R. v. Cole Date:, 2012 BCPC 262

Citation: R. v. Cole Date: 20120731 2012 BCPC 0262 File No: 37295 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GARRET ARTHUR COLE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. SUTTON Counsel for the Crown: R.Ellsay Counsel for the Defendant: A. Tam Place of Hearing: Courtenay , B.C. Date of Hearing: May 8, 2012 and June 4, 2012 Date of Judgment: July 31, 2012

INTRODUCTION [ 1 ] The accused is charged with driving while prohibited contrary to

Section 95 of the Motor Vehicle Act knowing that he was prohibited from driving a motor vehicle pursuant to Section 93(1)(a)(ii) of the Motor Vehicle Act RSBC 1986. A Notice of Prohibition dated September 6, 2011 prohibiting the accused from driving for a period of three months to take effect on the date of acknowledgement of the notice by the accused or the date the notice was served on the accused by Canada Post certified mail which was on September 21, 2011. There is no question that the accused signed for the certified mail. The accused neglected to open the envelope upon receipt and argues that he did not have knowledge of the driving prohibition. ISSUES: 1. Is

Section 95 of the Motor Vehicle Act a strict liability or mens rea offence; 2. If the former, did the accused exercise due diligence?; and 3. If the latter, was the accused wilfully blind in failing to open the Notice of Prohibition letter? FACTS AND EVIDENCE [ 2 ] There is no dispute in this case that the accused was driving on the Comox Valley Parkway, in Courtenay, British Columbia on October 14, 2011 when he was stopped by a police member of the Integrated Road Safety Unit conducting a safety enhancement project looking for impaired drivers, prohibited drivers and making sure vehicles were road worthy.

At the time the accused was a prohibited driver. [ 3 ] Upon request from the investigating police officer, the accused produced the registration for the vehicle and his British Columbia photo driver’s licence DL7919455. [ 4 ] The officer compared the picture on the driver’s licence with the driver and determined they were one in the same. The officer inquired if the accused was still living in Comox, British Columbia and the accused indicated that he had recently moved to Victoria.

The officer testified that he seized the photo driver’s licence made a copy and returned the original to the Insurance Corporation of British Columbia.( I.C.B.C. ) On conducting a driver’s licence search the officer learned that the accused was a prohibited driver, having been prohibited for a period of three months from September 21 to December 21, 2011. A copy of the licence is filed and marked Exhibit “1” in the proceedings. The officer issued a Motor Vehicle Impoundment Notice, a violation ticket for driving without a driver’s licence and Promise to Appear in Court for driving while prohibited.

The violation ticket was issued in the name of the accused using the address provided verbally by the accused. [ 5 ] The Crown tendered, in addition to a copy of the accused driver’s licence, two further documents being the Certificate of Superintendent with attached Notice of Prohibition and a Canada Post acknowledgement of receipt as evidence that Mr. Cole was prohibited and that he knew he was prohibited on the date as permitted and provided for by

Section 95 subsections (3) and (4) of the Motor Vehicle Act . [ 6 ] With respect to the Canada Post acknowledgement and receipt delivered by certified mail, the officer indicated he compared the signature on it to the signature on the driver’s licence and was of the opinion that it was the same signature. The Certificate of Superintendent was signed for by Mr. Cole on September 21, 2011. [ 7 ] In his evidence, Mr.

Cole did not deny driving and acknowledge receiving the Certificate of Superintendent and signing for the certified mail but said that certified mail just means that you sign for it but he didn’t know that he was prohibited from driving. [ 8 ] He testified that he received tons of things in the mail weekly, everything from buying stuff on line, EBay orders to other stuff, which if registered, he had to go into Shopper’s Drug Mart Pharmacy to sign for and pick up the mail, which wasn’t new to him. [ 9 ] Prior to driving on October 14, 2011 he testified he never reviewed the Notice of Prohibition from the Superintendent of Motor Vehicles.

