Her Majesty the Queen - v. -, 2012 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 033 Date: March 27, 2012 Information: 24386826 Location: Kamsack _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clinton David Key Appearing: Mr. Andrew Wyatt For the Crown Mr. Mervin Ozirny For the Accused JUDGMENT R. GREEN , J I.

INTRODUCTION [ 1 ] Clinton Key is charged with driving while disqualified under s. 259(4) of the Criminal Code and with, by virtue of committing that offence, breaching his probation order by failing to keep the peace and be of good behaviour contrary to s. 733.1 . [ 2 ] On December 27, 2010, Mr. Key was driving, by himself, on a grid road located on the Key First Nation in Saskatchewan.

[2] On December 27, 2010, Mr. Key was driving, by himself, on a grid road located on the Key First Nation in Saskatchewan. That road is open for use by the public. Mr. Key was stopped by Cst. Kris Selinger of the RCMP in Kamsack, who was accompanied byCst. Jillian Hiltz. Cst. Selinger asked Mr. Key for his driver’s licence. He produced a learner’s driver’s licence. Cst. Selinger then did aso-called “27” computer check and determined Mr. Key had a valid class 7 driver’s licence, which he referred to as a learner’s licence.

This officer did not do a so-called “29” computer check, which would have shown any court ordered driving prohibitions. [3] A learner’s licence requires supervision by a licenced driver. Cst. Selinger, however, decided not to charge Mr. Key underThe Traffic Safety Act, but rather decided to take him to a house not far from the stop scene, where Mr. Key’s nephew David Cote - theholder of a permanent class 5 licence - was. Once Mr. Cote returned to the scene, Mr. Key was allowed to drive away, with Mr. Cotesupervising. [4] Later, at the detachment, Cst. Selinger was advised by Cpl. McDonald that Mr.

Key was prohibited from driving under theCriminal Code, and, as a result, Mr. Key was charged on this Information. [5] On August 10, 2009, Mr. Key was prohibited from driving under s. 259(1) of the Code on charges of refusing to take abreath test and driving while disqualified. The prohibition on each charge was for three years (Exhibits P-1 and P-2), one concurrent tothe other. On the same date Mr. Key was, following the term of imprisonment of fifteen months he received on these charges, placed onprobation for eighteen months from the expiry of that imprisonment.

His probation order included a statutory term that he keep the peaceand be of good behaviour (Exhibit P-5). [6] There is no doubt that Mr. Key was driving on December 27, 2010 on a public road at the Key First Nation, or that this datefell both within the three year driving prohibition and within his period of probation. Nor is there any question that Mr. Key knew aboutthe driving prohibition or the probation order on the date he was sentenced. The issue in this case, however, is whether the actions of theHighway Traffic Board of Saskatchewan in its decision of April 1, 2010, in response to Mr.

Key’s application for a restricted licence,taken together with the issuance of a driver’s licence to Mr. Key by Saskatchewan Government Insurance and any further actions by Mr.Key, entitle him to rely on the defence of officially induced error. [7] That criminal law defence was recognized by the Supreme Court of Canada in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, where LaBel J. cited with approval (at para. 24) the words of Lamer C.J. in R. v.

Jorgensen, (SCC), [1995] 4 S.C.R. 55 (at para. 25 of that decision): Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases wherethis rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have acomprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages aresponsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law.

Rather, extensiveregulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat. [8] In Jorgensen, Lamer C.J. (at para. 30) said that a primary objective of the doctrine of officially induced error is to preventthe obvious injustice of the “state approving conduct with one hand and seeking to bring criminal sanction for that conduct with theother”.

Chief Justice Lamer (at para. 28 - 37) described officially induced error as an excuse similar to entrapment, where - although thewrongfulness of the act is established - given the circumstances leading up to the act, the person is entitled to a stay of proceedings if heproves six elements: (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. [ 9 ] Each of the constituents of this defence, upon which I am satisfied Mr. Key must prove on a balance of probabilities, will be analysed in terms of the evidence presented relevant to this issue: on behalf of the Crown, through the evidence of Cpl. Kirk McDonald of the Kamsack RCMP and Sheila Vanstone (a clerk and hearing co-ordinator with the Highway Traffic Board) and, on behalf of the defence, through the evidence of Mr. Key. II. ANALYSIS A. Overview of relevant evidence [ 10 ] Cpl.

