R. v. Phillips Date:, 2012 BCPC 547

Citation: R. v. Phillips Date: 20120830 2012 BCPC 0547 File No: 192644-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT STEPHEN PHILLIPS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: W. Sayson, Q.C. Counsel for the Defendant: J. Stowe Place of Hearing: Surrey , B.C. Date of Hearing: August 24, 2012 Date of Judgment: August 30, 2012

[ 1 ] Robert Stephen Phillips is charged with driving while prohibited on January 24, 2012, contrary to s. 95(1) of the Motor Vehicle Act of BC. The following three issues arose in his trial: 1. Has the Crown proved beyond a reasonable doubt that Mr. Phillips drove a motor vehicle on January 24, 2012? 2. If so, has it proved beyond a reasonable doubt that he was prohibited from driving at the time? 3. If so, has it proved beyond a reasonable doubt that he knew he was prohibited at the time he drove? I will deal with the issues in the above order.

The applicable provisions of the Motor Vehicle Act are reproduced at the end of these reasons. 1. Proof of Driving [ 2 ] I accept Crown counsel’s submissions that the combined evidence of Cst. Nickel and Cst. Lai proved beyond a reasonable doubt that Mr. Phillips drove a Mercedes-Benz on 108 Avenue in Surrey on January 24, 2012. Defence counsel, Mr. Stowe, did not present argument opposing the Crown’s submissions on this issue. [ 3 ] In analyzing the officers’ testimony identifying the driver of the Mercedes as Mr. Phillips, I am mindful of the frailties of eyewitness identification evidence.

However, in this case the witnesses were not identifying a stranger seen briefly in highly charged circumstances. Both witnesses knew Mr. Phillips from previous contact with him. He was well-known to Cst. Nickel, in particular, from numerous contacts. Moreover, the officers had begun surveillance of the car and were watching it with the specific purpose of seeing who would approach it. Thus, when they made their observations they were focused on the task of identifying the driver.

I found them to be careful witnesses, who did not exaggerate, but were truthful in acknowledging times when they could not make an identification due to distance or obstructed views. I am satisfied that the circumstances they described, including brief observation time and slight rain, but in daylight and at a close distance, were sufficient to enable them to recognize Mr. Phillips accurately. I therefore consider their evidence reliable and find as a fact that Mr. Phillips drove the Mercedes on January 24, 2102. 2. Proof of Prohibition Identification [ 4 ] Cst. Hobbs testified that after seeing Mr.

Phillips driving a moped without a licence plate and proper lights, he served him with a notice of prohibition on January 13, 2011. Mr. Stowe argued that the officer’s evidence was unreliable and insufficient to prove beyond a reasonable doubt that Mr. Phillips was the man who was served, since the moped driver had no identification and the officer was unable to compare his appearance with the photograph on a driver’s licence. However, I accept the officer’s identification of Mr. Phillips as the man he dealt with that night.

He had ample time and opportunity to observe the moped driver: he spent 40 minutes with him and did a pat down search. When testifying, the officer provided a description of the driver including details of two tattoos which he said he confirmed using CPIC and PRIME, and he noted ways in which Mr. Phillips’ appearance had changed in the last eighteen months. Cst. Hobbs also said he obtained a name, date of birth, and address from the driver; checked the name; and confirmed his keyword.

In cross examination he added that he queried the information provided by the driver against the Superintendent’s database, and his name and date of birth coincided. I am therefore satisfied that Cst. Hobbs served a notice of prohibition on Mr. Phillips. Certificate Evidence [ 5 ] To prove that Mr. Phillips was prohibited from driving, the Crown relies on the Certificate of Superintendent, Exhibit 1, filed under s. 82(8) of the Motor Vehicle Act , supplemented by the testimony of Cst. Hobbs. Under s. 82(6) of the Act, this Certificate is evidence of the facts contained in it.

It certifies in its first paragraph that Mr. Phillips was prohibited the entire day of 24 January 2012, under s. 251(4) of the Act . However, its second paragraph states: I do hereby certify that the records kept by the Superintendent of Motor Vehicles under the Motor Vehicle Act contain a Certificate of Service in the form established by the Superintendent under Section 251(3)(

b) of the Motor Vehicle Act which I attach to this Certificate showing that a notice of driving prohibition under Section 251(1)(

h) of the Motor Vehicle Act prohibiting Robert Stephen Phillips from driving was personally served on Robert Stephen Phillips on 13 January 2011 . [ 6 ] This is incorrect: the attached Certificate of Service shows the date of service as 13 January 2013 rather than 2011. The Crown called Cst. Hobbs to correct the error on the Certificate of Service. He testified that he actually served the notice of prohibition on Mr. Phillips on January 13, 2011 , and simply made an error when writing the year. I find that Cst. Hobbs’ testimony cures the Certificate’s error in the date. [ 7 ] However, Cst.

