r v. Joseph, 2021 QCCQ 8374

Director of Criminal and Penal Prosecutions c. Moster 2021 QCCQ 8374 JL4783 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD “Criminal and penal division” N° : 460-61-018398-204 460-61-018397-206 DATE : July 13, 2021 ______________________________________________________________________ PRESIDING: CAROLINE MEILLEUR, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

Joseph Moster Defendant ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ [ 1 ] Mr. Moster was intercepted on August 13, 2019, while he was driving a heavy vehicle transporting dangerous substances, specifically polymeric beads. [ 2 ] When he was intercepted, the defendant did not have his training certificate or a copy of it with him. He had a Quebec learner’s licence to drive a heavy vehicle (class 1) and a valid Quebec driver’s licence to drive a regular vehicle (class 5).

He was accompanied by a person holding a valid class 5 driver’s licence. [ 3 ] As it appears, Mr. Moster is a new immigrant to the country, and he held, upon arriving, an International Driver’s Permit that allowed him to drive a heavy vehicle. [ 4 ] Mr. Moster is charged with two separate offences. The first is: As the driver of a road vehicle transported dangerous substances, without carrying the original or a copy of his training certificate, contrary to

section 32.3 of the Transportation of Dangerous Substances Regulation . [2] [ 5 ] The second is: As a holder of a learner’s licence drove a vehicle, without being assisted by a person who has held, for at least two years, a valid driver’s licence of the appropriate class for driving that vehicle, contrary to

section 99 of the Highway Safety Code . [3] [ 6 ] Concerning the infraction of not having his training certificate, the evidence is quite clear and undisputed. The defendant admitted that he was transporting dangerous substances and that he was not carrying his certificate. He obtained an electronic copy of it through his dispatcher upon request while he was stopped. [ 7 ] This is a strict liability offence. The defendant can exonerate himself by demonstrating that, on a balance of probabilities, he

acted with due diligence to avoid the infraction. This involves a consideration of what a reasonable person would have done in the same circumstances. The Court notes that a reasonable person is a qualified person undertaking the same activity. [ 8 ] Anyone choosing to become involved in activities posing a danger to the public assumes an obligation to take whatever measures may be necessary to prevent harm. [ 9 ] The Court points out that transporting dangerous substances is a highly regulated industry and is potentially dangerous to the public.

Drivers in this industry have to make an effort to fulfill their legal obligations. Drivers in this industry must take serious steps in order to comply with the regulations. [ 10 ] The defendant thought he had his certificate with him. This is not enough to meet the due diligence defence. He did nothing to ensure that he had it with him before leaving.

As was shown, electronic copies are available in a very short time. [ 11 ] The defendant has not convinced the court that he acted with due diligence. [ 12 ] We will now move on to the second file. [ 13 ] Upon arriving in Canada, the defendant had an International Driver’s Permit from the Philippines. [ 14 ] Around May 2019, he exchanged it for a Quebec driver’s licence, class 5. [ 15 ] Later, around July of the same year, he applied for a class 1 and obtained a learner’s licence. [ 16 ] The defendant argued that he was authorized to drive a class 1 vehicle without being accompanied since he has an International Driver’s Permit that allows him to do so. [ 17 ] He bases his argument on

section 88 of the Highway Safety Code , [4] which reads as follows: 88 . Notwithstanding sections 85 and 86 , a non-resident holding an International Driver’s Permit may, while it is valid, drive the road vehicles he is authorized to drive by the licence on the basis of which the International Driver’s Permit was issued to him. [ 18 ] However,

section 91 of the Code provides : 91. Any person holding a driver’s licence issued outside Canada who settles in Québec may on request, provided the particulars and validity of the holder’s title can be verified directly with the administrative authority concerned through the use of information technology, exchange that licence, without undergoing a proficiency examination, for an equivalent driver’s licence issued by the Société. … However, the person must pass the proficiency examinations referred to in

section 67 to obtain a licence to drive a bus, a minibus, a motorcycle or a commercial vehicle or to operate an emergency vehicle. [ 19 ] The common definition of exchange is “ to give goods or services and to get goods or services of equal value in return”. [5]

[ 20 ] When the defendant exchanged his International Driver’s Permit for a class 5 driver’s licence, he was given the equivalent licence without examination. He then gave up his International Driver’s Permit. [ 21 ] When he asked for his class 1 driver’s licence, he had to pass the proficiency examinations referred to in

section 67, since the vehicle he wanted to drive is a commercial vehicle as defined in

section 4 of the Code as a motor vehicle mainly used for the transportation of property. [ 22 ] The defendant admitted taking the examinations. [ 23 ] As soon as the defendant exchanged his International Driver’s Permit, he was subjected to mandatory duties under the Highway Safety Code . In other words, he cannot benefit from both licences, since he decided to exchange it for a Quebec licence. [ 24 ] The exception prescribed by

section 88 can no longer be applied to the defendant since he exchanged his international licence. He is therefore subject to sections 66 and 99 of the Code : 66. A person applying for a licence to drive a road vehicle, except a licence of a class determined by regulation, must have held a learner’s licence for the period fixed by regulation. The period may vary according to the class of licence. … 99. The holder of a learner’s licence must, when driving a road vehicle …, be assisted by a person who has held, for at least two years, a valid driver’s licence of the appropriate class for driving that vehicle.

The person must be seated beside the holder of the learner’s licence, and be in a position to give him assistance and advice. [ 25 ] The defendant was driving a class 1 vehicle with a learner’s licence, and the passenger held a class 5 licence. Therefore he was not assisted by a person holding the appropriate class. [ 26 ] His class 1 licence is clear. It is a learner’s licence from Quebec. [ 27 ] The evidence is clear, and the prosecution has proved the infraction beyond a reasonable doubt.

FOR THESE REASONS, THE COURT : [ 28 ] FINDS the defendant guilty of the infraction in file 460-61-018397-206 . [ 29 ] CONDEMNS the defendant to pay a fine of $90 with costs within the next sixty (60) days of his judgment. [ 30 ] FINDS the defendant guilty of the infraction in the file 460-61-018398-204 . [ 31 ] CONDEMNS the defendant to pay a fine of $200 with costs within the next sixty (60) days of this judgment.

__________________________________ CAROLINE MEILLEUR PRESIDING JUSTICE OF THE PEACE Mtre Juliette Ménard-Reid Counsel for the prosecution The defendant is not assisted by an attorney. Date of hearing: April 30, 2021 [1] The judgment was rendered orally on July 13, 2021. As permitted by Kellogg’s Company of Canada c. P.G. du Québec , [1978] C.A. 258 at 259-260 , the Court reserved the right to modify, expand and restructure its reasons. The undersigned has rearranged the reasons merely to improve the presentation and clarity.