R. v. NazielR. v. Naziel Date:, 2017 BCPC 427

Citation: R. v. NazielR. v. Naziel Date: 20171030 2017 BCPC 427 File No: 24416-2-C Registry: Smithers, B.C. IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WALLACE JACK NAZIEL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Feinberg, L. Counsel for the Defendant: McCarthy, J. Place of Hearing: Smithers , B.C. Date of Hearing: June 27, 28, September 15, 2017 Date of Judgment: October 30, 2017 Introduction [ 1 ] Wallace Jack Naziel (“Mr. Naziel”) is before the court on Information 24416-2-C charged with the following offences under the B. C. Motor Vehicle Act , RSBC, 1996, c. 318 (“ MVA ”) and the Criminal Code , RSC 1985, c. C-46 (“CC”):

Count 1: Section 252(1)(

a) CC: failure to stop at the scene of an accident with person Count 2:

Section 267(

b) CC: assault causing harm Count 3: Section 259(4) CC: operating a motor vehicle while disqualified Count 4:

Section 95 MVA: driving while prohibited [2] All offences are alleged to have occurred on September 14, 2016, at or near Moricetown, B.C. Johnny Morris says that day hewas hanging out with Wallace Naziel, Valerie Naziel and Matias Morris. For about one hour in the late afternoon Mr. Naziel wasdriving his three passengers in his blue mini-van (the “vehicle”) in the Moricetown area. They were all drinking alcohol and Mr. Morriswas intoxicated. [3] As the vehicle approached the Health and Wellness Centre on Beaver Road in Moricetown, Mr. Morris decided he wanted toget out and go home. The driver stopped, Mr.

Morris got out and walked in front of the vehicle. Mr. Morris says when he left thevehicle, Mr. Naziel was driving. Within a minute, Mr. Morris was hit by the vehicle and flew five feet towards the ditch. He got up andwatched the vehicle drive away. Mr. Morris suffered pain in his tail bone as the result of being hit. [4] At the time of this incident, Mr. Naziel was disqualified from driving pursuant to s. 259(1) of the Criminal Code and prohibitedfrom driving under s. 251(4) of the MVA. Issues: [5] The salient issues raised in this case are as follows: 1. Has Crown proven beyond a reasonable doubt that Mr.

Naziel was the driver of the vehicle at the time of the incident givingrise to these charges against him; 2. If Mr. Naziel was the driver, did he intend to leave the scene to escape civil or criminal liability? 3. If Mr. Naziel was the driver, did he intentionally strike Mr. Morris with the vehicle? 4. Did Mr. Morris suffer bodily harm as a result of being struck by the vehicle? The trial [6] Information 24416-2-C came before me for trial on June 27 and 28, 2017, and September 15, 2017.

The Crown called threewitnesses, the Complainant, Johnny Morris, the investigating officer, Corporal Delwisch and eye witness, J.B.

The Crown also tenderedin evidence the following four exhibits: Exhibit 1: Certificate of Superintendent certifying that Wallace Jack Naziel was prohibited from driving a motor vehicle during theentire day of September 14, 2016 under s. 251(4) of the Motor Vehicle Act; Exhibit 2: Certificate of the Superintendent certifying that Wallace Jack Naziel was disqualified from driving for the entire day ofSeptember 14, 2016, by reason of being disqualified on September 2, 2016, pursuant to s. 259(1) of the Criminal Code; Exhibit 3: Affidavit of Sheena Bartel, the Manager of Health Information Services for the Northern Health Authority attaching as anexhibit the First Responder Report and B.C.

Ambulance Patient Care Report, from September 14, 2016; and Exhibit 4: Sketch drawn by J.B. while testifying. [7] Mr. Naziel did not call evidence on behalf of the defence. [8] Upon the conclusion of the trial, the Crown and Defence made submissions and provided the Court with case authorities. TheCrown’s authorities included: (

a) R. v. Brooks, (1988), (BC CA), 41 C.C.C. (3d) 157 (BCCA); (

b) R. v. F. (K.J.),2009 BCCA 344; (

c) R. v. Ford, 1997 CarswellOnt 533; (

d) R. v. Hale, 2013 ABQB 655; (

e) R. v. Seipp, 2017 BCCA 54; (

f) R. v. Tatton,2015 SCC 33; and (

g) R. v. Winkler, 2008 BCPC 269. The Defence authorities included: (

a) R. v. Colby, 1989 ABCA 285;(

b) R. v. Adler, 1981 CarswellSask 130; (

c) R. v. Turnbull, 1993 CarswellOnt 2338; and (

d) R. v. Pannabecker, 2015 ONSC 1735. Mr. Morris’ evidence [9] Johnny Lee Morris is 29 years old. He has lived in Moricetown, B.C. off and on throughout his life. Mr. Morris has knownMr. Naziel since he was young. [10] In the late afternoon of September 14, 2016, Mr. Morris met up with Wallace Naziel, Valerie Naziel and Matias Morris. Theywere “hanging out” in Mr. Naziel’s “bluish minivan.” Mr. Morris did not recall if he had been in that vehicle previously. [11] Mr.

Morris only has a vague memory of meeting up with Wallace Naziel, Valerie Naziel and Matias Morris on September 14,2016, because he was already under the influence of alcohol when he ran into them. In fact, all four had been drinking. Mr. Morriscould not say how much Mr. Naziel or the other two passengers had to drink. Although he seemed drunk to Mr. Morris, Mr. Naziel wasnot so drunk as to be driving off the road. [12] For about an hour or so in the late afternoon of September 14, 2016, Mr. Naziel was driving Mr.

Morris, Valerie Naziel andMatias Morris around the Moricetown area, which included the Telkwa Highroad on the outskirts of Moricetown, B.C. and Beaver Road,within the Moricetown village itself. Corporal Delwisch testified that both Beaver Road and Telkwa Highroad are public highways for

the purpose of the MVA . [ 13 ] Mr. Morris was intoxicated, having consumed over a bottle of vodka, as was his habit. Mr. Morris described his level of intoxication on September 14, 2016, as normal “like an everyday thing.” Mr. Morris admits the amount of alcohol he consumes affects him a lot, both mentally and physically. [ 14 ] As they approached the Moricetown health centre and fire department Mr. Morris wanted to leave the vehicle and head home. The driver stopped and Mr. Morris got out from the rear driver’s side passenger’s seat where he had been sitting. Once out of the vehicle, Mr.

