Her Majesty the Queen Appellant And: Edward Taylor Respondent, 2019 NLSC 40

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Taylor , 2019 NLSC 40 Date : February 18, 2019 Docket : 201801G0980 Between: Her Majesty the Queen Appellant And: Edward Taylor Respondent Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 30, 2019

Summary: The Court allowed the Crown’s appeal of an acquittal of an accused on a charge of driving while disqualified and two breaches of probation orders predicated on that charge. The Court determined that the trial judge erred in respect of the excuse of officially induced error of law. Appearances:

Carrie M. Herman Appearing on behalf of the Appellant Michael S. Ralph Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v. Jorgenson, (SCC), [1995] 4 S.C.R. 55; Lévis (Ville) c. Tétreault, 2006 SCC 12 ,[2006] 1 SCR 420; R. v. Cancoil Thermal Corp. (1986), (ON CA), 14 O.A.C. 225, 27 C.C.C. (3d) 295 (Ont. S.C.(C.A.)); R. v. Liptak, 2009 ABPC 342; R. v. Schellenberg, 2002 BCSC 177; R. v. Osborne (2002), 39 M.V.R. (4th) 35, 55 W.C.B. (2d)260 (Ont. Ct. J.); R v. Fisher (1991), 30 M.V.R. (2d) 234, 13 W.C.B. (2d) 194 (Ont. Ct. J. (Prov. Div.)); R. v.

Molis, (SCC), [1980] 2 S.C.R. 356 STATUTES CONSIDERED: Highway Traffic Act, R.S.N.L. 1990, c. H-3; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Crown has appealed a decision of a Provincial Court Judge acquitting Edward Taylor of the following charges set out inan Information sworn on January 27, 2017 (the “Information”): 1) Operating a motor vehicle while disqualified contrary to the section 259(4) of the Criminal Code; 2) Breach of a probation order dated May 4, 2016, contrary to

section 733.1(1) of the Criminal Code; and 3) Breach of a probation order dated April 8, 2016, contrary to

section 733.1(1) of the Criminal Code. [2] These charges were laid after a vehicle owned and driven by Mr. Taylor was pulled over by Royal NewfoundlandConstabulary (RNC) traffic patrol officers on January 27, 2017. One of the officers approached Mr. Taylor’s vehicle and asked him forhis documentation. Mr. Taylor handed the officer his driver’s licence as well as insurance and registration documentation. While thedriver’s licence appeared to be facially valid, the motor vehicle registration computer screen in the RNC patrol car showed that Mr.Taylor’s licence was suspended until April, 2017. [3] The officers therefore filled out a

summary conviction offence ticket for operating a vehicle with a suspended licence andrequested a tow truck for the vehicle. [4] As one of the officers was returning to Mr. Taylor’s vehicle with the

summary offence ticket, the other officer ran a CPICcriminal record check on Mr. Taylor. That check showed that he was prohibited from driving Canada-wide until April 2017 as a result ofan impaired driving charge. It also revealed he was subject to two probation orders with conditions to keep the peace and be of goodbehaviour. Mr. Taylor was then arrested for driving while disqualified and charged with the three counts set out in the Information. [5] The Crown proceeded summarily, with the trial commencing on November 24, 2017. No clear explanation was provided asto the treatment of the

summary conviction offence ticket for driving while suspended. However, it appears from the trial transcript thatMr. Taylor initially paid the fine but later received a letter from the Provincial Department of Justice and Public Safety, FinesAdministration (“Fines Administration”) refunding the money he had paid as either an “overpayment or payment error”. The Crownthen withdrew the

summary offence ticket. [6] At trial, Mr. Taylor did not deny that he was the person driving the vehicle that had been pulled over by the officers onJanuary 27, 2017. Nor did he deny that an Order had been issued from the Provincial Court of Newfoundland and Labrador on April 8,2016 prohibiting him from operating a motor vehicle in Canada for one year from the date of the Order (the “Prohibition Order”). Infact, Mr. Taylor specifically acknowledged that he had signed the Prohibition Order and did not deny that the Prohibition Order imposedwas valid.

[7] However, Mr. Taylor submitted that he should not be convicted as, on the date of the offence, he believed the ProhibitionOrder was no longer operative based upon an officially induced error of law. [8] In support of this submission, Mr. Taylor introduced, with the consent of the Crown, a bundle of five documents that weremarked as Consent No. 4. [9] One document in this bundle of consent exhibits was a copy of a document headed “Driver LicenceSuspension/Reinstatement Requirements” from Service NL, Motor Vehicle Registration Division (“Motor Registration Division”).

Thatdocument stated that a letter was attached informing the recipient that he or she had been given a 90 [day] administrative roadsidesuspension.