McDonald testified that, in the course of his duties on June 4, 2010, he was involved in an investigation regarding Mr. Key. Two provincial statute charges had been laid against Mr. Key and Mr. Key’s truck had been towed to the Kamsack RCMP Detachment. Cpl. McDonald discovered that Mr. Key was subject to a three year driving prohibition which was still in effect on that date. He said, after he spoke to the investigator, a decision was made not to charge Mr. Key with driving while disqualified under s. 259(4) of the Criminal Code . He said Mr.

Key called the detachment by phone, and then attended at the detachment and met with Cpl. McDonald. At that time, Cpl. McDonald brought out copies of the prohibition orders (Exhibits P-1 and P-2), showed these to Mr. Key and gave copies to him. Cpl. McDonald said he told Mr. Key he could not drive until the prohibition order was no longer in effect. [ 11 ] On cross-examination, Cpl. McDonald admitted that Mr. Key brought with him to the detachment a number of documents, including a temporary driver’s licence. He said Mr. Key also brought with him six or seven letters and a decision from the Highway Traffic Board.

Cpl. McDonald said he passed the documentation on to the lead investigator and said he had no idea whether or not the licence Mr. Key had continued in effect after Mr. Key was stopped by the police. [ 12 ] Ms. Vanstone testified that she had reviewed the file at the Highway Traffic Board for the hearing of April 1, 2010, at which Mr. Key’s application for a restricted licence was considered. His application, dated March 22, 2010 (Exhibit P-6) was broken down into a number of sections. Regarding his employment, Mr. Key listed Western Alfalfa Milling Company in Norquay, Saskatchewan.

Regarding any charges or convictions (ie. drive while disqualified) involving a motor vehicle since the conviction resulting in his suspension, Mr. Key referred to an attached driver’s abstract, “as confirmed via telephone on March 22, 2010 from Eileen at customer service at Saskatchewan Government Insurance”. [ 13 ] In the application Mr. Key then set out in detail the addictions related programming he took during his period at the Regina Correctional Centre and thereafter.

He then described how he had met his travel requirements without a driver’s licence, regarding his needs for employment, education, family responsibilities, medical and health.

He as well described the hardship he had endured as a result of the driving suspension as including an inability to get work, including either business or farming, an inability to be involved in the extracurricular activities of his children or to transport them in case of emergency, and said he could not afford to continue to pay people to drive him to different locations. [ 14 ] When asked, in the application form, why the Highway Traffic Board should grant him a restricted licence, he wrote: Employed for past 14 years, as well owned and operated my own business for last 12 years, auto sales and service, working two jobs while raising my family.

I have changed my lifestyle, I have been alcohol and drug free for 14 months, I completed my recovery program, I continue to attend AA/NA meetings three times a week, I presently farm 310 acres as well as I own 26 head of cattle, I certainly feel I am responsible enough to acquire, maintain and respect the privilege of driving. I also cleared up all Provincial Court fines.

[ 15 ] The Highway Traffic Board decision for Clinton Key on April 1, 2010, was as follows: Evidence Considered: · Driver information. · Saskatchewan Government Insurance (SGI) special restricted driver’s licence receipt. · Highway Traffic Board (HTB) application for a restricted driver’s licence. · Saskatchewan driver’s abstract and plate record supplied by Mr. Key. · Letter of character reference for Mr. Key from Key Band. · Verbal testimony from Mr. Key. Findings/Conclusions: Mr.

Key has never had a valid driver’s licence, since 1995 has had eight driving while disqualified Criminal Code convictions; the last of which occurred on January 30, 2009, which led to a court imposed 15 month incarceration. Mr. Key completed a designated substance abuse program, AA/NA meetings and cultural-laced programs while incarcerated and has remained alcohol and drug free for the past 14 months. He continues to attend AA/NA meetings three times per week as well as follow- up meetings with Addictions Services on a weekly basis. Mr.

Key is currently living in a half-way house in Regina and working at Co-op Refinery. The release date for Mr. Key is June 22, 2010, but will be allowed out on two week permits by the end of April. It is Mr. Key’s intention to return home and work full-time for Western Alfalfa and Milling Co. in Norquay where he has worked for eight years. He also has a farm which is located about nine miles from Norquay. Mr. Key also buys, repairs and sells trucks on his farm. Mr. Key’s wife works full-time and they have a 16 year old, a 14 year old, and three year old baby. Mr.