Hobbs’ testimony contradicted the Certificate of Superintendent in another respect. The prohibition alleged in this case was pursuant to s. 251 (4). That subsection reads as follows: s. 251(4) If a person is served with a notice of driving prohibition under subsection (1)(h), the person is prohibited from driving a motor vehicle until the person is issued a driver's licence under this Act or the notice of driving prohibition is revoked under

section 261. Cst. Hobbs’ authority to serve a notice of prohibition was derived from ss. 251(1)(

c) and (h): s. 251 (1) If a peace officer has reasonable grounds to believe that a person ...

(

c) has driven or operated a motor vehicle on a highway while (

i) the person did not hold a subsisting driver's licence issued under this Act and was not exempt under

section 34 from holding a driver's licence issued under this Act , and (ii) a notice under

section 252 was in place on the driving record of the person the peace officer or another peace officer must (

h) if paragraph (

c) of this subsection applies, serve on the person a notice of driving prohibition in the form established by the superintendent. (Underlining added) [ 8 ] Cst. Hobbs testified that the Notice of Prohibition he served was on an old form that had been replaced with a new form by the Superintendent. The Crown argues that it doesn’t matter what paper a notice of prohibition served under s. 251 is written on, as long as it meets the requirements of s. 251(2) which requires that the notice referred to in subsection (1)(

h) contain certain information. Although the notice in this case contained the necessary information, the wording of ss. 251(1)(

c) and (

h) and Cst. Hobbs’ testimony prevent me from accepting that submission. Those subsections makes it mandatory to serve a notice in “the” form established by the Superintendent, not “a” form, and the only evidence in the trial is that Cst. Hobbs did not use the form that was established by the Superintendent for use at the time of service. [ 9 ] It appears that this issue came to counsel’s attention when Cst.

Hobbs’ notes were disclosed shortly before the trial, so there was no time to obtain evidence regarding the process by which a form is established by the Superintendent, the timing of any change, or the differences between old and new forms. I am therefore left with only Cst. Hobbs’ testimony on this issue. [ 10 ] While the Certificate is evidence that Mr. Phillips was prohibited from driving on the date in question, Cst. Hobbs’ testimony rebuts that evidence. His testimony establishes that Mr. Phillips was not served with a notice of prohibition that complied with s. 251(1) (h). Service under s. 251(1)(

h) is a precondition for prohibition under s. 251(4). I therefore conclude that since Mr. Phillips was not served with a notice under s. 251(1)(h), s.251(4) did not operate to prohibit him from driving. I am left with conflicting evidence as to whether Mr. Phillips was prohibited, creating a reasonable doubt. The Crown has therefore not proven beyond a reasonable doubt that Mr.

Phillips was prohibited from driving on January 24, 2012. [ 11 ] I note that s. 95(3) does not assist the Crown on this issue because the Certificate was not admitted under that subsection and s. 95(3) deals with proof of knowledge of a prohibition rather than proof of the prohibition. 3 . Knowledge of Prohibition [ 12 ] Given my analysis of the second issue I need not consider the third issue. Conclusion [ 13 ] The evidence in the trial fails to prove beyond a reasonable doubt one of the essential elements of the charge, that Mr. Phillips was prohibited from driving on January 24, 2012.

I therefore dismiss the charge. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia Motor Vehicle Act, RSBC 1996 s.82 (6) A record of information, based on the records kept by the Insurance Corporation of British Columbia, the director or the superintendent under this Act, is evidence of the facts contained in the record if (

a) the information is contained in a certificate of an officer of the corporation, or of the director or the superintendent, as the case may be, or (

b) the record contains a statement to the effect that the record is an authentic reproduction of information stored in a database in electronic format by the corporation, director or superintendent, as the case may be.

(8) A certificate or other record referred to in subsection (4), (5) or (6) must be received in all courts for the purposes of those subsections without proof that the certificate or other record was kept or provided with lawful authority.

(1) If a peace officer has reasonable grounds to believe that a person (

c) has driven or operated a motor vehicle on a highway while (

i) the person did not hold a subsisting driver's licence issued under this Act and was not exempt under

section 34 from holding a driver's licence issued under this Act, and (ii) a notice under

section 252 was in place on the driving record of the person, the peace officer or another peace officer must (

g) cause the motor vehicle to be taken to and impounded at a place directed by the peace officer, and (

h) if paragraph (

c) of this subsection applies, serve on the person a notice of driving prohibition in the form established by the superintendent.

(2) The notice of driving prohibition referred to in subsection (1) (

h) must contain all of the following: (

a) a statement of the right to have the driving prohibition reviewed by the superintendent under

section 259; (

b) instructions describing how to apply for that review; (

c) a statement that unless the person applies for a review under

section 259 and the review results in the revocation of a prohibition under

section 261, the person is prohibited from driving until he or she is issued a driver's licence under this Act.

(4) If a person is served with a notice of driving prohibition under subsection (1) (h), the person is prohibited from driving a motor vehicle until the person is issued a driver's licence under this Act or the notice of driving prohibition is revoked under

section 261.