He said he never opened the letter, that he was in the middle of moving and doesn’t remember ever seeing the letter but remembers having it. He went on to say if he signed for it he could have had it in his possession not knowing who the letter was from or what is was for. [ 10 ] Mr. Cole testified that he was moving two doors down from 982 Darwin Street to 962 Darwin Street, Victoria, British Columbia.

The house he was living in was sold and, although their lease was up August 31, 2011, there was no one moving in behind them so he had some leeway with the move and did it slowly from the end of August into early September, 2011. At the time he said he just had a small car to move with. [ 11 ] As a consequence he testified that when he drove up to the road block on October 14, 2011, he did not know he was prohibited from driving. [ 12 ] On cross examination Mr.

Cole acknowledged he received a letter from the Superintendent of Motor Vehicles, Victoria Branch in early August 2011 advising him that the Superintendent intended to prohibit him from driving for five months which he admitted he was aware of. [ 13 ] The letter from the Superintendent came by regular post to his address at the time, namely, 982 Darwin Street, Victoria, British Columbia and Mr. Cole said he received it, opened it, read it and understood it. [ 14 ] The letter from the Superintendent indicated that if he did not agree with the proposed driving prohibition he could write a letter

requesting a review which Mr. Cole did and forwarded it to the Superintendent along with the required filing fee of $100. [ 15 ] Being a mechanic and, as being without a driver’s licence would have a significant impact on his employment, he wrote the review letter and paid the required fee. The letter was admitted and marked as Exhibit “3”. [ 16 ] The letter was date stamped received by the Insurance Corporation of British Columbia on August 18, 2011 and Mr. Cole said he would have sent it shortly before that date. Mr.

Cole expected a reply to his request for a review of the proposed driving prohibition and from the information in front of him he acknowledged that there was a reply. [ 17 ] Mr. Cole said he attended the Shopper’s Drug Mart on a regular basis for many things he receives for online purchases. While normally he would open registered mail he wouldn’t do so in the store but go home to do so but in this case he didn’t because he was in the process of moving and his car was packed with things. He said he could have possibly picked up the letter, he just doesn’t remember.

He said he did not recall if the letter said from the Insurance Corporation of British Columbia. [ 18 ] Exhibit “2” was put to Mr. Cole and he acknowledged that it was his signature on the Canada Post receipt form and received on September 21, 2011. It was in a letter envelope and his evidence was that there was no indication it was from the Insurance Corporation of British Columbia. [ 19 ] With respect to items purchased over the internet Mr. Cole said that they came both as packages and letters.

He said because he was moving he requested the online purchases be sent to him by registered post to make sure he got them. On cross examination the Crown asked “so, you are careful with your mail” and Mr. Cole contradicted himself by saying “not at the time I wasn’t because I was in the middle of a move.

Being in the middle of a move I can’t remember whether I received the envelope or not”. [ 20 ] He said it was because he was in the process of moving that he paid extra to the Post Office to have items purchased on line sent to him by registered post so they were secure although he didn’t bother opening the envelope received and signed for on September 21, 2011. He said it was a mistake but the Crown suggested on cross examination that it wasn’t a mistake at all and suggested to him that when he got the registered mail he signed for it and opened it. Mr.

Cole replied that “it could be the case I am normally in a rush I was moving. Even though the move took place over two weeks, between work and everything, he said it was still a rush”. [ 21 ] On further cross examination Mr. Cole went on to say that he was not aware of receiving a letter from the Superintendent in response to his review request or that the Superintendent had prohibited him from driving. He said he didn’t know where the letter went a lot of his stuff was still in boxes. He said he had mail stacked up from the move and he didn’t know where the letter from the Superintendent went.

While not registered mail he said he kept a lot of the mail in his car. He doesn’t remember whether the mail in his car was for items he didn’t have to sign for. [ 22 ] Mr. Cole could not recall any items that he ordered over the internet that he had not received. He possibly could have opened all the envelopes with the stickers. He said that he did not know if the letter he signed was for contained stickers that he had ordered. [ 23 ] In terms of the $150.00 stickers that he might have ordered, again Mr.