However, there was no such letter attached to the copy of the undated and unaddressed document. [10] The document also stated as follows: As outlined the reinstatement requirements for this suspension are: 1) $100.0 [sic] reinstatement fee 2) Payment of outstanding fines 3) Participate in an Alcohol/Drug Education Program (SHIP Course) (see attached letter for details) [11] The document went on to state: Please be advised that if you are convicted of a Criminal Code offence related to impaired driving your reinstatement requirements willchange to the following: 1) $100.00 reinstatement fee 2) Payment of any outstanding fines 3) Participate in an Assessment Program (ADT Course) offered by your Regional Health and Community Service Office. [12] It also recommended that the recipient check on his or her court date to determine whether he or she will be eligible for driverlicence reinstatement prior to that court appearance.

It also noted that the recipient may decide not to complete the SHIP course as he orshe will be required to complete an ADT course if his or her licence is suspended for an impaired driving conviction. [13] Another document forming part of the bundle of Consent No. 4 documents was a letter from Service NL, Motor VehicleRegistration Division (“Motor Vehicle Registration”) dated August 5, 2016 entitled “Medical Report Second Reminder Notice”. Thisreminder notice advised that if information previously requested on Mr.

Taylor’s medical suitability and/or reassessment of his drivingskills was not returned to Motor Vehicle Registration within 30 days, his licence would be suspended under section 63(1) of the HighwayTraffic Act, R.S.N.L. 1990, c. H-3. [14] Mr. Taylor said that when he received the August 5, 2016 second reminder notice from Motor Vehicle Registration, hearranged to have an eye examination completed by his physician and requested that Concurrent Disorder Services, Eastern Health,provide confirmation of his participation in a weekly support group for mental health and addictions.

A copy of the eye examinationreport completed August 17, 2016 and a written letter from Eastern Health dated August 5, 2016 were entered into evidence as two of thefive documents forming part of Consent No. 4. [15] The last document forming part of Consent No. 4 was a renewal of driver’s licence form from Motor Vehicle Registration. That document noted Mr. Taylor’s licence expiry date as April 11, 2017 (the week after his prohibition was set to expire).

This undateddocument was comprised of a “Remittance Portion” and an undetached “Receipt Portion” showing he would need to pay a renewal fee of$125.00 and a reinstatement fee of $200.00. [16] Mr. Taylor testified that he had voluntarily given up his licence for a year after being charged with impaired driving. Then,when he received documents from Motor Vehicle Registration, he thought he had gotten his licence back.

Further, he referred tostatements and actions of his probation workers, and the fact that he was able to maintain insurance on his vehicle, as support for hisbelief that he was legally entitled to drive. [17] After hearing evidence and submissions of counsel, the trial judge found that Mr. Taylor had established the defence ofofficially induced error of law. He entered a verdict of not guilty to the offence of driving while disqualified. As the two other chargesof breach of probation orders were predicated on the commission of the driving offence, those two charges were dismissed.

ISSUE [18] The ground of appeal raised by the Crown is that the trial judge erred in his

interpretation and application of officially inducederror. law and analysis [19] The leading case dealing with officially induced error is the Supreme Court of Canada decision of Chief Justice Lamer in R. v.Jorgenson, (SCC), [1995] 4 S.C.R. 55. At paragraph 36, Lamer, C.J. noted that officially induced error of law functions

as an excuse rather than a full defence. It can only be raised after the Crown has proven all elements of the offence, as it did in thismatter. [20] Once the elements of the offence have been made out, the onus is on the accused to bring evidence to prove, on a balance ofprobabilities, all elements of this excuse. Lamer, C.J. noted at paragraph 36 that ignorance of the law is blameworthy in and of itself.

Section 19 of the Criminal Code, R.S.C. 1985, c. C-46 also codifies that ignorance of the law by a person who commits an offence isnot an excuse for committing that offence. [21] However, an accused can avail of the excuse of officially induced error by bringing forward evidence that the blame is shared,in a sense, with a state official who gave erroneous advice. As such, a conviction should not be entered.

Placing the onus on an accusedto adduce such evidence is appropriate as he or she would be the only one capable of bringing this evidence. [22] Lamer, C.J. then set out the essential criteria that must be established by an accused wishing to avail of this excuse. Thiscriteria was later distilled into the following six constituent elements at page 435 of the Supreme Court of Canada decision in Lévis(Ville) c.

Tétreault, 2006 SCC 12 , [2006] 1 SCR 420: 1) that an error of law or of mixed law and fact was made; 2) that the person who committed the act considered the legal consequences of his or her actions; 3) that the advice obtained came from an appropriate official; 4) that the advice was reasonable; 5) that the advice was erroneous; and 6) that the person relied on the advice in committing the act. [23] I will now examine each of the required elements in light of the evidence at trial and the trial judge’s application of theelements to that evidence. 1.