Morris began walking on Beaver Road and crossed in front of the vehicle towards the Moricetown multiplex which houses the Moricetown Band office. [ 15 ] Mr. Morris says that just prior to leaving the vehicle, he told its occupants he wanted to get out and head home. He was not unhappy. He opened the rear sliding doors, got out on the right side of the road and crossed in front of the vehicle towards the multiplex. He does not recall having a conversation with anyone after he left the vehicle before he was hit. [ 16 ] When asked if he made any menacing gestures towards Mr. Naziel before he was hit, Mr.

Morris said “I don’t recall - I may have.” He denies hitting Mr. Naziel or wanting to fight him. [ 17 ] Mr. Morris could not recall talking to anyone between the time he left the vehicle and the time he was hit. He concedes he might have talked to someone, but could not recall. Mr. Morris emphatically denies that any of the other occupants got out of the vehicle after him; Mr. Morris also emphatically denies kicking the front of the vehicle. [ 18 ] When Mr. Morris got out, the vehicle was in park and Mr. Naziel was sitting in the driver’s seat. Mr. Morris has known Mr.

Naziel for years and identified him in court as the person who was driving the vehicle before he was hit. Mr. Morris did not see who was driving at the precise moment he was hit because he had turned his back to the vehicle and was walking up Beaver Road. [ 19 ] Mr. Morris said he was hit less than a minute after he got out of the vehicle, so there was no time for Mr. Naziel to switch positions with another occupant. Mr. Morris believes Mr. Naziel was the only person who could have been driving the vehicle at the time he was hit. [ 20 ] Mr.

Morris was unsure whether he had been hit by the centre or the right side of the front of the vehicle. When hit, Mr. Morris flew five feet “and then it was like sliding to home plate in a baseball game.” [ 21 ] Mr. Naziel drove off in his vehicle immediately after Johnny Morris was hit. Mr. Morris saw the vehicle drive away. When Mr. Morris got up from the ditch, the vehicle was gone. Mr. Morris walked to the multiplex where there were bystanders who provided him with assistance. One of these people called the police and the ambulance. [ 22 ] The ambulance transported Mr.

Morris to the Bulkley Valley District Hospital in Smithers, which is a 25 minute drive from Moricetown. When he reached the hospital the emergency room physician x-rayed and assessed Mr. Morris’ lower back. As Mr. Morris had not sustained any fractures, he was released from the hospital approximately 45 minutes after he arrived with a prescription for the anti-inflammatory medication Naproxen. [ 23 ] Mr. Morris had a pre-existing injury to his C6 and C7 vertebrae near the base of his neck. [ 24 ] Mr. Morris experienced pain and soreness in his tail bone area which persisted for a week or two.

To this day, he continues to experience intermittent pain in the rear buttock near the tail bone area. Mr. Morris says this intermittent pain is a result of being hit by the vehicle on September 14, 2016. [ 25 ] Mr. Morris said neither he nor Mr. Naziel wanted this incident to happen. He attributed it to their level of intoxication at the time. Corporal Delwisch’s evidence [ 26 ] Corporal Kimberly Baird Delwisch is a longstanding member of the Smithers detachment of the Royal Canadian Mounted Police. Moricetown, B.C. is within Smithers RCMP detachment’s catchment area. Corporal Delwisch has known both Mr.

Naziel and Mr. Morris for some time. She has interacted with them when they were intoxicated and when they were sober. [ 27 ] At 7:05 p.m. a member of the Moricetown Band Counsel called the RCMP to report that Mr. Morris had been hit by a vehicle being driven by Wallace Naziel, that Mr. Morris was limping, not unconscious. Corporal Delwisch responded to the dispatch and arrived at the Moricetown Band Office at 205 Beaver Road at 7:35 p.m. Upon her arrival Corporal Delwisch observed Mr. Morris sitting on the front steps of the Moricetown Band Office and had a brief conversation with him.

Corporal Delwisch, who has known Mr. Morris for over 15 years, described Mr. Morris as “obviously somewhat intoxicated”; his speech was “somewhat slurred” and he appeared “slightly agitated” and wanted to take off his neck brace put on by the first responders. [ 28 ] Upon her arrival at the scene, Corporal Delwisch encountered a number of people in the front entrance to the Moricetown Band Office. Corporal Delwisch took audio statements from three witnesses: J.B., Tammy Michelle and Vivian Lewis. Corporal Delwisch arranged for Constable Heuberger to take a statement from Mr.

Morris at the Bulkley Valley District Hospital when it was possible to do so. [ 29 ] At 8:18 p.m. on September 14, 2016, Corporal Delwisch arrested Wallace Naziel at his parent’s residence in Two Mile. She described Mr. Naziel as being highly intoxicated; he emanated an extremely strong odour of alcohol; his speech was very slurred and he had difficulty pronouncing his words. Corporal Delwisch had difficulty understanding him. J.B.’s evidence

[30] J.B. is 14 years old and resides in Moricetown and attends Smithers Senior Secondary school. He knows Mr. Morris and Mr.Naziel. [31] J.B. observed Mr. Morris being hit by a vehicle on September 14, 2016 in the vicinity of the Moricetown Band Office onBeaver Road in Moricetown, B.C. He believes the incident occurred around 6 p.m. as it was still bright out. [32] While walking up to the Moricetown Band office, J.B. saw the vehicle in which Johnny Morris was a passenger stop on BeaverRoad about 60 feet from where he was standing.

Johnny Morris got out of the rear driver’s side of the vehicle and began talking to thedriver through the open driver’s side window. Although he could not hear what they were saying, it appeared to J.B. they were having arow. [33] Mr. Morris went to the front of the vehicle and kicked the bumper. A woman, who J.B. did not recognize, got out of the frontpassenger side of the vehicle, exchanged angry words with Mr. Morris for a couple of minutes and returned to the front passenger’s seat. [34] After arguing with the female passenger, Mr. Morris started walking towards the Moricetown Band Office. Mr.

Morris hadonly gone five feet when the vehicle backed up, then spun out, lurched forward and hit him. Although he was facing the passenger sideof the vehicle, J.B. was standing on a hill at such an angle he could see through the open driver’s side window sufficiently clearly tomake out the driver was a male wearing a white muscle shirt. J.B. did not get a good look at the driver’s face. For example, he could notsee the driver’s hair. After Mr.

