R. v. Bates Date:, 2013 BCPC 435

Citation: R. v. Bates Date: 20130306 2013 BCPC 0435 File No: 31528-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYRELL ROSAIRE BATES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.L. BAYLIFF Counsel for the Crown: W. Mathers Counsel for the Defendant: D. Jenkins Place of Hearing: Williams Lake , B.C. Date of Hearing: February 12, 2013 Date of Judgment: March 6, 2013

[1] Tyrell Rosaire Bates is charged with driving while prohibited contrary to s. 95(1)(

a) of the Motor Vehicle Act of B.C. [2] I have decided that I must find Mr. Bates guilty. I will explain why. [3] The Information particularizes that Mr. Bates drove a vehicle on a highway, “…knowing that he was prohibited from driving amotor vehicle pursuant to

Section 93 of the Motor Vehicle Act….”. It is argued that the Crown has failed to prove what it hasparticularized, specifically, that it has failed to prove that Mr. Bates had knowledge that he was prohibited from driving pursuant to s. 93of the Act. R. v. Crosby, [1997] B.C.J. No. 562 (B.C.S.C.) is cited in support of the Defence position. [4] R. v. Crosby is a decision of Justice Williamson on a

summary conviction appeal by the Crown. At trial the Crown had soughtto prove in two different ways that Crosby had knowledge that he was prohibited from driving. The first involved an issue ofidentification by the officer who had served Crosby with the notice of prohibition and is not relevant to the issue in the case at bar. Thesecond, however, is on point. [5] Crosby, like Bates, had acknowledged to the investigating officer that he knew he was prohibited from driving.

However,Justice Williamson found that this was insufficient evidence to make out the mental element of the offence given that the Informationparticularized – as it does in this case – that the accused drove “knowing that he was prohibited from driving…pursuant to” a specificsection of the Motor Vehicle Act. (The

section referenced in the Bates case was

Section 86, which is the predecessor to the

Section 93referenced in the Information charging Mr. Bates in the case at bar.) Citing R. v. Saunders (1990), (SCC), 56 C.C.C.(3d) 220, Justice Williamson held that, generally speaking, the Crown must prove what it has particularized. Crosby’s acquittal wasupheld on appeal because the court found there was no evidence that Crosby knew he was prohibited “pursuant to

Section 86.” It isargued that the same reasoning applies in the case at bar and that Bates should be acquitted because there is no evidence that he knew hewas prohibited “pursuant to

Section 93”. [6] As far as I can determine, R. v. Crosby is still good law. Unless Crosby can be distinguished in some way, it is binding on mein the case at bar. [7] I have concluded that R. v. Crosby can be distinguished from the case at bar on the basis of the wording of the certificate ofsuperintendent filed in this case (Exhibit 1) and the evidentiary assist provided to the Crown on the element of knowledge by s. 95(3) ofthe Motor Vehicle Act. [8] Before I get to the certificate and s. 95(3) I will briefly address the evidence of Mr. Bates’ admissions.

I agree with theDefence that those admissions are of no assistance to the Crown on the issue raised by the Defence – namely, proof that Bates knew hewas prohibited “pursuant to

Section 93” as particularized in the Information. [9] Mr. Bates’ conversation with Cst. Nakatsu at road side was captured on the police car video and audio recording system. Thefollowing excerpts of that conversation were found to be voluntary and form part of the evidence in this trial: “Q: Your Driver’s Licence and Registration? A: I don’t have a DL Q: You are prohibited aren’t you? A: Yeah, I’m prohibited [indecipherable]” And, later, as the driver is seen moving towards the back of the pickup truck at the direction of the officer about 3 or 4 minutes into theconversation: “A: Yeah, prohibited for sure.

Q: And you know you are prohibited don’t you? A: Yeah, for sure.” And later, after the s. 10 Charter advice and right to silence have been given, about 13 minutes into the conversation: “Q: I’m going to release you on a charge of Drive While Prohibited, so what’s going to say you will not drive again? A: [I knew or I know] The only reason I drove tonight is because he asked me to...”. [10] Clearly, Mr. Bates knew that he was prohibited from driving a motor vehicle. However, it is not clear from his statementswhether he knew that he was prohibited “pursuant to

Section 93 of the Motor Vehicle Act”. He was not asked if he knew what sectionhe was prohibited under, or why, and, if he knew this information, he did not volunteer it. The conversation relied on, unsuccessfully, bythe Crown in the Crosby case was quite similar. Crosby admitted knowing that he was prohibited but he said he did not know why andthere was no evidence that he knew what

section he was prohibited under. [11] Moving now to the certificate tendered in the case at bar, the Crown has argued that if the knowledge element of this case is notproved by way of Bates’ admissions, it is proved by the filing of the certificate of the superintendent and by the operation of s. 95(3) ofthe Motor Vehicle Act. I have concluded that the Crown’s position on this point is correct. [12] A copy of the certificate filed in this case is attached as Appendix “A” to this decision. As will be seen, it says in the firstparagraph that, on the date in question, Mr.

Bates “…was prohibited from driving a motor vehicle and the prohibition under Section93(1)(a)(ii) of the Motor Vehicle Act was in effect during the entire day…”.

[ 13 ] Section 95(3) reads as follows: “95(3) If a person is charged with an offence under subsection (1) that pertains to a prohibition under section…93…, 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…is admitted into evidence, it is proof that the defendant had knowledge of the prohibition in effect at the time of the alleged offence .” [ 14 ] In my view, the fact that the certificate, which has been admitted into evidence, references “ the prohibition under Section 93(1) (a)(ii )” plus the fact that s. 95(3) states that, as a matter of law, the certificate is proof that the defendant “ had knowledge of the prohibition” amounts to conclusive proof that Mr.

Bates did have knowledge that he was prohibited “ pursuant to

Section 93…” as particularized in the Information. The certificate (and thus the knowledge attributed by law to Mr. Bates) is actually more particularized than the Information in that it references a prohibition pursuant to certain sub-sections of

section 93. [ 15 ] Does the decision in R. v. Crosby speak to this question of whether the certificate together with the evidentiary assist in the legislation is sufficient to prove the specific knowledge particularized? I am somewhat hampered by not having a copy of the trial decision and not knowing for certain whether a certificate was filed by the Crown in the Crosby case and, if it was filed, whether it specifically referred to a prohibition under

section 86. I do know that the evidentiary assist on the knowledge point has existed in the Motor Vehicle Act since at least 1991 when the actual investigation in the Crosby case took place. The

section number was 88(2) back then and the wording is nearly identical to the current s. 95(3): once the certificate is admitted into evidence “it is proof that the defendant had knowledge of the prohibition or suspension in effect at the time of the alleged offence…”. [ 16 ] Justice Williamson simply does not mention a certificate, its wording, or the evidentiary assist in s. 88(2) in his decision in R. v. Crosby.

I have therefore concluded that Crosby does not speak to this issue and it is therefore distinguishable from the case at bar on this point. [ 17 ] I find that the Crown has proved beyond a reasonable doubt that which it particularized as it concerns Mr. Bates’ knowledge at the time Cst. Nakatsu dealt with him in the early morning hours of June 26 th , 2011, namely, that he knew he was prohibited from driving pursuant to

Section 93 of the Motor Vehicle Act. The other elements of the offence having been proven, I therefore find Mr. Bates guilty as charged. [ 18 ] Counsel wishes to argue the delay issue and therefore some time for the ‘Askov’ issue should now be scheduled. My suggestion is that 2 hours be scheduled but I leave the final determination of the time requirements of that aspect of the case to counsel. ______________________________ E. L. Bayliff Provincial Court Judge

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