Was an error of law or of mixed law and fact made? [24] The trial judge accepted Mr. Taylor’s testimony that he incorrectly believed the Prohibition Order was no longer in effect onJanuary 27, 2017. In fact, it remained in effect until April 7, 2017. Mr. Taylor therefore made an error of law. The trial judge wascorrect in finding that the first element of the test had been met. 2. Did Mr. Taylor consider the legal consequences of his actions? [25] Mr. Taylor’s evidence at trial was that he considered the legal consequences before driving.

He was aware that he could notdrive without lawful authority; i.e. while his driver’s licence was suspended or while he was disqualified. He also gave evidence that heconsidered whether he was in compliance with the law.

He says this was demonstrated by him obtaining the medical documentsrequested, paying his outstanding fines, placing insurance on his vehicle and openly driving with the knowledge of his probationworkers. [26] However, at paragraph 29 of Jorgensen, reproduced below, Lamer, C.J. made it clear that this criteria not only requires that anaccused consider the consequences but the accused must have sought advice as a consequence. Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences ofher actions.

By requiring that an accused must have considered whether her conduct might be illegal and sought advice as aconsequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accusedwho wishes to benefit from this excuse to simply have assumed that her conduct was permissible. [27] A review of the decision of the trial judge indicates that he identified the August 5, 2016 second reminder notice and theDrivers Licence Suspension/ Reinstatement document as the advice on which Mr. Taylor relied. However, there was no evidence thatMr.

Taylor actually sought out advice to determine whether the Probation Order was still operative. [28] At page 50 of the transcript, after referencing the above two documents from Motor Vehicle Registration, the trial judge statedthat Mr. Taylor made further inquiry. However, he did not specify the nature of the inquiry. [29] The trial judge noted earlier in his decision that Mr. Taylor testified he had brought the required documentation and fees toMotor Vehicle Registration. However, a review of the transcript does not support this. Mr.

Taylor did provide testimony that he paid his“fines” of $2,900.00 but gave no evidence that he paid the reinstatement fee. In fact, Mr. Taylor did not answer his counsel’s question asto where he paid the reinstatement fee. He also could not state when he paid it (page 13 of transcript). Further, a review of his driver’slicence renewal sent in advance of the renewal date of April 11, 2017 reveals that Mr. Taylor still owed a $200.00 reinstatement fee. [30] With respect to the medical documentation, Mr.

Taylor provided the Court with copies of medical documentation, but at notime did he testify that he brought these documents to Motor Vehicle Registration. In fact, Mr. Taylor provided no testimony that he hadany further communications with Motor Vehicle Registration or any other appropriate official after receiving the August 5, 2016 secondreminder notice. [31] Most importantly, Mr. Taylor gave no testimony that he made an actual inquiry of Motor Vehicle Registration at any timeseeking advice on his own personal circumstances, particularly in relation to the Prohibition Order. The only evidence of Mr.

Taylorregarding discussions with persons after receiving the August 5, 2016 reminder notice is his evidence of dealings with his probationworker(

s) and an insurance company representative. More will be said of the impact of these discussions below.

3. Did the advice obtained come from an appropriate official? [ 32 ] In his decision, the trial judge noted that the documentation Mr. Taylor received from Motor Vehicle Registration was from an appropriate government agency. [ 33 ] At trial, Mr. Taylor seemed to suggest that he also relied on advice from his probation workers and his insurance agent. On this appeal, counsel for Mr.

Taylor did not submit that an insurance representative was an appropriate official to provide advice but did submit that a probation worker met this criteria. [ 34 ] At paragraph 30 of Jorgensen , Lamer, C.J. stated the following in defining who would be an appropriate official: … That is, the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. Therefore, the Motor Vehicle Registrar will be an appropriate person to give advice about driving offences, both federal and provincial.

The determination of whether the official was an appropriate one to seek advice from is determined in the circumstances of each case. [ 35 ] In the circumstances of this case, Mr. Taylor gave evidence that the probation workers witnessed him driving during the period of the Prohibition Order but did not tell him he was prohibited from doing so. He also referenced a conversation with his probation worker in which that individual encouraged him to fight the charge. [ 36 ] With respect to the insurance representative, Mr.

Taylor’s evidence was as follows: … I had full insurance and usually, like the insurance wouldn’t let you get insurance if you had a suspended license, that’s my understand, because I mentioned it to Georgina, at Action Insurance and she said you wouldn’t be able to get insurance. It would come up red flagged in her computer; so, she said there must have been an error in – a human error made. [ 37 ] There is nothing in these circumstances that would lead to a finding that either the probation workers or the insurance representative were appropriate persons from whom to seek advice on a Prohibition Order.