Key appears to have turned the corner in his life and is very aware that any driving outside of a restriction would have serious consequences. The hardship of not having a licence is evident and the Board finds it to be in the best public interest to keep Mr. Key employed. Decision: After hearing evidence from you, the panel directed that you be granted a restricted licence. Please note: The following restrictions apply to the class on your driver’s licence: For the purpose of driving motor vehicles:

(1) Zero tolerance of alcohol (any trace of alcohol and licence will automatically be suspended).

(2) For work only while employed with Western Alfalfa Milling Co., Norquay, Saskatchewan (includes getting to and from residence and work).

(3) For farming purposes only within a 24 kilometre radius of his farm residence (includes hauling water for household use). Using the most direct route. Failure to comply with these restrictions may lead the Board to reconsider your driving privileges according to s. 23 of The Traffic Safety Act . Please note before you can go to any licence issuing office to validate your restricted driver’s licence you must complete the road test, as you have not held a valid licence within the last five years. Also, you must contact Justice to pay your fines.

Once you have completed the road test and paid your fines, please contact SGI at 306-775-6181 so they can put your restrictions on the system. [ 16 ] Ms. Vanstone tendered as Exhibit P-7 the driver’s abstract from SGI that Mr. Key included with his application for a restricted licence. This indicates the most recent Criminal Code conviction, from which a prohibition flowed, was on October 23, 2007, for which there was a one year prohibition. She was asked, having reviewed the file, whether there was any indication on the file that Mr.

Key stated to the Board that he had a three year prohibition which began August 10, 2009. She indicated that there was no

indication on the file. She was then asked, if such a prohibition had been noted by Mr. Key, whether he would have been eligible for a restricted licence. She indicated she was not sure of the answer to that, and further said that it is SGI that determines this question, and, as a result, she was not sure. [ 17 ] On cross-examination, she was asked whether she knew of anything that Mr. Key had falsified in his application, and she indicated she did not. She was further asked whether the transcript marked as Exhibit P-7 was accurate, as the one provided by SGI, at the time it was filed by Mr.

Key at the Highway Traffic Board. She indicated, to her knowledge, it was accurate as produced by SGI at that time. When asked whether there was a correction made to the abstract after the hearing, she said she was not aware of this as SGI would have handled that. Further, she was not able to say that Mr. Key had not verbally advised the Board about the three year prohibition when he appeared before them on April 1, 2010. [ 18 ] Mr. Key testified that he was sentenced to 15 months at the Regina Correctional Centre on August 10, 2009, and received a three year prohibition.

After six months at the correctional centre, he was allowed to have counselling in a segregated unit for drug and alcohol abuse. He said it was a process where he was attempting to heal and change his life. The program he took in custody lasted thirty-five days and he successfully completed it in February 2010. After he finished the program, he spoke to his counsellor and the director of programming at the correctional centre. The director suggested that, because Mr. Key had consistently been in custody on driving offences, that he call SGI to see if he could get his licence back. Mr. Key said he refused.

However, the director contacted SGI and put him in contact with a woman from that company who told Mr. Key that he could get his licence back now. He was told one of the things that he needed to do was send in a report of the completion of his recovery program to SGI. Shortly after that conversation, Mr. Key was granted a release to the community training residence, which forms part of the correctional system and allows inmates to work in the community. [ 19 ] Mr.

Key said, when he spoke to the woman from SGI, he questioned her about how it would be possible for him to get some form of driver’s licence at this point, as he had received a three year prohibition when he was sentenced to jail. Mr. Key said he was directed to make an application to the Highway Traffic Board for a restricted licence, which he did (Exhibit P-6). [ 20 ] While he was at the community training residence, Mr. Key received the decision of the Highway Traffic Board (Exhibit D- 1). His understanding of their decision was that he was being given a second chance.

He denied that he had withheld anything when he appeared before the Board on April 1, 2010, and maintained that he had clearly told the Board members that he had been prohibited for three years when he was sentenced on August 10, 2009. He said, further to the Highway Traffic Board decision, he attended at the Regina courthouse to get confirmation that he had paid his fines. He had never been advised that the restricted driver’s licence granted by the Highway Traffic Board had been revoked. [ 21 ] When he met with Cpl.