Morris was hit, the vehicle eased to a stop, backed up about eight feet and then drove off up the hill. [35] J.B. did not see the driver switch positions with anyone else in the vehicle. [36] J.B. believed it took minutes between the time Mr. Morris got out of his vehicle and the time he was hit by the vehicle and “sentflying”. Mr. Morris was hit by the right side of the front bumper. J.B. estimates the vehicle was going 20 when Mr. Morris was hit. Mr.Morris did not call out. [37] J.B. produced a sketch which was entered into evidence as Exhibit 4, indicating what part of the vehicle hit Mr.

Morris andwhere J.B. was standing in relation to the vehicle. [38] Immediately after he was hit, Mr. Morris got up and asked J.B. and others if they had seen him get hit. The vehicle that hit Mr.Morris backed up and drove off up Beaver Road. [39] J.B., or one of the other bystanders, called the police. [40] J.B. did not see any injuries on Mr. Morris. Issue # 1: Has the Crown proven beyond a reasonable doubt that Mr. Naziel was the driver of the vehicle at the time of the incidentsgiving rise to these charges? Assessing reasonable doubt [41] All the offences with which Mr.

Williams has been charged require the Crown to prove the essential elements beyond areasonable doubt. In R. v. W. (D), , the Supreme Court of Canada provided the trial Courts with an analytical frameworkto assess reasonable doubt in the context of a criminal trial. In his paper, Doubt about Doubt: Coping with R. v. W(

D) and CredibilityAssessment, Professor David Paciocco, now Ontario Court Justice Paciocco, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [42] Where, as in this case, the defence has not called evidence, any evidence inconsistent with guilt would necessarily arise in thecontext of the Crown’s case.

Assessing Credibility and Reliability [43] The keystone issue in this case is whether the Court is satisfied beyond a reasonable doubt Mr. Naziel was driving the vehicle atthe time it hit Mr. Morris. In order to decide this issue, I must assess the reliability and credibility of the evidence before me. In doingso, I can accept all, some or none of a witness’s evidence. [44] In order to assess the reliability of a witness’s evidence, I must assess his or her ability to perceive, recall and communicate theevidence.

In order to assess the credibility of each a witness, I must consider a number of factors, including: (

a) the internal consistencywith other parts of the witness's evidence given at trial; (

b) the consistency of the witness’s account over time; (

c) the externalconsistency of the evidence with that of other credible witnesses; (

d) any independent physical or documentary evidence; (

e) the inherentplausibility of the evidence; (

f) the ”balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright; and(

g) to a lesser extent, the attitude and demeanour of the witness. Corporal Delwisch

[ 45 ] Corporal Delwisch’s evidence was uncontested. I find her to be a reliable and credible witness. Police officers are trained to observe and remember and to record their observations. I accept without hesitation that Mr. Naziel and Mr. Morris were intoxicated to the degree Corporal Delwisch described. J.B. [ 46 ] I find J.B. a reliable and credible witness, with one caveat: I do not accept that prior to having been hit by the vehicle, Mr. Morris argued for two minutes with its driver and then two minutes with the female passenger.

Lay witnesses, particularly young people, are notoriously inaccurate estimating time. I am satisfied; however, after leaving the vehicle, Mr. Morris exchanged angry words with the driver and female passenger. I also accept Mr. Morris kicked the front of the vehicle prior to being hit. Johnny Morris [ 47 ] The Defence submits that because he was grossly intoxicated at the time, Johnny Morris is a wholly unreliable witness. In this regard, the Defence points to the following: a. Mr.

Morris has only a vague recollection when and where he met up with Wallace Naziel, Valerie Naziel and Matias Morris on September 14, 2016; b. Mr. Morris has no recollection of speaking with anyone between the time he left the vehicle and the time he was hit; c. Mr. Morris denies arguing with the driver or the female passenger after he left the vehicle; d. Mr. Morris denies that any other occupant got out of the vehicle after him; and e. Mr. Morris denies kicking the front of the vehicle. [ 48 ] The Defence submits it would be rash for the Court to accept Mr. Morris’ evidence that Mr.

Naziel was driving at the time Mr. Morris was hit. Although it is less risky for the Court to conclude Mr. Naziel was driving at some other time on September 14, 2016, the Crown’s evidence as to the driver’s identity does not amount to proof beyond a reasonable doubt. [ 49 ] I do not find Mr. Morris was grossly intoxicated at the time of the incident. Corporal Delwisch, who knew Mr. Morris and Mr. Naziel, described Mr. Morris as “somewhat intoxicated” and Mr. Naziel as “highly intoxicated.” Corporal Delwisch was sufficiently satisfied with Mr. Morris’ account of what happened to arrest Mr.

Naziel later that evening for leaving the scene of an accident and assault with a weapon. [ 50 ] Defence counsel points to Mr. Morris attempting to remove his neck brace as an alcohol infused irrational act. Given his evidence he had a pre-existing injury to his C6 and C7 vertebrae at the base of his neck, Mr. Morris ought to have been at least asked in cross-examination why he tried to remove his neck brace. [ 51 ] Mr. Morris said he drank over a bottle of vodka. He did not say and was not asked the volume of the bottle. I gather Mr.

Morris is a seasoned drinker and although he admits that alcohol significantly affects him physically and mentally, there is no evidence Mr. Morris was intoxicated to the point of blacking out. Mr. Morris was able to remember: a. what he was doing on September 14, 2016: he was riding around in Mr.

Naziel’s bluish mini-van drinking alcohol with Wallace Naziel, Valerie Naziel and Matias Morris; b. where the vehicle was travelling: around and about Moricetown area including on Beaver Road and the Telkwa High Road; c. how long the vehicle had been travelling: for about an hour. d. where he was seated in the vehicle: the rear passenger seat behind the driver; e. what happened after he left the vehicle: he started walking up Beaver Road.

He walked in front of the vehicle, at which time the front of the vehicle hit him in his rear buttocks and pelvic area; f. what happened after he was hit: he went flying about five feet into the ditch; he got up and walked up to the Moricetown band office where he was aided by some bystanders; g. what he saw after he was hit: he saw the vehicle drive away; h. how he was treated after he was hit: he was transported from the Moricetown band office to the Bulkley Valley District Hospital by ambulance; and i. what happened at the hospital: Mr. Morris was assessed and x-rayed at the hospital.