The role of a probation worker is to ensure the individual subject to the probation order meets the conditions of probation. Such a person is not charged with providing legal advice or assisting individuals in matters before the courts or Motor Vehicle Registration.

With respect to an insurance representative, that person may have knowledge and experience on the issue of whether an insurer would insure a vehicle owned by a person who is disqualified from driving, but that representative is not qualified or responsible for providing advice on the continued existence or validity of a driving disqualification. [ 38 ] In any event, while the trial judge noted that Mr.

Taylor discussed the documentation provided by Motor Vehicle Registration with his insurance company and his Court support worker, he did not do so in the context of identifying them as appropriate officials who could provide advice relating to operation of a vehicle while disqualified. He only made the finding that Motor Vehicle registration met this criteria. In Jorgensen , the Supreme Court of Canada expressly recognized the Registrar of a similar government agency as an appropriate official to provide such advice. The trial judge therefore made no error in making this finding. 4.

Was the advice reasonable? [ 39 ] In order to determine whether the advice was reasonable, it is necessary to look at the nature of the advice that was actually provided. As Mr. Taylor presented no evidence that he had conversations or discussions with anyone at Motor Vehicle Registration, the Provincial Court or the Crown (who would also have been appropriate officials), it is the documents entered into evidence that form the advice given. It is therefore necessary to review those documents to determine the issues to which they related. [ 40 ] As noted above, Mr.

Taylor provided the Court with the Medical Report second reminder notice dated August 5, 2016, the undated Driver Licence Suspension/Reinstatement Requirements document, the Driver Licence Renewal Notice, the Eye Examination Report and the Eastern Health confirmation of participation in an alcohol treatment program. [ 41 ] Mr. Taylor also provided the Court with a letter from Fines Administration advising that he either overpaid or made a payment error in respect of the

summary offence ticket of driving while his licence was suspended. While counsel for Mr. Taylor submitted, both at trial and on appeal, that this document was advice received by Mr. Taylor for purposes of this defence, such a document could not meet this criteria as it was received after the offence. The trial judge correctly did not identify this document as forming part of the advice Mr.

Taylor relied on. [ 42 ] In his oral decision, the trial judge referred to the documentation from Motor Vehicle Registration forming the advice as follows: …He stated that he received in the mail correspondence during the period of prohibition from the registrar of Motor Vehicles, asking that he supply proof of his medical fitness to operate a motor vehicle. It stated that failure to supply the information would result in a loss of his license. The correspondence was entered as consent number 4, and the body of the letter refers to driver’s license suspension reinstatement requirement.

It sets out the requirements for reinstatement are: a 100 dollar reinstatement fee, payment of outstanding fines, participate in an alcohol drug education program. The next paragraph of the notice states, Please be advised that if you were convicted of a Criminal Code offence related to impaired driving your reinstatement requirements will change to the following: 100 dollar reinstatement fee, payment of outstanding fines, participate in an assessment program offered by your regional Health and Community Service office. [ 43 ] Later, in summarizing his reasons, the trial judge made the following comments:

In the circumstances of this case, I find that the accused has established the defence of officially induced error. The documentation he received from Motor Vehicles was from an appropriate government agency. I note that the material he received references both the Highway Traffic Act and Criminal Code suspensions and sets out the procedure for reinstatement. Mr. Taylor made further inquiry and took the steps he believed to be required. He relied on the advice and the advice was erroneous.

As a result, I find that the accused is not guilty of the offence. [ 44 ] While the trial judge correctly identified the advice as coming from an appropriate official, a review of his reasons indicates that he did not actually make a finding that the advice given was relevant to the excuse of officially induced error on a charge of driving while disqualified.

He did not set out the precise nature of the advice, merely noting that the documents referenced both Highway Traffic Act and Criminal Code suspensions and set out the procedure for reinstatement. [ 45 ] He also appears to have misapprehended the nature of the advice that was actually provided.

In particular, the above-quoted portion of the decision refers to the August 5, 2016 second reminder notice and the Driver Licence Suspension/ Reinstatement Requirements document as one document received during the period covered by the Prohibition Order. [ 46 ] While both these documents were entered as a bundle of documents under one consent exhibit number, it is evident from their contents that they were two different documents and not received at the same time.

Further, they provide advice on two different issues, neither of which is the continued validity of the Prohibition Order. [ 47 ] A review of the Driver Licence Suspension/Reinstatement Requirements document indicates that it was accompanied by an attached letter informing the recipient that he or she had been given a 90 [day] administrative roadside suspension. The Prohibition Order entered into evidence reveals that Mr. Taylor committed the offence of impaired driving on April 9, 2015.

