10: The respondent acknowledges that the law in Chuang , and indeed in other cases where the Crown has failed to prove the case as particularized, remains clear: that if the Crown attempts to prove that an individual was driving while disqualified, either by way of a prohibition order or a suspension resulting from a conviction, they must either properly state the correct mode of disqualification in the Information or simply state that the driver was disqualified period and then lead evidence of either mode at trial. [ 7 ] This statement of the law is consistent with the Forms of Charges

section in Martin’s Annotated Criminal Code which suggests two alternate ways of stating or particularizing the wording on a charge of driving while disqualified under s. 259(4) of the Criminal Code as follows: 259(4) Operation while disqualified A.B. on ……………. at ……………. did operate a motor vehicle [ or vessel or aircraft or railway equipment] [ specify ] while disqualified from so doing by reason of (

a) an order pursuant to s. 259(1) [ or (2)] of the Criminal Code contrary etc. or (

b) the legal disqualification [ or restriction] in the Province of ……………. of his right or privilege to operate a motor vehicle in that Province contrary etc . [ 8 ] In both Brownson and this case the Crown laid Informations stating that the accused was disqualified from driving under the first mode of disqualification by way of a driving prohibition under the Criminal Code .

However, in both cases the Crown prosecuted the accused under the second mode of disqualification by way of driving suspension under provincial law. [ 9 ] In Brownson the Ontario Court of Appeal overturned two lower court decisions and acquitted the accused of driving while disqualified because the Crown failed to prove the charge as particularized on the Information. That is, he was not disqualified from driving by reason of a prohibition order under s. 259(1) of the Criminal Code , but rather by operation a provincial suspension only. [ 10 ] In this case, Mr.

Irvine was convicted of two counts of operating a motor vehicle with a blood alcohol concentration over .08 on December 5, 2011. He was prohibited from driving under s. 259(1) of the Criminal Code for a total period of three years from the date of conviction (i.e. a one year driving prohibition followed by a second two year driving prohibition) according to the Criminal Code driving prohibition orders entering into evidence as Exhibit P-1 [Driving Prohibitions]. Mr. Irvine was also continuously disqualified from driving under s. 141 of The Traffic Safety Act, c.

T-18.1 [TSA] from the date of conviction up to and including May 10, 2016 according to the registrar’s certificate of disqualification entered into evidence as Exhibit P-2 [Registrar’s Certificate]. The accused was arrested for driving while disqualified on May 3, 2016 (i.e. after the Criminal Code driving prohibitions had expired but before the provincial driving disqualification had ended). [ 11 ] For the same reasons as Brownson, I find the Crown has failed to prove the offence of driving while disqualified as particularized on the Information. The accused’s Driving Prohibitions expired on December 5, 2014.

Mr. Irvine was not pulled over and charged with driving while disqualified until almost a year and half later on May 3, 2016. The accused was not disqualified from driving at that time “by reason of an order pursuant to s. 259(1) of the Criminal Code ” as he has been charged , but rather by reason of a disqualification or suspension from driving imposed pursuant to s. 141 of the TSA, with which he has not been charged. The Crown chose to state the mode of disqualification in the Information.

It did not properly state the correct one. [ 12 ] Criminal courts do generally enjoy broad powers of amendment up to, during and following trial ( R v Koma , 2015 SKCA 92 ). But, for the same reasons indicated by the Ontario Court of Appeal in Brownson , I believe the accused here would be misled or prejudiced in his defence if I was to amend the Information now to include the provincial driving disqualification. I also believe this amendment cannot be achieved without injustice being done to the accused for much the same reasons as those outlined in Brownson , including:

1. The Crown never requested or applied for an amendment before, during or after trial. 2. In Brownson the accused’s lawyer cross-examined the Crown witness. In this case, however, the accused did not cross-examine the Crown witness based on the evidence the Crown had presented in court. It is impossible to know how an amendment such as this would have affected the accused’s decision not to cross-examine, and if he would have chosen to cross-examine, the precise areas he would have focused on in cross-examination.

It is also difficult to ascertain whether the accused would have called other evidence or provided additional testimony himself if this amendment had been made. [ 13 ] I do not believe the prejudice bar should be set too high in a case such as this where the Crown did not seek an amendment to the Information. For these reasons, I conclude that the accused has cleared the prejudice bar and I decline to make any amendment to the Information at this time. [ 14 ] I therefore, find the accused not guilty of the offence as charged and enter a verdict of acquittal.

Knowledge of Disqualification [ 15 ] If I am incorrect in my prior analysis and the Crown is able to prove the offence of driving while disqualified based on a provincially imposed driving disqualification, then it is necessary for me to consider further the Fernandes decision from the Ontario Court of Appeal.

Fernandes was referred to in Brownson and expounds on the two ways in which the Crown can go about proving the offence of driving while disqualified under s. 259(4) of the Criminal Code . [ 16 ] According to Fernandes , where the Crown relies on the first method it must prove compliance with s. 260(1) of the Criminal Code which deals with notice to the accused of the Criminal Code driving prohibition order and provides: 260

(1) If a court makes a prohibition order under

section 259 in relation to an offender, it shall cause (

a) the order to be read by or to the offender; (

b) a copy of the order to be given to the offender; and (

c) the offender to be informed of subsection 259(4). [ 17 ] Fernandes held that section 260(1) is only engaged and used to prove the first method.