About 45 minutes later, he was released with a prescription for Naproxen. [ 52 ] J.B., who observed Mr. Morris immediately before and after Mr. Morris was hit by the vehicle, did not mention and was not asked about Mr. Morris’ level of intoxication. [ 53 ] The Patient Care Report notes Mr. Morris’ alcohol consumption, but under “Mental Status”, the paramedics checked off: “normal,” “oriented - person” and “oriented time.” The First Responder Report does not indicate Mr. Morris’ level of intoxication. [ 54 ] I found Mr.

Morris to be a fair and forthright witness whose ability to accurately recall the events which transpired on September 14, 2016, were compromised by his alcohol consumption at the time and since. Nevertheless, I do not find the frailty of

Mr. Morris’ memory so severe as to render his evidence as to who was driving the vehicle unreliable. Mr. Morris has known Mr. Nazielfor years. He displayed no animus toward Mr. Naziel. Mr. Morris was unequivocal that on September 14, 2016, he was riding inWallace Naziel’s vehicle and it was Wallace Naziel who was driving the vehicle. Mr. Morris was unchallenged on this evidence. Theonly time it was ever suggested to Mr. Morris that someone other than Mr. Naziel was driving the vehicle was when Defence Counselasked Mr. Morris if it was possible Mr. Naziel switched seats with another occupant between the time Mr.

Morris left the vehicle and thetime he was hit by the vehicle. Mr. Morris responded that it was unlikely to have occurred because he was hit in less than a minute ofleaving the vehicle. [55] I accept Mr. Morris’ evidence that it was Mr. Naziel who was driving the vehicle on September 14, 2016, both before and at thetime Mr. Morris was hit. J.B., who was observing the incident from 60 feet away, did not notice the driver switching positions with anyother occupant in the vehicle.

The suggestion is completely speculative and is not one that the Crown needed to negate: see R. v.Villaroman, 2016 SCC 33 at paras. 36–38. Legal Framework: [56] It is the Crown’s burden to prove each and every element of the offence for which Mr. Naziel charged. The static elementsinclude the identity of the accused as the person alleged to have committed the offence, jurisdiction of the court over the person accused,and the timing of the offence.

The elements of the individual offences are found in the relevant sections of the Criminal Code and theMotor vehicle Act, which I have reproduced below for ease of reference. Count 1: Section 252(1)(

a) CC: Failure to stop at the scene of an accident with person [57] Mr. Naziel is charged with failing to stop at the scene of an accident contrary to s. 252(1) CC, which states, in part: 252

(1) Every person commits an offence who has the care, charge or control of a vehicle . . . that is involved in an accident with (

a) another person, . . . and with intent to escape civil or criminal liability fails to stop the vehicle . . . give his or her name and address and, where any personhas been injured or appears to require assistance, offer assistance. . . .

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle . . . offer assistance where any person hasbeen injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of anintent to escape civil or criminal liability. [58] In R. v.

Basra, 2015 BCSC 1075 , at para. 31, Justice Verhoeven succinctly set out the elements of the offence under252(1) as follows: [31] For the purposes of this case, the basic elements of the offence under s. 252(1) are as follows: 1. the accused had the care, charge or control of a vehicle; 2. the vehicle was involved in an accident; 3. the accident was with another person; 4. the accused failed to (1) stop the vehicle; (2) give his name and address, and (3), where any person has been injured or appearsto require assistance, offer assistance; and 5. the accused failed to do these things with intent to escape civil or criminal liability. [59] Judge Verhoeven goes on to state at para. 34: 34.

Section 252(1) is a specific intent offence, requiring proof beyond a reasonable doubt of mens rea as follows: 1. that the accused knew he was involved in an accident (in the circumstances of this case) with another person; and 2. that the accused failed to stop, give his or her name and address and render assistance if needed, in order to escape civil orcriminal liability. (See R. v. Hatcher, (ON SC), [Hatcher] at para. 35). [60] R. v. Seipp, 2017 BCCA 54 , is a recent decision of the B.C. Court of Appeal on s. 252(2).

Madam Justice Bennett, forthe unanimous Court, sets out a driver’s obligations under s. 252(2). She states at paras. 30 & 31: [30] Section 252(2) requires a driver who is involved in an accident to: (

i) stop, (ii) give their name and address, and (iii) offer assistanceif a person appears injured or in need of assistance. A driver is required to complete all three steps. Proof of failure to perform any oneof these three acts will trigger a rebuttable presumption with respect to the driver’s intent. See R. v. Roche, (SCC), [1983] 1 S.C.R. 491 at paras. 496-97. The evidence need only raise a reasonable doubt that the driver did not have the requisiteintent. See R. v.

Proudlock, (SCC), [1979] 1 S.C.R. 525 at 551. [31] Therefore, failure to perform any of the three requirements is sufficient to form the actus reus of the offence and trigger thepresumption of intent to escape criminal or civil liability. The mens rea may be proved by the presumption of intent in the absence of

evidence to the contrary. [61] Before the Court can convict the accused under s. 252(1)(

a) the Crown must prove the accused was aware he had been involvedin an accident at the time that he failed to stop at the scene of the accident. In other words, the accused cannot be convicted of an offenceunder s. s. 252(1)(

a) if he leaves the scene of an accident but only later realizes his vehicle had been involved in an accident: See R. v.Wong, 2017 BCSC 646 , at para. 45, where Judge Abrioux references R. v. Slessor, (ON CA). [62] In Seipp, the Court of Appeal cited R. v. Sanford, 2014 ONSC 3164, for the proposition that liability for driving while theaccused's licence is suspended falls within the meaning of “civil or criminal liability.” In Sanford, Justice Hill concluded the accusedleft the scene of an accident to avoid detection as a suspended driver.

At para. 73 of Sanford, Justice Hill noted the correlation betweenaccidents and suspended drivers as well recognized: [73] In a particular case of non-compliance with the duties described in s. 252 of the Code, an accused may seek to point to evidence ofthe driver’s motive for leaving the accident scene as avoidance of detection as a suspended driver, arguing that this amounts to evidenceto the contrary inconsistent with an intention to escape civil or criminal liability in the circumstances of the accident. I disagree.

