R. v. Nelson, 2018 BCPC 220

Citation: R. v. Nelson 2018 BCPC 220 Date: 20180829 File No: 44902-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARRYN ALLEN NELSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Crown: A. Vandersluys Counsel for the Defendant: M. Patterson Place of Hearing: Penticton , B.C. Dates of Hearing: June 1, 8, August 16, 2018 Date of Judgment: August 29, 2018 Introduction [ 1 ] On May 25, 2017, police saw Mr Nelson driving a motorcycle on Maron Valley Road near Penticton. Mr Nelson was disqualified pursuant to

section 259 of the Criminal Code from operating any motor vehicle on “any street, road, highway or other public

place”. He was charged with driving while disqualified. [ 2 ] Mr Nelson contends that because Maron Valley Road is on private property, namely property owned by the Penticton Indian Band and a reserve member, Enias Krueger, it is not a “public place” and outside the reach of the prohibition.

In the alternative, if he is wrong, Mr Nelson argues that his mistaken belief that the road is not a public place is a mistake of fact and a defence to the charge. [ 3 ] The Crown on the other hand, argues that despite the road’s location on private property, it is used frequently by members of the public and falls within the definition of a “public place” for the purposes of the prohibition. Since Mr Nelson was aware of the public’s use, his mistake is one legal

interpretation, not one of fact but one of law. Issues 1. Is Maron Valley Road a “street, road, highway or other public place”? 2. If Maron Valley Road is a public place, was Mr Nelson’s mistake one of fact or law? Analysis 1. Is Maron Valley Road a “street, road, highway or other public place”? [ 4 ] The law is well settled that when it comes to roads on reserve lands, the question is not ownership or whom the road is dedicated for, but rather whether the public for the passage of vehicles uses the road.

R v Kruger , May 29, 2009, Penticton Provincial Court, No. 37037-1; R v Bonneau , 2008 BCSC 845 ; R v Seymour, 2018 BCPC 103 ; R v Fiddler , 2004 SKQB 113 ; R v McNab, 2014 SKPC 180 ; [ 5 ] In the case at hand, the evidence clearly establishes that both reserve and non-reserve residents use Maron Valley Road with some regularity. The road is maintained by Argo Road Maintenance, has the usual signage of a public road, and connects Highway 3A and Green Mountain Road.

Non-reserve people live along the road and use it to travel to and from their homes. [ 6 ] Maron Valley Road is a public place. [ 7 ] Even if only residents living on the reserve used the road, I still would have reached the same conclusion. The term public can and does include a limited group of people like reserve residents. [ 8 ] In Spencer v Lutkehaus, [1986] BCJ No 130 (CA) , the court considered the definition of highway under the Motor Vehicle Act. The definition included reference to both the “general public” and the “public”. The Court of Appeal interpreted the latter as being broader in scope.

The court found that such places as supermarket parking lots or service stations might not be thought to be used by the general public, but only by patrons of the particular supermarket or service station and, therefore not the general public per se. [ 9 ] A contextual approach to the

interpretation of

section 259 also leads to the same conclusion. Disqualification orders are imposed by the courts to punish the offender and protect the public. Aboriginal people living on the reserve are no less deserving of the same protections that members of the general public are owed through the imposition and enforcement of driving prohibitions. Their lives are no less important than those who occupy the streets and roads off reserve. R v Keeper , 2014 ONSC 6149 2.

If Maron Valley Road is a public place, was Mr Nelson’s belief mistake one of fact or law? [ 10 ] In the alternative, Mr Nelson argues that the evidences raises the defence of mistake of fact. He says because he was mistaken about the road being a public place, he lacked the intent necessary for the offence. [ 11 ] Mr Nelson does not have to prove this defence applies. The Crown must prove beyond a reasonable doubt that it does not. [ 12 ] Mistake of fact is distinguishable from mistake of law.

Generally, mistake or ignorance of the law is not a defence. [ 13 ] Mr Nelson argues that he was mistaken in fact because he did not know that the Maron Valley Road was a public place for the purposes of the prohibition. The Crown responds that, while he may have been mistaken, the mistake was one of legal

interpretation and therefore one of law. [ 14 ] A mistake of fact exists when the accused is mistaken in his or her belief that certain facts exist when they do not, or they do not exist when they do. By contrast, a mistake of law exists when the mistake relates not to the facts but rather the scope or

interpretation of the law. [ 15 ] For example, a mistake as to whether a gun is loaded is mistake of fact; a mistake as to whether pointing a gun at someone is an offence constitutes a mistake of law. [ 16 ] The following cases illustrate the distinction between fact and law when an accused is mistaken as to whether an activity, like

driving, is or is not permitted in a specific location. [17] In R v Jones, (SCC), [1991] 3 SCR 110, the appellant was convicted of illegal gaming. His defence was that hemistakenly believed that the Criminal Code gaming provisions did not apply on a reserve. The Supreme Court of Canada upheld theconviction stating the accused’s mistake was a mistake of law and did not embrace any mistake of fact. [18] In R v Legrande, 2014 ABCA 192, the accused were charged with unlawfully hunting in a wildlife sanctuary.

The accusedwere both First Nations and claimed an Aboriginal right to hunt on Treaty lands which prima facie included sanctuaries. They wereunaware of a legislative enactment barring hunting in the sanctuary. They defended themselves based on mistake of fact and wereconvicted. [19] The Court of Appeal upheld the convictions and explained that a mistake of fact arises where a person is aware of the factuallimits of a legal prohibition but through a factual mistake exceeds those limits.

A mistake of law occurs where a person engages in aprohibited conduct because they did not know the factual limit of the prohibition. [20] Finally, in R v Osborne, (2002) 39 MVR (4th) 35 (ONCJ), the accused’s mistaken belief that his driving prohibition applied onlyin the province in which it was imposed constituted a mistake of law as opposed to one of fact. [21] In the case at hand, Mr Nelson’s subjective knowledge is not in dispute.

He knew he was travelling on Maron Valley Road,and although he knew, the public used the road he did not believe driving on it was contrary to his prohibition because the road is onprivate or reserve land. [22] Mr Nelson was mistaken as to the legal scope of the driving prohibition; this was a mistake of law, not fact. Conclusion [23] Mr Nelson is guilty of driving while disqualified. _______________________ The Honourable G. Koturbash Provincial Court Judge