It was the roadside screening that would have triggered the resulting 90 day licence suspension. [ 48 ] The wording of the document also reveals it is dealing with a suspension that was operative shortly after the roadside screening and, in all likelihood, before any charge of impaired driving had been determined in court.

While the document speaks to how the reinstatement requirements may change if there is a Criminal Code conviction, it is evident from a review of the document that the purpose of this advice is to let recipients know they may have to take a different alcohol and drug program if they are convicted of an impaired driving offence. As such, they may wish to defer taking the SHIP Course.

The document therefore recommends that the recipient check on his or her court date to determine whether he or she would be eligible for reinstatement prior to that court date. [ 49 ] The fact that the document is speaking to a 90 day administrative roadside suspension that may expire before criminal charges are dealt with in court is also evidenced from the following statement in the document: …if you are convicted of a Criminal Code offence related to impaired driving your reinstatement requirements will change to the following [ 50 ] The trial judge, in his oral decision, misstated the wording of the document as follows: Please be advised that if you were convicted of a Criminal Code offence related to impaired driving, the reinstatement requirements will change to the following [ 51 ] This misstatement of the advice given in the document leaves the mistaken impression that the document gave advice after a criminal conviction.

Comments by the trial judge referring to the reinstatement document having been received during the period of prohibition indicate he may have been under this mistaken impression as well. This is not supported by the evidence at trial. The document was undated and Mr. Taylor gave no testimony at trial to confirm when he received it.

He merely had the document presented to him by his counsel with it then being placed into evidence as a bundle of consent documents. [ 52 ] Moreover, it is evident that this document provides advice as to how to have a licence reinstated in accordance with the 90 day administrative roadside suspension requirements and identifies how those requirements may change if there is a subsequent Criminal Code conviction.

It does not state in any way that it is providing advice on, or varying the terms of, any subsequently issued Prohibition Order under the Criminal Code . [ 53 ] With respect to the Medical Report second reminder notice dated August 5, 2016, it is correct that the date of that document falls within the operative period of the Prohibition Order. However, this document is noted to be a second reminder notice and Mr.

Taylor did not provide the trial court with either the first reminder notice dated June 30, 2016 or the initial request for information on his medical suitability to operate a motor vehicle and/or a reassessment of his driving skills. Mr. Taylor also did not testify as to these matters. As such, the Court did not have the benefit of knowing whether such information was first requested before or after the date of the Prohibition Order. [ 54 ] Mr. Taylor also gave no evidence as to the context in which such a request was made. Mr.

Taylor did not provide any testimony to explain the reason for the request or link it in any manner to his Prohibition Order. The wording of the document itself does not indicate that the provision of the medical documentation that had been previously requested would result in the Prohibition Order being vacated. [ 55 ] The second reminder notice was dealing with specific requirements related to medical suitability and/or an assessment of driving skills. While the document does state that Mr.

Taylor’s driver’s licence “will” be suspended if he doesn’t provide the documents, the Highway Traffic Act contains numerous sections outlining reasons why a person’s licence may be administratively suspended (eg., medical unsuitability, non-payment of fines, failure of a roadside breathalyzer test, or the number of driving-related offences) while the Criminal Code contains provisions allowing a judge to issue a court-ordered driving disqualification. [ 56 ] A person may be disqualified from driving by a Canada-wide prohibition order under the Criminal Code at the same time that they are administratively suspended from driving.

Both the suspension and the driving disqualification periods could overlap. For example, if Motor Vehicle Registration had suspended Mr. Taylor’s licence for failure to supply the requested medical documentation,

the suspension under that specific

section of the Highway Traffic Act could have been in effect at the same time as, and have lastedbeyond, the period of the driving disqualification. Administrative suspensions and criminal disqualifications are dealt with by differentprocesses. As a result, a statement that Mr. Taylor’s licence will be suspended under a specific

section of the Highway Traffic Act doesnot equate to advice that his Court-ordered Prohibition Order was not still in effect. [57] On the issue of the reasonableness of the advice given, there is no evidence to suggest that the advice provided in the twodocuments from Motor Vehicle Registration was not reasonable advice. However, the advice related to an administrative 90 day roadsidesuspension and a potential suspension for failure to provide proof of medical suitability. The advice did not relate to the legal issue ofwhether Mr. Taylor remained bound by the terms of the Prohibition Order.

That is the advice that would be required in order for Mr.Taylor to avail of the excuse of officially induced error of law. 5. Was the advice erroneous? [58] Again, whether the advice on the above-noted issues of administrative suspension was erroneous is not relevant to the excuseof officially induced error. However, if those documents could be interpreted as providing advice that the Prohibition Order was nolonger in effect, then that advice was erroneous. 6. Did Mr. Taylor rely on the advice in committing the offence? [59] The final criteria to consider is Mr. Taylor’s reliance on the advice received.