Asuspended driver remaining at the scene of a serious accident where the police are bound to attend will inevitably lead to discovery of thedriver’s unlicensed status and exposure to liability for the s. 259(4) crime of driving while disqualified. The correlation betweenaccidents and suspended drivers is well recognized: R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, at paras. 46-7.While authorities from various provincial jurisdictions are not unanimous on the point, I agree with the observations of Borins J. (as hethen was) in R. v. Benson, [1987] O.J. No. 1493 (Dist.

Ct.), at p. 3: As I understand the defence, the reason why the defendant did not comply with his statutory duties is to be found in what he told thepolice. His motivation in leaving the accident, it is submitted, was totally unrelated to any civil or criminal liability to which he might besubject arising from the accident. It is argued that he left the scene to avoid prosecution for driving while his licence was suspendedbecause he had not paid certain fines.

It is submitted that this constitutes evidence to the contrary within the meaning of Section 236(2)and prevents the Crown from relying on the provisions of that subsection. I do not agree. In my view, civil or criminal liability should be broadly interpreted to include any liability, civil or criminal, which might properly arisefrom the operation of a motor vehicle by the defendant at the time that an accident takes place. This is what I meant when I statedin Regina v.

Riopka (1987), 1 W.C.B. (2d) 50, "that the 'civil or criminal liability' referred to in section 236(1) must be in relation to theaccident in issue." I found in that case that the accused had failed to comply with the requirements of section 236(1) in order to avoidbeing investigated for theft. Thus, for example, a particular fact situation resulting in an accident could bring about the commission of anumber of driving related offences, such as criminal negligence, failure to provide a breath sample and driving without a licence.

In suchcircumstances, evidence that the defendant failed to remain at the scene of the accident to avoid prosecution for any one of theseoffences would not constitute evidence to the contrary, such as to prevent the prosecution from relying on the provisions of section236(2). Liability that could arise from this accident includes liability for driving while the defendant's licence was under suspension.

Asan intent to escape liability for driving while his licence was under suspension comes within the meaning of "civil or criminal liability" insection 236(1), this does not constitute evidence to the contrary within the meaning of section 236(2). Had the defendant not beendriving when his licence was under suspension (as, by law, he was required not to do), this unfortunate accident may not have occurred. Intoxication and specific intent [63] Because s. 252(1) is a specific intent offence, the presumption under s. 252(2) can be negated by evidence of intoxication: R. v.Colby, 1989 ABCA 285 , at para. 16; R. v.

Adler, 1981 CarswellSask 130; R. v. Pannabecker, 2015 ONSC 1735, at para. 27,citing R. v. Nolet (Charette) (1980), 4 M.V.R. 265 (Ont. C.A.). More recently, the B.C. Court of Appeal in R. v. K.J.F., 2009 BCCA344, considered the impact of impairment on the evidentiary presumption set out in s. 252(2). Madam Justice Saunders, cited withapproval the following passage in R. v. Sadler, 2008, BCCA 491: 28 Section 252(2) creates a rebuttable presumption that an accused intends to escape civil or criminal liability by leaving the scene of anaccident.

Evidence to the contrary that is not rejected by the trier of fact may rebut that presumption. Case law interpreting this sectionconfirms that “evidence to the contrary” does not shift the burden of proof to an accused. Rather, it provides a basis whereby evidencewhich tends to show that an accused may not have possessed the specific intent required will support an acquittal verdict. . . .

In contrast,evidence of impairment that does not amount to substantial or advanced intoxication will not be sufficient, on its own, to negate thepresumption of specific intent for the purpose of rebutting the presumption in s. 252(2) . . . [citations omitted] [64] In R v Hale, 2013 ABQB 655 , para. 16, Justice Ross of the Alberta Court of Queen’s Bench stated for the AlbertaCourt of Appeal: [16] I agree with the Appellant that evidence of intoxication does not have to reach the level of evidence of incapacity to form intent inorder to be considered in evidence to the contrary.

The issue is not whether the Appellant lacked capacity, but whether the evidence ofintoxication and other evidence tended to negative an intent to escape civil or criminal liability. However, it is also clear that evidence ofintoxication alone will not necessarily be sufficient to rebut the presumption and raise a reasonable doubt regarding intent.

As statedin Sadler, at para 28, “evidence of impairment that does not amount to substantial or advanced intoxication will not be sufficient, on itsown, to negate the presumption of specific intent for the purpose of rebutting the presumption in s. 252(2).” Issue #2: Did Mr. Naziel leave the scene to escape civil or criminal liability? [65] In this case the evidence is clear that Mr. Morris was hit by the vehicle in which he had just been a passenger. I have alreadyfound Mr. Naziel was driving the vehicle at the time Mr. Morris was hit. Mr. Naziel did not (

a) stop the vehicle; (

b) give his name andaddress, and (

c) offer assistance. Both Mr. Morris and J.B. saw the vehicle drive off. [66] Mr. Morris was hit by the front right side of the vehicle and thrown five feet into a ditch. Mr. Naziel stopped the vehicle after ithit Mr. Morris, then backed up and drove up Beaver Road. I am satisfied Mr. Naziel was aware his vehicle hit Mr Morris. Mr. Nazielhad just stopped to let Mr. Morris out of the vehicle, after which they argued by the open driver’s side window. Mr. Morris then kicked

the front of the vehicle and then argued with the female passenger who had got out of the vehicle to speak with him. I have no doubt Mr.Naziel was aware of Mr. Morris’ presence in front of the vehicle. [67] After Mr. Morris was hit by the vehicle and went flying, any reasonable person would suspect he may have been injured as aresult of this incident. As the driver, Mr. Naziel was obligated to stop and offer Mr. Morris assistance. Instead, Mr. Naziel left thescene immediately after the vehicle he was driving hit Mr. Morris. Pursuant to s. 252(2), in the absence of any evidence to the contrary,I find Mr. Naziel left the scene to escape civil or criminal liability for one or more of: (

a) hitting Mr. Morris with the vehicle; (b)impaired driving; or (

c) driving while prohibited or disqualified. [68] Although Mr. Naziel was highly intoxicated when Corporal Delwisch arrested him over an hour later, Mr. Morris testified thatMr. Naziel was not so intoxicated at the material time as to be driving off the road. Mr. Naziel did not testify as to his level of alcoholconsumption or adduce expert evidence as its impact on his cognitive functioning. [69] Although Mr.

