) ) HER MAJESTY THE QUEEN ) J. Barclay ) for the Crown. - v. - ), 2011 MBPC 60

2011 MBPC 60 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Barclay ) for the Crown. - and - ) ) GERALD KEITH POMPANA, ) M. Wasyliw ) for the Accused. Accused. ) ) Judgment Delivered: ) September 8, 2011 SLOUGH, P.J. INTRODUCTION [ 1 ] Gerald Pompana is charged with driving while disqualified on September 8, 2010. The evidence consists of the testimony of a member of the RCMP who saw him driving on that date and a letter from the registrar of motor vehicles stating that on September 8, 2010 a person by the name of Gerald Pompana was disqualified from driving.

The issue in this case is whether or not the letter from the registrar is sufficient proof of the accused’s knowledge of the suspension. FACTS [ 2 ] On September 8, 2010 Constable Linklater of the RCMP saw the accused driving a motor vehicle on the Ebb and Flow First Nation. In his evidence, Constable Linklater stated that he knew the accused to be a disqualified driver. He did not state the source of this knowledge. Constable Linklater arrested the accused for driving while disqualified. After processing and the service of certain documents, the accused was released on a promise to appear.

The accused made no comment upon being arrested. He did not testify at trial. ANALYSIS [ 3 ] There is no direct evidence relating to the accused’s knowledge of his suspension. Rather the Crown relies on s. 260 of the Criminal Code which states in part: “

(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 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.

(5) In proceedings 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, or

(

b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister ofTransport for that purpose 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. (6) Subsection (5) does not apply in any proceedings unless at least seven days notice in writing is given to the accused that it is intendedto tender the certificate in evidence.” [4] There is no issue that the accused was served pursuant to s. 260 (6) with proper notice of the intention to produce the letterfrom the registrar. [5] The letter setting out notice of the disqualification was filed as Exhibit 1 in these proceedings.

Notice of suspension wassigned for by Pam Pompana. Constable Linklater testified that it was his belief that Pam Pompana is the wife of the accused. The Crowndoes not rely on the fact a person with the same name as the accused’s wife signed for the letter to prove knowledge of the suspension.Rather the Crown argues in the absence of evidence to the contrary that s.260(4) provides proof of knowledge and establishes a primafacie case against the accused. [6] Counsel for the accused suggests that the fact a person other than Gerald Pompana signed for the letter is evidence to thecontrary. With respect, I disagree.

At best this evidence is equivocal with respect to the evidence of accused’s knowledge of thesuspension. [7] Evidence to the contrary is defined in the Supreme Court of Canada case of R. v. Proudlock (SCC), [1979] 1S.C.R. 525 (per Justice Pigeon) in the following manner: “The standard of evidence required for a conviction, including the standard of the evidence required to overcome a prima face caseagainst accused, is just as basic a principle as the right of the accused to remain silent. In fact, it may be considered as a qualification ofthis principle.

The accused may remain silent but, when there is a prima facie case against him and he is, as in the instant case, the onlyperson who can give “evidence to the contrary” his choice really is to face certain conviction or to offer in testimony whateverexplanation or excuse may be available to him.

If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on theauthorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish hisinnocence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and itwill be sufficient unless he is disbelieved by the trier of fact, in which case his testimony is no evidence.

In any case, the evidence givenby himself or otherwise, has to be such as will at least raise a reasonable doubt as to his guilt; if it does not meet this test the prima faciecase remains and conviction will ensue.” (emphasis added). [8] R. v. Lock (1974) (ON CA), 18 C.C.C. (2d) 477 (Ont. CA) describes the legal effect of the predecessor to s. 260 Criminal Code: “27 In Heisler v.

The Queen (1966), (NS CA), 49 C.R. 297, MacQuarrie, J., delivering the judgment of the NovaScotia Supreme Court, upholding the conviction of the accused on a charge under s. 225(3) (now s.238), said at pp. 299-300: The learned magistrate found as a fact in this case that the accused was operating a motor vehicle on 24th December 1964. TheCrown, in addition, had to establish that the appellant was in fact disqualified. This it purported to do by virtue of the certificate of theRegistrar. This contained the essential facts which it was necessary to establish in order to prove the offence.

There is no requirementunder the Code for any additional evidence. When these facts had been proved, it was incumbent upon the accused to rebut whatessentially constituted a prima facie case. With the establishment of these essential facts, the Crown was entitled to rely on thepresumption that a man intends to natural consequences of his act in order to prove the necessary mens rea.

As indicated by the magistrate, no evidence was adduced by the appellant which would rebut the prima facie case established by the Crown in the first instance in this case.” [ 9 ] In my view, a letter pursuant to s. 260 is capable of establishing a prima facie case against the accused. [ 10 ] However, there are some issues with respect to the letter from the Registrar. Firstly, although the letter states that a copy of the order of Court-ordered prohibition is enclosed, that document was not part of the exhibit filed in Court.

In my opinion that document ought to have been included in the materials filed as part of the letter from the Registrar. [ 11 ] Secondly, the Court-ordered prohibition had expired prior to September 8, 2010 and accordingly, the “suspension/disqualification” referred to in the letter from the Registrar was pursuant to provincial legislation: s. 264 of the Manitoba Highway Traffic Act . That

section deals with suspensions imposed on individuals convicted of various Criminal Code offences. Because that

section pertains to Criminal Code suspensions and not provincial offences the Crown is able to proceed under s. 259 of the Criminal Code even though the suspension/disqualification is imposed pursuant to provincial legislation. See R. v.

Boggs [1981] S.C.R. 49 . [ 12 ] Finally, while not absolutely necessary, the letter from the Registrar would be more helpful to the Court if it provided some detail as to the basis for the provincial suspension. [ 13 ] The major issue in this case is whether or not the Registrar’s letter and the evidence called at trial meet the requirement of “reasonable particularity” as stipulated in s. 260(5) Criminal Code .

The letter filed as Exhibit 1 states that: “Gerald Keith Pompana whose date of birth is April 15, 1966 was suspended/disqualified from holding a licence to drive a motor vehicle...” The letter also states: “A search of our records discloses that there is no other person of the same name and birthdate, who now resides or has resided at the above address, and who was suspended/disqualified on September 8, 2010 from driving a motor vehicle or an off-road vehicle by reason of a legal suspension/disqualified of his/her driver’s licence and/or of his/her right to obtain a licence.” [ 14 ] In this case there is no direct evidence presented by the Crown with respect to the accused’s date of birth, address or driver’s licence number.

While that information appears on other documents filed by the Crown (Notice to Seek Greater Punishment Exhibit 3) there was no evidence as to the source of that information. Without evidence as to date of birth of the accused, address or other evidence connecting the accused to the letter from the Registrar, I am unable to be satisfied beyond a reasonable doubt that the letter filed as Exhibit 1 refers to the accused. Accordingly, I am entering an acquittal with respect to this charge. __________________________ Slough, P.J.