The Crown does not need to demonstrate compliance with s. 260(1) as an essential element of the offence under the second method. [ 18 ] Where the Crown relies on the second method it may prove compliance with ss. 260(4) and (5) of the Criminal Code which deal with notice to the accused of the provincial driving disqualification and a provincial registrar’s certificate setting out details of the disqualification as follows: 260(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph in 259(5)(

b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration. 260(5) In proceeding under

section 259, a certificate setting out with reasonable particularity that a person is disqualified from (

a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, … is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.

[19] In this case, the Crown demonstrated compliance with s. 260(1) under the first method by virtue of the Driving Prohibitionsand cross-examination of the accused wherein he acknowledged that the Driving Prohibitions were read when given to him and that hewas informed of s. 259(4) with his signature being at the bottom of each order.

However, these Driving Prohibitions had already expiredat the time of driving so the only way the Crown can prove its case is by relying on the second method. [20] The Crown also demonstrated compliance with s. 260(5) under the second method by virtue of the Registrar’s Certificatewhich is for all intents and purposes, the form of registrar’s certificate contemplated in s. 260(5) of the Criminal Code.

It is evidencethat the accused was continuously disqualified from operating a motor vehicle in Saskatchewan from December 5, 2011 up to andincluding the date the certificate was issued on May 10, 2016. [21] However, the Crown did not demonstrate compliance with s. 260(4) dealing with knowledge by the accused of the provincialdriving disqualification.

There was an indication by counsel on the day of trial that someone from Saskatchewan Government Insurance[SGI], being the administrator responsible for the TSA in Saskatchewan, was available to testify about the history and details of theprovincial driving disqualification but that person was never called as a witness by either party. [22] The Crown did present Mr. Irvine with a letter purportedly sent to him from SGI in 2011. The Crown questioned him aboutthe letter in cross-examination, but never tendered the letter into evidence.

The accused was adamant that he had never seen this letterbefore it was shown to him that day. The Court was not provided with a copy of the letter and has no idea of its contents. It therefore,has no evidentiary value in these proceedings. [23] The Crown did not take advantage of s. 260(4) of the Criminal Code to prove that the accused had knowledge of theprovincial driving disqualification under the second method.

This is not fatal to its case though, as it is only one way the Crown mayprove the necessary element of mens rea for the offence of driving while disqualified (R v Gale, (1995), (AB KB), 168 AR 212, 16 MVR (3rd) 33 (QB). [24] Mens rea is the mental element and requires proof that the accused received notice or had knowledge of the provincial drivingdisqualification. Direct evidence of this is almost always difficult to obtain.

It involves a mere formality of detail or procedure underthe TSA and contains an element of probability that the accused was notified of the driving disqualification. [25] In these circumstances, the Saskatchewan Court of Appeal held in R v Larsen, (1992), 71 CCC (3d) 355 (SKCA) that thedoctrine of regularity applies with the result that the only reasonable presumption is that the accused was notified of his provincialdisqualification.

Accordingly, a provincial registrar’s certificate together with the application of the doctrine of regularity is sufficient toconstitute prima facie proof of the mens rea for the offence of driving while disqualified, that is proof that the accused knew he wasdisqualified from driving. [26] This doctrine or presumption of regularity can be rebutted by evidence to the contrary arising from the Crown’s case or led bythe accused (R v Guilbault, 2010 NSCA 102). [27] In R v Rorquist, (SK CA), [1980] 56 CCC (2nd) 90 the Saskatchewan Court of Appeal adopted the Ontario Court of Appeal decision in R v Lock (1974), (ON CA), 18 CCC (2nd) 477, 4 OR (2nd) 178 (ONCA) that held once theCrown proves that the accused drove while disqualified, the Crown makes out a prima facie case notwithstanding that there is no directevidence that the accused knew of the suspension.

The accused then runs the risk of being convicted unless he discharges the evidentialburden of introducing evidence of lack of knowledge, although if at the end of the case there is a reasonable doubt with respect to theelement of knowledge, he is entitled to be acquitted. [28] Therefore, the accused is not required to rebut the presumption of regularity on a balance of probabilities. Rather, the test isone of raising a reasonable doubt of proof of knowledge.

This was affirmed by the Supreme Court of Canada in R v Lariviére 2001 SCC93 [Lariviére] where it quashed an appeal from the decision of the Quebec Court of Appeal (2000) (QC CA), 38 CR (5th) 130, [2000] QJ No 3086 (QL) and stated, at para. 5: Dussault J.A., for the majority, concluded that the trial judge believed the respondent, or at least had a reasonable doubt, as to whether heknew that he was disqualified from driving at the relevant time (para. 22). … In his conclusion Dussault J.A. reiterated that

[TRANSLATION] “unless he found that the [accused’s] explanation was not credible, the judge could not base a verdict of guilty on the fact that he failed to carry out certain research” (para. 25). [ 29 ] According to Lariviére , an assessment of the credibility of the accused’s testimony should be conducted by the trial judge to determine whether it raises a reasonable doubt on the issue of knowledge.