Cole said “he was in the middle of a move at the time, I was working, there was lots going on in his life and it wasn’t a priority”. [ 24 ] He said it was a mistake he was just too busy at the time. He did admit he still had time to order stickers although he was too busy to open them. That was the only thing he had time to do he guessed. [ 25 ] Mr. Cole went on to say that he was not aware of receiving a letter from the Superintendent in response to his review request that they were not going to prohibit him from driving.

With respect to what happened to his appeal he said it’s I.C.B.C. and it sometimes takes time to get anything from them. He said he would have expected a reply by now being the trial date. [ 26 ] Mr. Cole concluded by saying that at some time he may have either emailed, called or contacted I.C.B.C. but it was only a month after when he was pulled over and sometimes he said it takes up to six months to get a letter from I.C.B.C.

ARGUMENTS/LAW/ANALYSIS [ 27 ] Counsel on behalf of the accused argues that the sole issue before the Court is “did the accused drive knowing at the time that he was prohibited from driving pursuant to

Section 95 of the Motor Vehicle Act .” Referring to Section 95(3) of the Motor Vehicle Act counsel says that it creates a rebuttable presumption and, absent any evidence to the contrary, pursuant to same, the state of knowledge can be said to be proven. But here it is argued we have positive evidence that Mr. Cole did not know that at the time of driving on October 14, 2011 he was prohibited and because

Section 95 creates a mens rea offence, if, I find he did not have knowledge, then the right result is to acquit Mr. Cole. With respect to the rebuttable presumption, counsel says there is a fine line between wilful blindness and due diligence. [ 28 ] On the other hand the Crown suggests that Mr. Cole must have opened the letter. That he seems like an organized individual and that he received a notice from the Superintendent that the Superintendent was going to prohibit him from driving and asks why would Mr. Cole go through the trouble of sending in a letter arguing why he shouldn’t be prohibited.

That letter was received by the Superintendent or I.C.B.C. on August 18, 2011 and about a month later Mr. Cole signs for the actual Notice of Prohibition.

The Crown suggests that it is beyond belief he would go to the trouble of appealing it, and, then expecting a reply, pick it up, sign for it and not open it. [ 29 ] Obviously, if I find the accused opened the envelope and, read it, that is the end of the matter. [ 30 ] On the other hand, if I find the accused did not open the envelope what is the impact before me on the issue of knowledge and the burden on the Crown to prove the offence beyond a reasonable doubt. Section 95(1)(

a) of the Motor Vehicle Act provides as follows:

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

(

a) He or she is prohibited from driving ...commits an 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 or251(4), the court hearing the charge may admit into evidence a certificate of the Superintendent stating the information required bysubsection (4), and if the certificate of the superintendent is admitted into evidence, it is proof that the defendant had knowledge of theprohibition 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 BritishColumbia 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 addressrecorded in the records of the corporation and that the corporation or superintendent subsequently received a copy of a confirmation ofdelivery provided by Canada Post showing a recipient’s signature that, from a comparison with the signature on records of thecorporation, appears to be that of the person to whom the Notice of Prohibition was sent ... [31] Under Section 95(3), the addition into evidence of the certificate of the superintendent stating the prohibition was in effect onthe date of the alleged offence coupled with proof of service of the prohibition by registered letter or certified mail is proof that theDefendant had knowledge of the prohibition in effect at the time of the alleged offence.

In this case that much has been proven with thefiling of Exhibit “2”. [32] Mr. Cole argues that he did not have notice of the prohibition despite the conditions in Sections 95(3) and (4) having been metand therefore ought not to be convicted. This is because although he signed for the letter he neglected to open it and had no actualknowledge of the driving prohibition. [33] With respect to the impact of sections 95(3) and (4) counsel for the accused argues that the presumption of knowledge createdby the sections is rebuttable and in this case I should find that the accused has done so and should acquit.