McDonald in early June 2010, he said he asked the officer to seek confirmation from SGI or the Highway Traffic Board about the validity of his driver’s licence. Mr. Key said that, following his meeting with Cpl. McDonald, that he called SGI three times to confirm whether he could drive. He said, when he told one of the SGI employees that the police were saying he couldn’t drive, he was told, in response, that the police did not determine who is authorized to drive. Mr. Key’s description of the three times he contacted SGI after speaking to Cpl.

McDonald were: (1) he said he contacted SGI, and told the person he spoke with that the police said he was suspended and could not drive, and that the employee checked their records, and came back and said that he could drive; (2) the second time he called a SGI office in Yorkton (he thought Farrell Agencies), and, although not sure who he spoke to, said he told the employee he was calling to confirm whether or not he could drive and to see if there was any change in his status, and was told there was not a change; and (3) the third time he called Norquay Agencies to check to see if he had his licence and again received a positive response. [ 22 ] Mr.

Key believed that, on December 27, 2010, he had the right to drive, and further said that he provided all the relevant information in his possession, including the Highway Traffic Board decision and other material, to Cpl. McDonald when he met with him. [ 23 ] Mr. Key was cross-examined at length by the prosecutor. He admitted that he has sixteen convictions, commencing in 1988, for driving while disqualified under the Criminal Code . The most recent of these were:

· January 3, 2006 - Kamsack, for which he received a fine and a one year prohibition. · October 23, 2007 - Kamsack, for which he received five months in custody and a one year prohibition. · August 10, 2009 - Kamsack, for which he received 15 months custody, followed by probation and a three year prohibition. [ 24 ] Mr. Key maintained that it was not his idea to contact SGI about getting his licence back, but it was suggested to him by the staff at the correctional centre. When asked why he went to the courthouse in Regina, he said he was sent there by SGI when he attended to have his licence issued.

Upon repeated questioning, he maintained that he had told the staff at the Regina Correctional Centre, the staff at SGI and the members of the Highway Traffic Board that he had been suspended for three years when he was sentenced in August of 2009. Regarding the hour and a half he spent meeting with the Highway Traffic Board, he said, after he told them about the three year prohibition, he was told by them that the Board had authority to give a restricted/work licence. He admitted that Cpl.

McDonald said that he could be charged with drive while disqualified if he drove in the future, but was adamant that he asked Cpl. McDonald to call SGI about this, and then personally contacted SGI after his meeting with the officer. [ 25 ] When asked whether he had contacted a lawyer about this, he said he did not recall. When asked whether he contacted the Highway Traffic Board after their decision, he said he did when he applied for a change in a restriction so that he could work in Alberta in September or October 2010.

When asked by the prosecutor why he did not, on that most recent contact with the Highway Traffic Board, tell them about the prohibition, he said that he had already told them when he met with them on April 1, 2010, and there was no reason to repeat that. [ 26 ] On redirect examination, Mr. Key was asked by his lawyer about another abstract from SGI (Exhibit D-2). That abstract, which I am satisfied was not before the Highway Traffic Board on April 1, 2010, shows a conviction for Mr. Key on August 10, 2009, for which he was prohibited for three years.

I accept, and find, that SGI made changes to the abstract which Mr. Key filed at the Highway Traffic Board hearing after the date of that hearing. I further am satisfied that the abstract Mr. Key filed with the Highway Traffic Board, as obtained from SGI, was the transcript SGI claimed at that date to be an up-to-date one. B. Whether the elements of officially induced error have been established

(1) Was an error of law or of mixed law and fact made in this case? [ 27 ] Having heard the evidence of Mr. Key, including his lengthy cross-examination, as well as the evidence of Ms. Vanstone, and having considered the Highway Traffic Board’s decision, I am satisfied and find that Mr. Key told the staff at the Regina Correctional Centre, the members of the Highway Traffic Board and the staff or agents of SGI that he spoke to that he was disqualified from driving for three years when he was sentenced in August of 2009. In making that finding, however, I note that the Board, in its decision, refers to Mr.

Key’s last drive while disqualified conviction as being on January 30, 2009, for which he received fifteen months incarceration, a date different than either the one I am satisfied Mr. Key told them of or the date contained on the driving abstract Mr. Key obtained from SGI and filed with the Board (Exhibit P-7). [ 28 ] Section 259(1) sets out the mandatory prohibition for the offences Mr. Key was sentenced for on August 10, 2009. That subsection also makes clear that any such prohibition, the minimum of which is one year, would only start after the conclusion of a sentence of imprisonment.