I find that, even if it were correct that Mr. Taylorreceived reasonable but erroneous advice from an appropriate official indicating that the Prohibition Order was no longer in effect, thetrial judge erred in finding that Mr. Taylor had proven this last criteria. [60] At paragraph 19 of Jorgensen, the Supreme Court of Canada quoted from the Ontario Court of Appeal decision in R. v.Cancoil Thermal Corp. (1986), (ON CA), 14 O.A.C. 225, 27 C.C.C. (3d) 295 (Ont. S.C. (C.A.)) with respect to thereasonableness of an accused’s reliance on official advice.

At page 303 of Cancoil, the court stated as follows: The defence of "officially induced error" is available as a defence to an alleged violation of a regulatory statute where an accused hasreasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement ofthe particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinionof the official and that his reliance was reasonable.

The reasonableness will depend upon several factors including the efforts he made toascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity,definitiveness and reasonableness of the advice given. [61] At paragraph 35 of Jorgensen, Lamer, C.J. further commented that an accused can demonstrate reliance on official advice: By proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to theofficial were specifically tailored to the accused’s situation. [62] The trial judge found that Mr.

Taylor relied on the August 5, 2016 second reminder notice and the Driver LicenceSuspension/Reinstatement Requirements document received during the period of the Prohibition Order. While the evidence does notsupport the finding in respect of the timing of receipt of the 90 day roadside suspension document, it is clear that the advice contained inboth documents was received before the commission of the offence. [63] The trial judge then found that Mr. Taylor had considered that advice reasonable, and even discussed it with his insurancecompany and his Court support worker. He found these were people on whom Mr.

Taylor relied and viewed as trustworthy andknowledgeable. As noted above, these individuals are not persons who meet the definition of an appropriate individual to provideadvice. Nevertheless, Mr. Taylor’s evidence as to his discussions with them may be relevant to the degree to which he considered thelegal consequences and whether he established the reasonableness of his reliance on the advice from Motor Vehicle Registration. [64] However, the evidence of these discussions indicates that Mr.

Taylor did not have any specific discussions with theseindividuals on the advice he received, and certainly not prior to committing the offence. The probation workers’ failure to point out thatMr. Taylor was not permitted to drive during the period of the Prohibition Order (assuming they were even aware of or turned theirminds to the terms of the Prohibition Order) does not mean they discussed the issue with Mr. Taylor. The only conversation with aprobation worker referred to by Mr. Taylor is one in which that individual encouraged him to fight the charge. Such a conversation musthave occurred after the offence.

As such, it could not be considered as evidence of his reasonable reliance on the advice. [65] With respect to his reliance on his insurance representative, Mr. Taylor’s evidence does not indicate he discussed the advicereceived from Motor Vehicle Registration with that individual before January 27, 2017.

In testifying as to the conversation he had withthe insurance representative, he says she told him there must have been a human error made, indicating that this conversation took placeafter the offence. [66] Based upon the timing of the discussions with the probation workers and insurance representative, these discussions are notrelevant to the issue of whether Mr. Taylor reasonably relied on the advice of an appropriate official. [67] However, of more significance to the issue of reliance is Mr.

Taylor’s failure to demonstrate that he posed questions of anofficial that were specifically tailored to his circumstances. [68] A review of Mr. Taylor’s evidence on the issue of his reliance indicates that he was either willfully blind or he misinterpretedthe documents from Motor Vehicle Registration. His evidence was that, because he received a letter saying his licence will besuspended failing provision of medical documentation, he thought he was validly licensed to drive.

At page 11 of the transcript, histestimony is as follows: …by the letter I got from Motor Vehicle stating that if I didn’t go and get an eye exam and a letter from my addictions counsellor that

they’re going to suspend my license; that -- I went that day when I got that letter, that was the day I thought my license would be coming back to me, because they made the point quite clear that if I didn’t go get those two things, they were -- that they were going to take it. [ 69 ] Further, at page 15, Mr. Taylor stated as follows: Well, that’s the point that I was making in the beginning there.

I got the letter stating that if I didn’t go and get my eye exam and my letter from -- for sobriety from my addictions counsellor at the Waterford that they were going to suspend my license and it says it on that letter and nobody mentioned it to me. [ 70 ] Mr. Taylor’s evidence reveals he made an erroneous assumption that his licence had been returned based upon advice related to an administrative suspension.

There was no suggestion in that document that the advice related to a Court-ordered Criminal Code driving prohibition and he made no further inquiry of an appropriate official. [ 71 ] While counsel were unable to provide me with any similar cases from this jurisdiction, courts in other provinces have considered this defence in somewhat similar circumstances. These cases provide support for the position that, in order to establish the excuse of officially induced error, an accused must show that he or she sought specific advice with respect to the driving suspension or prohibition at issue.