Counsel argues that with theinclusion of the word “knowing” in the charging

section it creates a full mens rea offence to which the defence of due diligence is notapplicable. The court queried what it should do in the face of the decisions of the Provincial Court in R v. Wall 2010 BCPC 316 adecision of Mrozinski, J which basically came to the same decision as C.C. Baird-Ellen, J in R v. Amir-Hossein Chirazian 2007 BCPC354 , 2007 BCPC 0354. To allow counsel to address the issue raised in Wall and Chirazian supplementary argument wasrequested and made.

In supplemental argument in addition to the Wall and Chirazian cases as referred to by the Court, the accused citedand referred to the following cases: 1. R. v. Murphy [1997] BCJ 717; 2. R. v. Pontes (SCC), [1995] SCJ 70; 3. R. v. Anderson [1997] NBJ 376; and 4. R. v Pratt [1996] BCJ 320. [34] In addition to reviewing the cases cited on behalf of the accused, the Court refers to and reviewed the following cases: 1. R. v. City of Sault St. Marie [1978] SCR 1299; 2. R. v Gravelle [2002] BCSC 99; 3. R. v. Tantrum [2005] BCPC 427; 4. R. v. Forsyth [2002] BCPC 400; 5. R. v Rae [2003] PCBC 239; 6. R. v.

Butt [2000] BCSC 302; 7. R. v Briscoe [2010] SCC 13; 8. R. v. Sansregret (SCC), [1985] 1 SCR 570; 9. R. v. Jorgensen [1995] 4 SC 55 (SCC) 10. R. v. Oluwa [1996] BCJ No. 1065 (BCCA); 11. R. v. Vinokurov [2001] ABCA 113; and 12.

The Queen v Rees (SCC), [1956] S.C.R. 640 [35] Counsel for the accused argues that s.95 of the Motor Vehicle Act is a full mens rea offence in as much as the legislature inenacting s.95 only made it an offence if a person drives a motor vehicle on a highway knowing that he is prohibited from driving... [36] In the Pontes case the Court reviewed the reasons of Dixon, J (as he then was) in the Sault St. Marie case dealing with thecategory of offences and referred to in paragraph 21 Dixon, J’s description of offences in this manner:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, recklessness, must be proved by the prosecution either as an inference from the nature they had committed, or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act, prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonably believed in a mistake of a set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.... 3.

Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [ 37 ] Dixon, J. then went on to describe the manner in which the various offences could be categorized at para. 1326 (as follows): Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea.

An offence of this type would fall in the first category only if such words as “wilfully”, “with intent”, “knowingly” or “intentionally” are contained in the statutory provision creating the offence. [ 38 ] In the Pontes case the Court was dealing with the then s.94 of the Motor Vehicle , now s.92 not s.95. S.94 does not contain the word “knowing” as s.95 does. The majority of the Court in Pontes concluded that the then s.94 created an absolute liability offence. [ 39 ] In the Wall case the Court cited the decision of Baird-Ellen, J in R. v.

Chirazian where she placed a reliance on the decision in the Pontes case as authority for the proposition that s.95 creates a strict liability offence to which due diligence may be raised as a defence. Firstly, the Pontes case, was not dealing with s.95, and, secondly, the Wall case which followed Chirazian and the Chirazian case seemed to rely on the minority judgment in Pontes for the proposition that s.95 creates a strict liability offence. In a decision prior to Chirazian, Baird-Ellen, J in R. v. Murphy dealt with the offence of driving while prohibited contrary to s. 94 of the Motor Vehicle Act .

Counsel in that case, relying on the Pontes case, agreed that the offence was one of strict liability with the defence of due diligence being available to the accused. [ 40 ] Again, the Court in Murphy was dealing with the then s.94 of the Motor Vehicle Act not s.95 and counsel for the accused cites from the Murphy case at para. 15 as follows: “There appear to be few cases considering the application of the defence and due diligence to this type of prohibited driving offence, most likely because the accused is usually present for the imposition of the prohibition.