Naziel was likely impaired by alcohol to some degree at the material time, I do not find his level of intoxicationrendered him incapable of forming the requisite intent to leave the scene in order escape civil or criminal liability. As there is no otherevidence to the contrary to negative the presumption under s. 252(2), Mr. Naziel’s impairment alone does not raise a reasonable doubtthat he knew his vehicle struck Mr. Morris and that he failed to stop at the scene with the intent of avoiding civil or criminal liability. Conclusion on Count 1 [70] I am satisfied the Crown has proven beyond a reasonable doubt Mr.

Naziel’s guilt of failing to stop at the scene of an accident inorder to escape civil or criminal liability as charged in Count 1. Count 2:

Section 267: assault causing bodily harm [71] On Count 2, Mr. Naziel is charged with assaulting Mr. Morris contrary to s. 267(

b) of the Criminal Code, which states: Assault with a weapon or causing bodily harm 267 Every one who, in committing an assault, . . . (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. [72] Section 265(1)(

a) of the Criminal Code defines the offence of assault as follows:

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [73] Pursuant to s. 265(1)(

a) of the Criminal Code, assault involves the intentional touching of another person, directly or indirectly,without their consent. The strength of the force is immaterial and thus the slightest touching of another person without their consent canconstitute an assault. Section 265(2) of the Criminal Code expressly provides that this "section applies to all forms of assault,including... assault…causing bodily harm." [74]

Section 267(

b) of the Criminal Code requires proof that the accused assaulted the victim and caused him or her bodily harm. Thus, the Crown must prove “all of the elements of an assault plus the aggravating circumstance”: see R. v. Williams, 2003 SCC 41, para. 41. [75]

Section 267(

b) must be read in conjunction with s. 2 of the Criminal Code, a provision of general application, which defines thephrase “bodily harm” as follows: “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merelytransient or trifling in nature [76] In R. v. Dixon, (BC CA), the B.C. Court of Appeal held, at para. 45, that a transient or trifling injury is "aninjury of very minor degree which results in a very minor degree of distress." [77] In sum, before the Court can convict Mr. Naziel of assault causing bodily harm pursuant to

section 267(

b) of the CriminalCode, the Crown must prove each of the following elements beyond a reasonable doubt: a. Mr. Naziel is the person who applied force directly or indirectly to Mr. Morris; b. the assault occurred at time and place set out in the Information, namely on September 14, 2016, in or about Moricetown, B.C.; c. Mr. Naziel intended to apply the force to Mr. Morris; d. Mr. Morris did not consent to the force Mr. Naziel applied; e. Mr. Naziel knew that Mr. Morris did not consent to the force Mr. Naziel applied;

f. Mr. Morris had not assaulted, threatened or otherwise provoked Mr. Naziel; and g. the force Mr. Naziel applied caused Mr. Morris bodily harm, which in this context means a hurt or injury that interferes withhis health or comfort in more than a brief, fleeting or minor way. [78] There is no contest that Mr. Morris was struck with the vehicle which I have found Mr. Naziel to be driving at the material time. Mr. Morris said he did not want this incident to happen; he did not hit Mr. Naziel nor did he want to fight him. Mr. Naziel struckMr. Morris with the vehicle after Mr.

Morris had turned his back and was walking away. The question is whether Mr. Nazielintentionally struck Mr. Morris with the vehicle. Issue #3: Did Mr. Naziel intentionally strike Mr. Morris with the vehicle? [79] The B.C. Court of Appeal in R. v. D.J.W., 2011 BCCA 522 , Mr. Justice Hinkson discusses the mental element ofassault at para. 70: 70. The mental element of assault, defined as “intentionally” in s. 265(1)(

a) of the Code, includes recklessness. In R. v. Dawydiuk, 2010BCCA 162 , 253 C.C.C. (3d) 493, Madam Justice Rowles held at para. 29, “In s. 265(1)(a), the word ‘intentionally’ simplymeans, in the words of Ritchie J., [The Queen v. George, (SCC), [1960] S.C.R. 871, 128 C.C.C. 289] ‘not done byaccident or through honest mistake.’” [80] The evidence that Mr. Naziel intentionally drove the vehicle in such a manner as to hit Mr. Morris is gleaned fromcircumstantial evidence of eye witness, J.B.

A trial judge can make inferences as to the accused state of mind from circumstantialevidence provided the inference is reasonable given the evidence or the absence of evidence, assessed logically, and in light of commonsense and human experience: R. v. Villaroman, 2016 SCC 33 . [81] In Villaroman, Cromwell J., referencing Hodge’s Case (R. v. Hodge (1838) 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R.1136 (Eng. C.C.R.)), states, in part: 35. . . . In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts . . .

Requiringproven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rulethat whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidenceis the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidencedoes not meet the standard of proof beyond a reasonable doubt . . . 36. . . . a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack ofevidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logicallybased upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences otherthan guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light ofhuman experience and common sense. 37.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt . . . the Crown thus may need to negative these reasonable possibilities, but certainly doesnot need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of theaccused”: . . . . “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to theevidence or the absence of evidence, not on speculation. . . . 41. . . . that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes anyother reasonable alternative — a helpful way of describing the line between plausible theories and speculation. 42. . . . the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and thatalternative inferences must be reasonable, not just possible. [Citations Omitted] [82] I infer from the circumstances that Mr. Naziel intentionally drove his vehicle in such a manner as to hit Mr. Morris. Thesecircumstances include: a. immediately before the vehicle hit him, Mr. Morris had been arguing with Mr. Naziel; b. Mr. Morris kicked the front of the vehicle and then began to argue with the female passenger while she was outside the vehicle;and c. it was daylight. [83] Given Mr.

Morris’ interaction with driver, the female passenger and the vehicle itself, I find it implausible that Mr. Naziel wasnot aware that Mr. Morris was in front of the vehicle when he accelerated forward. Mr. Naziel’s Intoxication [84] Mr. Morris testified neither he nor Mr. Naziel wanted the incident to occur; it happened as a result of their mutual level ofintoxication. [85] Assault causing bodily harm is a general intent offence and therefore, the only legally relevant level of intoxication is extreme

intoxication akin to automatism: R. v. Tatton, 2015 SCC 33, para. 20. The accused bears an evidentiary burden to satisfy the trial judgethere is evidence on a balance of probabilities that he acted involuntarily: R. v. Daley, 2007 SCC 53 , at para. 45. [86] Mr. Naziel did not assert a defence based on a degree of intoxication akin to automatism nor call any evidence. [87] I find Mr. Naziel drove the vehicle into Mr. Morris. Normally, a person is presumed to intend his or her actions. The evidenceof Mr. Naziel’s impairment is not sufficient to negate intent.