It is not sufficient to merely show that the accused misapprehended actions or statements from a government agency responsible for administration of licensing and registration without making further and specific inquiry. [ 72 ] In the case of R. v. Liptak , 2009 ABPC 342 , the accused was subject to a section 259(1) Criminal Code driving prohibition when she unexpectedly received an Alberta operator’s licence in the mail. Similar to Mr. Taylor, she was pulled over by the Calgary Police Service who then discovered that she was prohibited from driving. Ms.

Liptak explained that she thought that when she received the operator’s licence in the mail she was entitled to drive again. [ 73 ] Ms. Liptak and her counsel initially attempted to raise the argument of an officially induced error but abandoned it during submissions. Nevertheless, Judge Fradsham commented on the applicability of officially induced error at paragraphs 10 and 11 as follows: 10 I find that the accused was informed on January 24, 2008, that she was prohibited from operating a motor vehicle on any street, road, highway, or other public place anywhere in Canada for a period of one year.

If at some point she formed the erroneous opinion that she was only prohibited from operating a motor vehicle while she was not in physical possession of an Operator's Licence, and that upon receipt of an ostensibly valid Operator's Licence she was again entitled to operate a motor vehicle, then she made a mistake of law which does not assist her. 11 With the abandonment of the "officially induced error" defence, the fact that the accused, in very late January, 2008, received an ostensibly valid Alberta Operator's Licence provides no defence to the charge currently before me, and, for practical purposes, is irrelevant. [ 74 ] In R. v.

Schellenberg , 2002 BCSC 177 , the trial judge dealt with a charge of driving while the accused was under an administrative suspension as opposed to a court-ordered prohibition. However, the principles from that case are equally applicable here.

The trial judge refused to accept the excuse of officially induced error of law in a situation where an accused had come to an incorrect conclusion that his suspension would only come into effect once he turned in his licence. [ 75 ] The accused relied upon the wording of the notice requiring him to sign and forward the acknowledgement and surrender his driver’s licence to the Insurance Corporation of British Columbia. Mr.

Schellenberg gave evidence that, based on that wording and earlier situations involving both he and his brother, he understood that the prohibition did not commence until the driver’s licence was surrendered. The trial judge held that Mr. Schellenberg was willfully blind as further inquiry was required. [ 76 ] On appeal, Joyce, J., of the British Columbia Supreme Court agreed with the trial judge that the circumstances did not provide a defence.

The accused’s mistake of law was no defence to the charge as there was no suggestion that any official dealt with the appellant in any way so as to cause him to be mistaken about the immediate effect of the notice of suspension. [ 77 ] Finally, in the Ontario Court of Justice case of R. v. Osborne (2002), 39 M.V.R. (4th) 35, 55 W.C.B. (2d) 260 (Ont. Ct. J.) , the accused was under a court ordered driving prohibition as part of his sentence for impaired driving. He had been sentenced in British Columbia and relocated to Ontario one month later. [ 78 ] The evidence at trial indicated that Mr.

Osborne had applied for an Ontario driver’s licence and received one. The Ontario licensing authorities did not appear to be aware of the Canada-wide conviction. A few months later, Mr. Osborne’s vehicle went off the road. A police officer who attended at the scene charged him with driving while disqualified but the charge was withdrawn. After the charge was withdrawn, Mr. Osborne applied for and received yet another Ontario driver’s licence. Less than two months later he was pulled over, with an officer again discovering that he was under a Canada-wide driving prohibition. [ 79 ] Mr.

Osborne testified that he thought the prohibition or suspension only applied in British Columbia. He was further of the view that his first charge was “thrown out” because there was insufficient evidence about him being charged in British Columbia. He said he checked with the Ontario Ministry of Transport after the first charge was dismissed and confirmed there were no suspensions. As a result, he received another driver’s licence. He said he therefore thought the prohibition was no longer valid.

On that understanding, he arranged for insurance and resumed driving. [ 80 ] The trial judge did not accept the excuse of officially induced error. He found that Mr. Osborne knew or should be deemed to have known that:

a) he had been prohibited from operating a motor vehicle on all streets, roads, highways or public places,

b) this order applied Canada-wide, and

c) this order was still in effect. [81] The trial judge noted that the accused had been present to hear the order orally, he signed the order and admitted he was awareof the order. Further, the trial judge found that, even if Mr. Osborne did not have actual knowledge that the order was to apply Canada-wide, this was a mistake of law. [82] The fact that the Ontario Ministry of Transport issued him a licence on two different occasions did not assist in his defence. His statement that he thought the British Columbia order must have been thrown out was, at most, wishful thinking.