Lastly, section 259(1.1) makes clear that the only exception to the court ordered prohibition is that the offender be registered in an ignition interlock program and be driving a vehicle equipped with an ignition interlock device. [ 29 ] It is difficult to determine how the Highway Traffic Board would have found the date of Mr. Key’s last conviction to be January 30, 2009. Nevertheless, given that finding - and an acknowledgment in its decision that Mr.

Key had been imprisoned for fifteen months from that date - there is no doubt in my mind that the Highway Traffic Board made a mistake of law, when it, on April 1, 2010, ordered that Mr. Key be given a restricted driver’s licence subject to the conditions it detailed. [ 30 ] I as well note that SGI issued a learner’s licence to Mr. Key. It is difficult from the evidence and the relevant statutory law to determine whether that licence was consistent with the restricted licence referred to in the Board’s decision. While a reading of The

Traffic Safety Act (307 sections spanning 184 pages) and The Driver Licencing and Suspension Regulations, 2006 (56 sections spanning 49 pages) is complex to even a legally trained reader, a review of this legislation makes obvious the complexity of the regulation of driving in this province.

(2) Did Mr. Key consider the legal consequences of his actions? [ 31 ] In Jorgensen (at para. 29 ) Lamer C.J. said: By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible. [ 32 ] On balance, I am satisfied that Mr.

Key did consider the legal consequences of his actions, through his discussions with the members of the Highway Traffic Board, the staff and agents of SGI and Cpl. McDonald (whom he urged to contact SGI to clarify why he had been given a restricted licence).

(3) Was the advice he obtained from an appropriate official? [ 33 ] In Jorgensen (at para. 30 ) Lamer C.J. said: In general, therefore, government officials who are involved in the administration of the law in question will be considered appropriate officials.

I do not wish to establish a closed list of officials whose erroneous advice may be considered exculpatory. ... 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. [ 34 ] Given the complexity of the scheme for licencing drivers in Saskatchewan, and in particular the relationship between SGI and the Highway Traffic Board, I am satisfied that a reasonable person in Mr.

Key’s position would turn to the Highway Traffic Board or to an employee or agent of SGI in determining whether he was entitled to drive. I am not satisfied that he was required to contact a lawyer to meet this standard.

(4) Was the advice reasonable? [ 35 ] As Lamer C.J. said in Jorgensen (at para. 33 ), “if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable”. Given the circumstance of this case, I am not satisfied that the advice Mr. Key received from the Highway Traffic Board or the staff or agents of SGI was, on its face, utterly unreasonable. As a result, I am satisfied that the advice he received was reasonable.

(5) Was the advice erroneous? [ 36 ] As stated above, obviously the advice Mr. Key received from the Highway Traffic Board and the staff or agents of SGI was erroneous.

(6) Did Mr. Key rely on the advice in committing the act?

[ 37 ] Clearly, Mr. Key relied on the advice he got, in believing that the restricted driver’s licence the Highway Traffic Board ordered he be given was valid. III. CONCLUSION [ 38 ] I am satisfied on a balance of probabilities that Mr. Key has made out the defence of officially induced error, under the six requirements for that defence set out by Lamer C.J. in Jorgensen . I am further satisfied that this is one of the clearest of cases where a judicial stay is appropriate.

I am satisfied that this was a case in which - using the language of Chief Justice Lamer in Jorgensen (at para. 30 ) - there was an obvious injustice with the state approving conduct with one hand (when the Highway Traffic Board ordered that Mr. Key be given a restricted licence) and seeking to bring criminal sanction for that conduct with the other (by charging him with driving while disqualified under the Criminal Code ). I am further satisfied that Mr.

Key did not mislead the Highway Traffic Board in his application or presentation to the Board and that he did not mislead the employees or agents of SGI he spoke to. [ 39 ] I direct a judicial stay on the charge of drive while disqualified under the Criminal Code (count #1). As a result, I am left with a reasonable doubt that Mr. Key failed to keep the peace and be of good behaviour on December 27, 2010, and he is found not guilty of breaching his probation order (count #2). ______________________ R. Green, J