Foreseeability of Bodily Harm [88] In the recent case of R. v. Johnson, 2016 BCSC 410 , the court summarised the law on foreseeability of bodily harm. Mr. Justice N. Brown states at para. 86, in part: [86] In

summary: 1. Subjective foresight of bodily harm is not a necessary mens rea requirement for assault causing bodily harm. 2. As discussed in these reasons, from a review of the authorities it appears objective foresight of bodily harm is a not a mensrea requirement in British Columbia for the offence of assault causing bodily harm. However, this remains uncertain. 3.

If objective foreseeability of bodily harm is not a necessary element of the offence of assault causing bodily harm, all the necessaryelements having been clearly established, the respondent’s conviction of assault causing bodily harm would inevitably follow. . . . [89] The court in Johnson sets out, at para. 52, the distinctions between a subjective mens rea and an objective mens rea as drawn byMcLachlin J. in R. v.

Creighton, (SCC), at paras. 110 to 111: [110] … Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probableconsequence of those acts, the accused have proceeded recklessly in the face of the risk. [111] Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies infailure to direct the mind to a risk which the reasonable person would have appreciated.

Objective mens rea is not concerned with whatwas actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably. [90] Citing R. v. Brooks, (1988), (BC CA), 41 C.C.C. (3d) 157 (BCCA), Mr. Justice N. Brown, doubted theCrown was required to prove objective foreseeability of bodily harm to make out the offence of assault causing bodily harm. However,given the uncertainty, I will consider this factor. I have no doubt it is objectively foreseeable that by striking a person with a movingmotor vehicle the person struck will suffer bodily harm. Issue #4: Did Mr.

Morris suffer bodily harm as a result of being struck by the vehicle? [91] I am satisfied that Mr. Morris suffered bodily harm as a result of the assault. He was transported to the hospital where he wasassessed and given Naproxen. He suffered soreness and pain in his tail bone area for a couple of weeks after he had been hit by thevehicle. At trial, a year later, he still suffered intermittent pain. Conclusion on Count 2 [92] I am satisfied on the totality of the evidence the Crown has proven beyond a reasonable doubt Mr. Naziel’s guilt of assaultcausing bodily harm as charged in Count 2.

Count 3: Section 259(4) CC Driving while disqualified [93] In Count 3 of Information 24416-2-C, Mr. Naziel is charged under s. 259(4) of the Criminal Code, which states in part: Every offender who operates a motor vehicle, ....in Canada while disqualified from doing so, other than an offender who is registered inan alcohol ignition interlock device program established under the law of the province in which the offender resides and who complieswith the conditions of the program, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. [94] Section 259(5) of the Criminal Code defines “disqualification” as it relates to the operation of a motor vehicle, as follows: Definition of disqualification

(5) For the purposes of this section, disqualification means (

a) a prohibition from operating a motor vehicle . . . 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 . . . 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). [95] Before the Court can convict an accused for offence under s. 259(4) of the Criminal Code the Crown must prove: a. the accused was driving while subject to a driving prohibition order under the Criminal Code; or b. the accused was driving while suspended or restricted under the provincial Motor Vehicle Act. See: R v Fernandes, 2013 ONCA 436 ; R v Brownson, 2013 ONCA 619 . [96] In R. v.

Chapman, 2009 BCPC 84 , at para. 9, Judge Skilnick set out the following elements the Crown is required toprove before the Court can convict an accused under s. 259(4) of the Criminal Code: a. the identity of the accused b. the date of the offence as set out in the information c. territorial jurisdiction (i.e. that the offence occurred at a location over which the court has jurisdiction) d. the actus reus, that is, that at the time of the commission of the offence, the accused: i. was operating a motor vehicle; and ii. was subject to a valid order disqualifying him or her from doing so; and e. the mens rea, which is knowledge on the part of the accused that he or she was disqualified from operating a motor vehicle at the timeof the alleged offence. [97] The Crown tendered as Exhibit 1 at trial a Certificate of Superintendent dated September 15, 2016, signed by Sam MacLeod,together with the Certificate of Service dated December 21, 2011, indicating the Notice of Driving Prohibition was served on WallaceJack Naziel at Beaver Road near Moricetown, B.C. on December 21, 2011.

The Certificate of Superintendent states that Mr. Naziel wasprohibited from driving a motor vehicle during the entire day on September 14, 2016 under Section 251(4) of the Motor Vehicle Act. [98] The Crown also tendered into evidence as Exhibit 2 the Certificate of Disqualification dated January 6, 2017, in which MarkBlucher certified Mr.

Naziel was disqualified from driving a motor vehicle on any highway in Canada for the entire day of September 14,2016, by reason of receiving a one year driving prohibition on September 2, 2016, pursuant to s. 259(1) of the Criminal Code. [99] Under s. 2 of the Criminal Code, “highway” means a road to which the public has the right of access, and includes bridges overwhich or tunnels through which a road passes. [100] Section 260(5) and (6) of the Criminal Code states, in part: Certificate admissible in evidence

(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 . . . 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.

Notice to accused (6) Subsection (5) does not apply in any proceedings unless at least seven days’ notice in writing is given to the accused that it isintended to tender the certificate in evidence. [101] In Chapman, Judge Skilnick held that before the court can convict an accused of the offence of driving under section 259(4) ofthe Criminal Code there must first be compliance with section 260(1) of the Criminal Code, which states: Proceedings on making of prohibition order 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). [102] Judge Skilnick summarized the law with respect to s. 260(1) of the Criminal Code in para. 21 of Chapman: 21. In

summary, I find the law in British Columbia to be as follows: a. In order for an accused to be convicted of the offence of driving while disqualified under section 259(4) of the Criminal Code theremust first be compliance with section 260(1) of the Code. b. The Crown is not required to lead evidence that there has been compliance with section 260(1). Such compliance may be presumed

through the operation of the presumption of regularity. c. The burden of displacing the presumption that section 260(1) has been complied with rests with the party seeking to avoid its operation. Placing such a burden is not shifting the onus of proof from the Crown to the accused because there is no onus on the Crown to prove compliance with section 260(1) in the first place. d. The presumption of regularity is properly applied to permit the court to presume that section 260(1) of the Code has been complied with, in the absence of evidence displacing this presumption. e.

