Her Majesty the Queen - v. -, 2013 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 030 Date: March 5, 2013 Ticket Numbers: 7126318, 7126319 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Twila M. Deforest Appearing: Ms. L. O ’Connor For the Crown Mr. T. Forsyth For the Defendant DECISION B. MORGAN , J INTRODUCTION [ 1 ] Ms.

Deforest has been charged with two offences under The Traffic Safety Act , speeding in excess of 50 kilometres over the speed limit on 7126318, contrary to s. 199(2) of the Act , and disobeying a signal to stop by a peace officer, contrary to s. 209.1(4) of the Act . Both of these tickets charge liability to her under s. 273(2) of the Act , which can make the owner liable for certain offences under the Act .

[ 2 ] The facts are not really in dispute. The issue here is that Ms. Deforest claims that s. 273 of the Act is an offence of what is known as strict liability, such that if she can show due diligence, she is entitled to an acquittal. FACTS [ 3 ] On January 27, 2012, at approximately 10:00 p.m., two police officers were on the highway from Melfort heading east towards Tisdale. As they approached a turn off to the community of Star City, roughly halfway between those two cities, they noted a vehicle cross well in front of them, and proceed southbound on a grid road.

The officers decided to check the operator of that vehicle for sobriety, and therefore turned southbound on that grid road in order to speak to the operator. [ 4 ] The police vehicle reached speeds close to 100 kilometres per hour on that grid road, and was not closing the distance on the vehicle. At one point, they were approximately one kilometre behind that vehicle, and the vehicle had accelerated to 114 kilometres per hour. The officers therefore turned on the emergency lights, and pursued the vehicle for approximately one mile, still without eliciting any response from that vehicle.

They also then turned on the police vehicle’s siren, and continued pursuing the vehicle, although they were not successful in stopping it. The speed limit on this grid road was 80 kilometres per hour. The highest speed recorded for the vehicle being pursued was 136 kilometres per hour. [ 5 ] At one point, the vehicle they were pursuing had to slow to negotiate a sharp turn in the road, and the police were at that point close enough to observe the licence number of the vehicle, which turned out to be a vehicle registered to Ms. Deforest.

However, that is as close as they got to that vehicle, and they were not able to identify the driver. [ 6 ] The officers discontinued the pursuit, due to the high speeds involved, and after running the licence plate on their computer, spent some time that evening trying to locate the vehicle, although they were unsuccessful in doing so. Thus, they served Certificates of Offence for the above noted charges on Ms. Deforest, relying on s. 273(2) of the Act . [ 7 ] Ms.

Deforest testified that she resides at her parents’ residence approximately nine miles south of Tisdale, and that she operates her parents’ contracting business when they are, as they were at this time, out of the country during the winter. She testified that she has two brothers, Brian and Gordon Deforest, and that she is aware that her brother Brian had no driver’s licence.

As her brother Brian worked in the family business on occasion, even though business was slow in the winter, she stated it was “mostly my responsibility to make sure he gets to work, appointments, etc.”, and that she would therefore usually be doing the driving. However, she testified that she registered the vehicle that was involved in this incident so either of her brothers could arrange to have a driver take them to appointments, work, etc., if she was busy with her work or her childcare responsibilities.

In cross-examination, she stated that she was aware that both her brothers had convictions for driving while disqualified, hence the reference to either of her brothers being able to have access to the vehicle, albeit through a third party driver. [ 8 ] She testified the vehicle was left mostly between her brother’s homes (her brothers are both living in the vicinity) so that whoever was giving either of them a ride to wherever they would have to go at that particular time could go there and take the vehicle she had registered, rather than have these individuals put wear and tear on their own vehicle.

She testified that the use of the vehicle was definitely not to be for any purposes other than going to and from work, getting groceries, attending necessary appointments, etc. As she put it, “it was not to be used for fun”. ANALYSIS [ 9 ] I will start first with the question of whether or not Ms. Deforest can bring herself within s. 273 of the Act . [ 10 ] Section 273(1) defines “authorized person” as “a person who is in charge of a vehicle with the express or implied consent of the owner of the vehicle”.