In Lariviére the Quebec Court of Appeal determined that knowledge was not proven having regard to the fact that although the accused was subject to a three-year driving prohibition, he believed that the prohibition was over after one year subsequent to taking a driving test and receiving an apprentice driving licence. [ 30 ] On the facts of this case, the Registrar’s Certificate was produced in accordance with s. 260(5) of the Criminal Code and it raises the presumption that Mr. Irvine was notified of such disqualification under the TSA. It has evidentiary value and is prima facie proof that Mr.

Irvine had knowledge of the disqualification when he was driving on May 3, 2016. [ 31 ] However, Mr. Irvine took the stand at trial and testified to the contrary. He said he had no knowledge that he was disqualified or suspended from driving that day. He testified that he took all of the courses and programming required of him by his probation officer following his convictions for driving over .08 and the imposition of the Driving Prohibitions in 2011. Mr.

Irvine attended many different meetings and sessions with several different counsellors for addictions assessment, education, and recovery treatment and programming. He thought he had completed all of the required programming by mid-July 2012 and that his Driving Prohibitions simply expired two years later in 2014. [ 32 ] He was unable due to a downturn in the economy to pay the 3,500.00 in fines and surcharges imposed on him as a result of his convictions in 2011, as well as potentially some other outstanding tickets that totaled $4,886.00.

It was for this reason that he did not try to get his licence back following the expiration of his Driving Prohibitions in 2014. He simply did not think he could get his licence back until all of the fines were paid in full. He therefore knew he was driving without a valid driver’s licence on May 3, 2016, but did not know his licence was still suspended by the province at that time. [ 33 ] Indeed, it was not until after Mr. Irvine was charged with this offence that he went down to SGI to sort things out.

He was required by SGI to pay his fines and meet briefly with someone who faxed confirmation of the meeting to SGI. He then received his licence back from SGI on September 9, 2016. [ 34 ] Mr. Irvine’s evidence was not contradicted. There was nothing in his testimony that would cause me to disbelieve him or regard him as being untruthful or not credible.

He has therefore met the evidential burden by adducing sufficient evidence to rebut the presumption of regularity, or at the very least, raised a reasonable doubt as to whether he had knowledge of the provincial driving disqualification when he was pulled over on May 3, 2016.

The Crown has therefore failed to prove beyond reasonable doubt the necessary element of mens rea and I find him not guilty of the offence of driving while disqualified for this reason as well. [ 35 ] The notice at the bottom of the Driving Prohibitions is not proof that the accused had knowledge of the provincial driving disqualification that was actually imposed on him by SGI, nor is it proof that the driving disqualification imposed on him was “in respect of a conviction” for an eligible Criminal Code driving offence as required under s. 259(5) of the Criminal Code .

This evidence only indicates that a further suspension may occur by the province. It does not indicate the length of the period of suspension as determined by SGI or the basis for the suspension. The province may or may not suspend someone from driving for any lengths of time for any number of reasons that are not necessarily related to one of the eligible Criminal Code offences enumerated in s. 259(5) of the Criminal Code . [ 36 ] The same reasoning applies to the fact the sentencing judge followed the legal duties imposed on him under s. 141(5)(

b) of the TSA when he informed the accused that he was also disqualified from driving under provincial legislation when sentencing him for the original driving over .08 convictions on December 5, 2011. This does not mean SGI ever provided notice to the accused of the actual suspension or importantly, its “duration” as contemplated in s. 260(4) of the Criminal Code . [ 37 ] Lastly, the Registrar’s Certificate does not clearly identify the precise basis for the provincial suspension and whether it was “in respect of a conviction” for one or more of the eligible driving offences listed in s. 259(5) of the Criminal Code . Lesser Included Provincial Offence

[ 38 ] It is not open to this Court to convict the accused of any lesser included provincial offences such as driving while disqualified or suspended under s. 140 of the TSA or driving without a valid driver’s or operator’s licence under s. 32 of the TSA . [ 39 ] In R v Bartlett, (1999) 47 MVR (3 rd ) 100 the Ontario Superior Court determined that where an accused pleads not guilty, the court may not convict the accused of a “provincial offence” as a lesser offence included within the “greater federal offence” charged.

Section 606(4) of the Criminal Code does permit an accused to plead guilty to a provincial offence arising out of the same transaction as the federal offence charged, but when the accused pleads not guilty and has run a trial, a federal offence does not contain a provincial offence as a lesser and included offence even though a provincial offence may have been made out on the facts of the case. CONCLUSION [ 40 ] The Crown has not proven beyond a reasonable doubt the form of disqualification particularized on the Information or the mens rea for the criminal offence of driving while disqualified.

I therefore, find the accused not guilty and enter a verdict of acquittal. ___________________ Rybchuk, J