The accused wasaware that there was no appeal, and there was no action by any official, including the licensing personnel in Ontario, that would raise orleave a reasonable doubt on the continuing effect of the driving prohibition. [83] The trial judge differentiated the facts before him from another decision of the Ontario Provincial Court in R v. Fisher (1991),30 M.V.R. (2d) 234, 13 W.C.B. (2d) 194 (Ont. Ct. J. (Prov. Div.)), in which the court found reliance on an officially induced error oflaw.

In that case, the accused had attended at a licence bureau to determine how long he would have to wait to obtain a driver’s licenceafter a court-ordered driving prohibition. He was told he could do so at once. He then double-checked with the Ministry ofTransportation in Toronto and received the same information in a letter on Ministry letterhead together with return of his driver’slicence. However, Mr. Fisher did not stop there. He then visited the Peterborough Police Force who contacted the suspension controlcentre at the Ministry of Transportation.

That centre provided the police with a letter stating that there was no authority in law for thedriving prohibition which had been ordered by the judge as part of the accused’s initial sentence and that the administrative suspensionhad also been lifted. The police provided this letter to the accused. [84] In this case, as in Osborne, Mr. Taylor had in his possession a licence that appeared to be facially valid and he had insurance onhis vehicle. However, that does not make his reliance any more reasonable. It is also notable that Mr.

Taylor, in his evidence, at no timeindicated when or how he received his licence. He also gave no evidence as to when it was he was able to place insurance on hisvehicle. Even if these events occurred after the August 5, 2016 letter, a return of a licence and placement of insurance without a specificinquiry as to the effect of the Canada-wide driving prohibition does not establish that Mr. Taylor reasonably relied on advice. He madeno specific inquiry tailored to his particular situation. [85] Mr.

Taylor could have and should have made that specific inquiry as to whether his Canada-wide one-year driving prohibitionthat he had signed and was aware of remained in force. There were several government officials of whom he could have easily madethese inquiries, including Motor Vehicle Registration, the Provincial Court, the RNC and the Crown. It was not reasonable for Mr.Taylor to have relied on a mistaken assumption that a statement in a reminder notice relating to a potential suspension for medicalsuitability meant that his Canada-wide driving prohibition had been somehow reversed or thrown out.

He ought to have taken steps toascertain the law as it related to the Prohibition Order. [86] In the circumstance of this case, Mr. Taylor may have had an honest but mistaken belief that he was in compliance with the lawbut that does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused (R.v. Molis, (SCC), [1980] 2 S.C.R. 356). To avoid a conviction based on this belief, he must show reasonable reliance onspecific advice from an appropriate official.

As such, the trial judge erred in law in respect of his finding in respect of the sixth criteria. [87] Overall, I find that the trial judge erred in law and in mixed fact and law in identifying and applying the legal test for anofficially induced error of law. Mr. Taylor did not demonstrate that he made a specific inquiry as to whether the Prohibition Orderremained in effect. Motor Vehicle Registration provided no advice on this legal issue. At best, Mr. Taylor relied on an honest butmistaken misunderstanding of the documents he received relating to another issue.

Any reliance on that documentation was notreasonable without making further inquiry of an appropriate official. [88] While not relevant to the final determination of this appeal in light of my finding that the excuse of officially induced error wasnot established, I note that, if that excuse had been established, the appropriate order after trial would have been to enter a judicial stay ofproceedings rather than an acquittal.

As noted by Lamer, C.J. in Jorgensen, officially induced error of law does not act as a full defence. [89] In respect of the proper procedure, Lamer, C.J. stated at paragraph 37 of Jorgensen: As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses ratherthan justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed tothe actor. (See R. v.

Mack, (SCC), [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment, the accused hasdone nothing to entitle him to an acquittal, but the state has done something which disentitles it to a conviction (Mack, at p. 975). Likeentrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings ratherthan an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument willonly be successful in the clearest of cases.

CONCLUSION [90] For the reasons set forth above, in accordance with the powers given to this Court as a

summary conviction appeal court undersection 834(1) of the Criminal Code, I reverse the decision of the trial judge acquitting the accused. [91] As the trial judge correctly determined, based on uncontroverted evidence, that the Crown had proven the requisite elements ofthe offence, this is an appropriate case in which to enter a verdict of guilty to the charge of driving while disqualified contrary to section259(4) of the Criminal Code. It is clear that the trial judge would have found Mr. Taylor guilty but for the errors relating to officially

induced error of law. As the two other counts of breaches of probation contrary to sections 733.1(1) are predicated on the first count, verdicts of guilty are entered on those two counts as well. The matter is remitted to the trial judge for sentencing. ______________________ ROSALIE McGRATH Justice