Under the authority of Pontes , above, the offence is clearly one of strict liability, which carries with it a minimal mental element to which the defence of due diligence applies. I note the wording of s.94 does not include the word knowing (as does s.88) so the extent to which the Crown must prove knowledge of the prohibition as part of its case may be reduced.” [ 41 ] A different conclusion from that in Wall was arrived at by the Court in the case of R. v. Tantrum .

In Tantrum , as here, counsel for the accused argued that knowledge is an essential element and that the Crown had a greater burden to prove knowledge of the prohibition. The Court agreed with the defence’s argument that s.95 was a full mens rea offence requiring proof of knowledge beyond a reasonable doubt and then went on to deal with the element of knowledge. [ 42 ] In the case of R. v.

Rae the Chen, J. in dealing with s.95 stated at para. 26 in reference to the Crown’s argument that the actus reus of the offence was driving respectively disagreed and stated: “driving is not an illegal activity and it is not the actus reus of any offence. While I acknowledge that the legislative language could have been more articulate, it is my view that the actus reas of this offence is driving while prohibited.

It is the knowledge of the prohibition that is the mens rea of the offence.” [ 43 ] I prefer the reasoning in the Rae and Tantrum cases as both dealt specifically with s.95 of the Motor Vehicle Act referencing the word knowing. In the Sault St.

Marie case as quoted from at para.1326: “Public welfare cases would prima facie be in the second category being strict liability offences ... an offence of this type referring to second category offences would follow in the first category (full mens rea offences) only if such words as “wilfully”, “with intent”, “knowingly” or “intentionally” are contained in the statutory provisions creating the offence as does s.95 of the Motor Vehicle Act” . [ 44 ] With respect to the accused knowledge that he was prohibited from driving, the provisions of the Motor Vehicle Act in particular ss.95 (3) and (4), previously quoted, provide a mechanism for proof of the accused knowledge of the prohibition by filing into evidence a Certificate of the Superintendent stating the information required by ss.(4) which was done in this case. (see R. v.

Gravelle ). [ 45 ] In R. v. Butt the Court stated that s.95 (3) permits the Crown to prove it’s case with respect to the knowledge of the accused by way of the referred to certificate, a condition of precedent to this method of proof being compliance with s.95 (4) as to the preparation of the certificate which was done in this case. [ 46 ] In The Queen v Rees the Court there refers on page 5 to Professor Glanville Williams’ treatment of the word “knowingly” in his thesis on criminal law wherein he sums up the jurisprudence on the matter as follows: “c.

We now see the influence of the word “knowingly”, used in a statute, upon the rules relating to ignorance and mistake. On principle the word knowingly has no extra effect the where crime requires intention, for intention itself presupposes knowledge of the circumstances. The word “knowingly” does, however, effect the position where the crime can be committed recklessly. If the word is not included in the statute, the party will be deemed to act recklessly unless he mistakes a relevant fact: simple ignorance is not enough

but if the word is inserted, simple ignorance becomes a defence, and it is only knowledge (or its equaivalent wilful blindness) that convicts.” [ 47 ] Counsel for the accused argues that the Pontes case does not stand for the proposition that s.95 is a strict liability offence. For the foregoing reasons I agree. I find that s.95 of the Motor Vehicle Act is a category one offence referred to in Sault St.

Marie requiring mens rea. [ 48 ] The Crown filed a certificate pursuant to s.95 (3) and (4) of the Motor Vehicle Act which imputes knowledge of the prohibition on the part of the accused, and, without more evidence would be the end of the matter. [ 49 ] In this case, the accused gave evidence and testified that, although he received and signed for the certified mail enclosing the notice of prohibition and certificate, he did not open it and thus did not have knowledge of the driving prohibition at the time he drove.