Where compliance with section 260(1) is presumed or is otherwise established, it is presumed (or proven, as the case may be) that the accused has had his prohibition order read to him and given to him and therefore knowledge of the prohibition on the part of the accused may be inferred. Conclusion Count 3 [ 103 ] The Defence does not contest the vehicle was a “motor vehicle” which, on September 14, 2016, was being operated on a highway within the Province of British Columbia. The Defence does not contest that Mr. Naziel was disqualified from driving on September 14, 2016.

Moreover, the Defence concedes that if I find Mr. Naziel was the driver of the vehicle, which I have done, then Crown has proven Mr. Naziel’s guilt with respect the offence of driving while disqualified under s. 259(4) . [ 104 ] Even without the Defence’s concession as set out above, I am satisfied on the totality of the evidence the Crown has proven beyond a reasonable doubt Mr. Naziel’s guilt to driving while disqualified as charged in Count 3. Count 4:

Section 95 MVA : Driving while prohibited [ 105 ] With respect to Count 4 which charges Mr. Naziel with driving with an offence under s. 95 of the Motor vehicle Act , the Crown must prove beyond a reasonable doubt that Mr. Naziel was driving a motor vehicle on a public road or highway at a time he knew he was prohibited from doing so.

Section 95 states in part: Driving while prohibited 95

(1) A person who drives a motor vehicle on a highway or industrial road knowing that (

a) he or she is prohibited from driving a motor vehicle under

section 91, 92, 93, 94.2, 215, 215.43 or 251(4); . . . commits an offence and is liable, . . .

(2) If a person is charged with an offence under subsection (1) that pertains to a prohibition under

section 91 or 215, the court hearing the charge may admit into evidence (

a) a certificate of the Insurance Corporation of British Columbia, or (

b) a certificate of the superintendent dated before the date this paragraph comes into force stating the information required by subsection (4) and if the certificate is admitted into evidence it is proof that the defendant had knowledge of the prohibition in effect at the time of the alleged offence.

(3) If a person is charged with an offence under subsection (1) that pertains to a prohibition under

section 92, 93, 94.2, 215.43 or 251 (4) , the court hearing the charge may admit into evidence a certificate of the superintendent stating the information required by subsection (4), and if the certificate of the superintendent is admitted into evidence, it is proof that the defendant had knowledge of the prohibition in effect at the time of the alleged offence.

(4) If a person is charged with an offence under subsection (1), the certificate referred to in subsection (2) or (3), as the case may be, must state that the prohibition was in effect on the date of the alleged offence and that the records of the Insurance Corporation of British Columbia or the superintendent, as the case may be, (

a) show that a notice of the prohibition was mailed by registered mail or certified mail to the person at the person's most recent address recorded in the records of the corporation and that the corporation or superintendent subsequently received a copy of a confirmation of delivery provided by Canada Post showing a recipient's signature that, from a comparison with the signature on the records of the corporation, appears to be that of the person to whom the notice of prohibition was sent, (

b) contain a document that (

i) indicates that the person so charged (

A) has acknowledged that he or she is prohibited from driving a motor vehicle, (

B) has acknowledged that he or she has received from the corporation or the superintendent a notice of prohibition against driving a motor vehicle, or (

C) has surrendered his or her driver's licence to the corporation or the superintendent subsequent to receiving from the corporation or the superintendent a notice of prohibition, relating to a prohibition under

section 91, 92 or 93, or a notice of suspension, and

(ii) is signed with a signature that, from a comparison with the signature on the records of the corporation, appears to be that of the person whom the corporation or superintendent intended to prohibit from driving a motor vehicle, or to whom the corporation or superintendent mailed a notice of prohibition, or (

c) contain a certificate of service established under

section 94.3 (c), 215.47 (

c) or 251 (3) (

b) showing that a notice of driving prohibition under

section 94.1, 215.41 or 251 (1) (h), as applicable, was personally served on the person subject to the prohibition.

(5) This

section applies to any document contained in the records of the Insurance Corporation of British Columbia or the superintendent, whether that document was signed before, on or after the date this subsection comes into force. [ 106 ] As set out above, Exhibit 1 is the Certificate of Superintendent dated September 15, 2016, signed by Sam MacLeod, together with the Certificate of Service dated December 12, 2011, indicating the Notice of Driving Prohibition was served on Wallace Jack Naziel at Beaver Road near Moricetown, B.C. on December 21, 2011. Exhibit 1 certifies Mr.

Naziel was prohibited from driving all day on September 14, 2016 under s. 251(4) of the Motor Vehicle Act . [ 107 ] It is uncontested the vehicle was being operated and on a public highway in the Province of British Columbia on September 14, 2016. Corporal Delwisch testified that Beaver Road in Moricetown and the Telkwa Highway in the vicinity of Moricetown are both public highways. Conclusion on Count 4 [ 108 ] As with Count 3, the Defence concedes that if I find Mr. Naziel was the driver of the vehicle, which I have done, then Crown has proven Mr.

Naziel’s guilt with respect the offence of driving while prohibited under s. 95 of the Motor Vehicle Act . [ 109 ] Even without the Defence’s concession, I am satisfied the Crown has proven beyond a reasonable doubt Mr. Naziel’s guilt of driving while prohibited as charged in Count 4. Disposition: [ 110 ] As to Count 1 on Information 24416-2-C, charging Wallace Naziel with failing to stop at the scene of an accident with a person contrary to s. 252(1) (

a) of the Criminal Code , I find him guilty. [ 111 ] As to Count 2 on Information 24416-2-C, charging Wallace Naziel with assault causing bodily harm to Johnny Morris, contrary to s. 267 (

b) of the Criminal Code , I find him guilty. [ 112 ] As to Count 3 on Information 24416-2-C, charging Wallace Naziel with driving while disqualified contrary to s. 259(4) of the Criminal Code , I find him guilty. [ 113 ] As to Count 4 on Information 24416-2-C, charging Wallace Naziel with driving while prohibited contrary to s. 95 of the Motor Vehicle Act , I find him guilty. “Judith Doulis” __________________ Judith Doulis Provincial Court Judge