An “unauthorized person” is “a person who is in charge of a vehicle without the express or implied consent of the owner”. Thus, in these circumstances, the argument is that the definition of “authorized person” would include a person who was operating the vehicle under the conditions that Ms. Deforest laid down to her brothers, that being that the driver who would be driving

either one of them around must possess a valid operator’s licence and must follow the rules of the road. [ 11 ] Section 273(2) makes the owner of the vehicle liable if a vehicle is involved in the commission of an offence under the Act unless the owner satisfies the Court that at the time of the offence, the vehicle: (

a) was not being operated and had not been parked or left by the owner; and (

b) was not being operated and had not been parked or left by any authorized person in charge of the vehicle. [ 12 ] I accept that Ms. Deforest was not operating the vehicle. However, on Ms. Deforest’s own evidence, she has no idea who was driving the vehicle on January 27. Thus, on the requisite balance of probabilities, she has failed to satisfy me that the vehicle “was not being operated ... by any authorized person in charge of the vehicle”. [ 13 ] Turning to the question of due diligence, the defence relies on the case of R. v. Auto Clearing

(1982) Ltd. and Northtown Motors Ltd. , 2007 SKPC 69 , a decision of Judge Singer of this Court, who held that the defence of due diligence does apply to offences under s. 273 of the Act . Judge Singer sets out the history of the strict liability offences generally in that decision, and there is no need to repeat that analysis here. In brief, the doctrine of due diligence allows for an individual who would otherwise be liable for the offence, such as Ms.

Deforest in this case, to escape liability if she can establish on a balance of probabilities that she has taken all reasonable steps to prevent the happening of the prohibited act. [ 14 ] On the facts of this case, I am unable to find that Ms. Deforest has met that standard placed upon her for the following reasons: (1) knowing each of her brothers were disqualified from driving, she instructed her brothers as to the conditions she was placing on whoever would drive the vehicle.

She could have no way of knowing that her brothers passed on those instructions to the drivers she had authorized to operate that vehicle. Even if they had, the conditions she wanted to impose, through her brothers, on some unknown driver, do not have any bearing on the question of whether or not a particular driver was authorized to have the vehicle. Clearly, neither of her brothers could be an “authorized person”, as she specifically intended that neither of them was to drive the vehicle;

(2) Ms. Deforest did not know where the vehicle was located, at any particular time. She testified it would be between her two brothers’ houses, both within reasonable proximity of each other. However, when pressed, she agreed that she was not aware “100 percent of the time” where the vehicle was actually located. I think her admission is less than candid; I would suspect she had no idea at any time where that vehicle was;

(3) Ms. Deforest testified that she was not sure “100 percent of the time” as to how often the vehicle was being used, again demonstrating a lack of control; (4) when pressed if she knew in general who drove the vehicle, it became clear she simply had no idea whatsoever as to who may have been driving that vehicle.

She did not keep any kind of a list or document in any way as to who was driving the vehicle, or when; and (5) the keys were left with the truck, again demonstrating a complete lack of control of the vehicle. [ 15 ] Due diligence does not require that an individual guarantee that an offence will not occur; rather, the individual is required to demonstrate that she took “all reasonable steps”. On the facts of this case, I am not satisfied that the steps Ms. Deforest took with respect to this vehicle fulfilled the doctrine of due diligence.

She has authorized an entire group of unidentified and unidentifiable people to drive her vehicle. In my view, such a wide-ranging “authorization” would completely frustrate the intent of

section 273 of the Act . [ 16 ] In order to escape liability on strict liability offences such as this, it is the onus of the defendant to establish due diligence on a balance of probabilities. She has failed to do so. [ 17 ] She is guilty on each of the tickets.

B. Morgan, J