The accused argues that there is evidence here that he did not know about the driving prohibition and his evidence should raise a reasonable doubt with respect to that knowledge. While sceptical of the accused’s evidence that he did not open the envelope from the Superintendent I am in doubt whether he did or did not. [ 50 ] This, then, raises the issue of the accused’s knowledge at the time of the alleged offence and whether or not he was wilfully blind to the facts in the circumstances. Before I deal with wilful blindness, as Mr. Justice Lander stated in R. v.

Butt at para. 24: “.... the whole point of s. 95(4) is to circumscribe or restrict the means by which the Crown has permitted the unusual measure of proof by certificate under s.93”. [ 51 ] The procedural shortcut provided by s. 95(4) is restricted to a certificate signed by the Superintendent which we have in this case and was filed as an exhibit. [ 52 ] While counsel for the accused referred to the R. v.

Pratt case, he did not advance an argument that s.95(3) and (4) are unconstitutional but rather agrees that it creates a rebuttable presumption, which absent any evidence to the contrary, knowledge could said to be proven. The accused position seems to coincide with the decision of Judge Moon in R. v Forsythe where he state at para. 11 that: “I find that the presumption in s.95 (3) is rebuttable. I make that finding especially in light of the legislative history of s.95 and R. v.

Pratt [1996] BCJ 320 BCSC which is a Supreme Court decision of February 14, 1996 ... as I have stated I find that the presumption in s.95 (3) is rebuttable and therefore, I find it to be a permissive presumption from which I may, but not must draw an inference of guilt, in this case her knowledge”. [ 53 ] Having found that s.95 of the Motor Vehicle Act is an offence requiring proof of mens rea, the question arises was the accused wilfully blind. [ 54 ] In R. v.

Briscoe at para. 21 in the context of the mental element necessary for liability for murder as a part to the offence, Charron, J. explained how proof of wilful blindness suffices to establish mens rea: “wilful blindness does not define the mens rea required for particular offences rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make inquiries”. (see Sansregret v Queen and R. v.

Jorgensen . [ 55 ] As Pink, J. succinctly put it in Jorgensen (at para. 103): “a finding of wilful blindness involves an affirmative answer to the question, did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge”. [ 56 ] In R. v. Briscoe , Charron, J. went on to say (at para. 22): “courts and commentators who consistently emphasized that wilful blindness is distinct from recklessness.

The emphasis bears repeating”. [ 57 ] As the Court explained in Sansregret (at page 584): “Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know . He would prefer to remain ignorant .

The culpability and recklessness is justified by consciousness of the risk by proceeding in the face of it while in wilful blindness it is justified by the accused fault and deliberately failing to inquire when he knows there is reason for inquiry (emphasis added)”.

[ 58 ] In R. v. Oluwa, McEachern, C.J. ( as he then was ) in referring to the above noted passage said that: ( at p.91 ) “I wish to observe that proof of the clause in the above quote, “because he does not wish to know the truth”, cannot be part of the Crown’s burden. The reasons for the failure of the appellant to inquire, if such was the case, are so subjective that they could seldom be proven...

These words, in my view, are merely a characterization the law places upon the failure of someone to learn or recognize what should have been known if it was not known.” [ 59 ] The Court in Briscoe went on to say that (at para. 23): “it is important to keep the concepts of recklessness and wilful blindness separate”. [ 60 ] Glanville Williams explains the key restriction on the doctrine: “The rule that wilful blindness is equivalent to knowledge is essential and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget is very limited scope.

A Court can properly find wilful blindness only where it can almost be said that the defendant actually knew; He realized the probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone is wilful blindness. It requires in effect finding that the defendant intended to cheat the administration of justice.

Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge (emphasis added) see (criminal law “the general part”) 2 nd Ed. 1961, (at page 159) (cited in Sansregret at page 586).” [ 61 ] In Sansregret the Court goes on to quote further from Ganville Williams at page 157: “Knowledge”, then, means either personal knowledge or (in the licence cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception.

Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.” [ 62 ] Counsel for the accused argues on the evidence there is a reasonable doubt and refers to the accused’s evidence to the effect that he was moving and may have misplaced the letter with other things that he had picked up from the Post Office because he was accustomed to buying things on the internet and the like.

He asked that we keep in mind the accused is 23 years of age in the midst of moving and that to misplace the letter is not unbelievable that it does have some element of truth to it. [ 63 ] He argues that the accused testified in a very straight forward manner and points to the accused dealing with the investigating officer during the course of which dealings there was nothing said or done by the accused that would indicate that he knew he was prohibited from driving.

It is argued that while we can criticize the accused for many things, for him being negligent with this letter, and not being diligent about following thorough with his paperwork and perhaps being haphazard with his signature it is argued that here we have positive evidence that the accused did not know and that because it is a mens rea offence if the Court finds that the accused did not have knowledge than the right result is an acquittal. [ 64 ] On the evidence the conduct of the accused post receipt of the Certificate of the Superintendent on October 21, 2011 seems to fly in the face of his conduct prior to that, in particular, his response to the Superintendent of Motor Vehicle’s letter in August that the Superintendent intended to prohibit his drivers licence suggesting a five month prohibition to which the accused promptly filed a review letter which was received by I.C.B.C. on August 18, 2011. [ 65 ] Quoting from the letter the accused stated after requesting a review of the decision to prohibit his driving privileges in paragraph 2 as follows: “If it came down to it and you had to prohibit my licence I don’t understand why it would be for five months!

When people with infractions that have caused accidents have been given less or disciplinary action. My Class 5 is my job, and my life. As I work far from where I Iive, and I work as a mechanic, driving and fixing cars for a living, this prohibition would quite literally ruin my life. With no way to get to work, and even if I was at work I wouldn’t be able to do anything as I would not be able to drive. Obviously we need to work something out as I cannot lose my licence again now that I depend on it to make a living.

With the way our economy is, I can’t imagine you can condemn a 23 year old mechanic.” [ 66 ] The Crown argues that the accused having gone through all the trouble of receiving I.C.B.C.’s initial letter, which came by regular post, and then going to the trouble of filing a review request then did not open the certified mail received September 21, 2011 is unbelievable. The Crown suggests that it is beyond belief that he would not open the certified mail when he was expecting a reply.

The Crown says that the case here is on all fours with the decision in Wall albeit there is evidence before the Court here that the accused had received registered mail in the past being items that he had ordered on line. The Crown relies on Wall and says that the accused clearly was not diligent and on the accused’s own evidence and in submissions by his counsel it is conceded , that the accused did not exercise due diligence here.

I agree if the test is as set out in Wall, the evidence falls far short of due diligence on the part of the accused. [ 67 ] However, counsel for the accused says that being a full mens rea offence it is not necessary for the accused to show due

diligence. By the inclusion of the word “knowing” in the charging

section counsel for the accused concludes, based on the Sault St. Marie case, in particular, category 1 offences, that s.95 is a full mens rea offence. [ 68 ] Counsel for the accused says “knowing” and “knowingly” are the same but there is a line between due diligence and wilful blindness which in this case the latter has not been crossed.

He says wilful blindness brings with it a higher onus. [ 69 ] The Crown urges the Court to follow the Wall decision and expresses surprise that there has not been higher court decisions on point, in particular, dealing with categorization of s.95 as a full mens rea or strict liability offence. [ 70 ] Counsel for the accused agrees with Justice Taylor in the Gravelle case to the effect that once the Certificate of Superintendent has been admitted in evidence it creates a rebuttable presumption (relying the authority of Pratt ) and agrees that if the accused did not testify then that would be the end of the matter. [ 71 ] It is argued that the facts here are closer to the lack of due diligence and in his submission fall short of wilful blindness.

He argues that there is no indication that the accused expected a reply from the superintendent or that it would come by certified mail. It is pointed out that the initial letter from the Superintendent of Motor Vehicles indicating that, subject to review, the accused would be prohibited for driving came by regular mail. Counsel argues that given the accused alleged absence of knowledge of the prohibition the accused should be acquitted.

To find wilful blindness it is argued that the accused must have known that the letter came from the Superintendent and that he knew that the letter said he was prohibited but despite that knowledge, chose not to open it and says that would be, in his submission, wilful blindness. [ 72 ] Accepting the accused’s evidence that he did not open the certified mail from the Superintendent or having a doubt that he did does not end the matter. [ 73 ] The accused, in his evidence said that he was in the process of moving and although he signed for the certified envelope he never opened it, as a result he says he didn’t know he was prohibited.

Crown Counsel points out that in the accused’s evidence he testified that he had to be out of his current residence by the end of August, 2011 but because the house he was in being sold he had some time to move. The accused’s evidence about the move was contradictory, in as much as although he said he was normally in a rush and was moving, he said he did the move over a number of days.

I note the move was just down the street from 982 to 962 Darwin Avenue, Victoria, British Columbia. [ 74 ] On receipt of the Superintendant’s letter of proposed driving prohibition the accused promptly filed a letter with the Superintendent of Motor Vehicles in the middle of August, 2011 requesting a review of the proposed driving prohibition and agreed that he was expecting a reply. Initially, he said he was busy moving and that move started at the end of August and went into early September.

The certified mail he signed for was not received until September 21, 2011. [ 75 ] While he frequently ordered things over the internet which came by registered mail and he received tons of registered mail weekly, there was no evidence that he had made a recent order or was expecting some other registered post.

I agree with the Crown that if he was expecting some other registered post for stickers he had order, which on his evidence have a value of up to $150, that he would have opened it. [ 76 ] On cross examination he admitted, to his recollection, there were not any items that he ordered over the internet that he had not yet received. He admitted that it was possible that he had opened all of them and he didn’t know if the certified mail he picked up on September 21, 2011 was a set of $150 stickers he had ordered. [ 77 ] I agree with Crown Counsel that it wasn’t a priority for Mr.

Cole to find out what he had received in the mail and, while he was curious about what happened to his request for a review, he had not done anything about it. He made no enquiries. [ 78 ] While knowing that it was the Superintendent’s intention to prohibit him from driving and having filed a request for review of the proposed prohibition and knowing there was a need to make some inquiry, the accused declined to do so because I find he did not wish to know the truth.

He was not expecting any other certified mail. [ 79 ] Any other reasons for the failure of the accused to inquire is only within the knowledge of the accused and I find that upon receipt of the certified mail for which he signed, suspecting that it was from I.C.B.C. and realizing that, he refrained from opening the envelope because he wanted to be able to deny knowledge of the driving prohibition. [ 80 ] I do not accept that Mr. Cole was to busy in the middle of a move, the move I find having taken place some time prior to September 21, 2011.

He was not in the immediate throws of a move. [ 81 ] On his evidence Mr.

Cole said he was working and there was lot’s going on in his life and mail wasn’t a priority, albeit on the evidence, it was unclear to the Court why he was in such a rush. [ 82 ] While the Court is sympathetic to the accused plight, a reasonable doubt is not a doubt based upon sympathy, rather, it is based upon reason and common sense. [ 83 ] The concept of wilful blindness cannot be considered in a factual vacuum, in isolation from the reasonable inferences to be drawn from the known facts and evidence. [ 84 ] In this case, the accused, based on his own review letter could not be without his driver’s licence, and in the circumstances expecting a reply from the Superintendent of Motor Vehicles to his review request, I find that his failure to open the letter and obtain the answer to the question whether or not he was prohibited from driving, the accused was wilfully blind.

Being wilfully blind to the fact of his driving prohibition I impute knowledge to the accused and I am satisfied beyond a reasonable doubt that the Crown has proven all the essential elements of the offence as charged and I therefore find the accused guilty of driving while prohibited contrary to s.95(1) of the Motor Vehicle Act .

BY THE COURT _____________________________ The Honourable Judge R. Sutton