R. v. Jorgensen, 2016 MBPC 48

Cite #2016 MBPC 48 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Crystal Schwartz, for the Crown ) - and - ) ) Mark Wasyliw, for the Accused Garnet Watkins, ) ) ) Judgment delivered: October 24, 2016 ) CORRIN, P.J. [ 1 ] The accused is charged with driving while disqualified pursuant to section 259(4) of the Criminal Code . The actus reus of the offence is admitted by defence but not the mens rea.

Defence is of the view that the defendant was, because he had been issued a Manitoba driving license in June 2015, a victim of officially induced error as to his eligibility to drive in Manitoba, which entitles him to either an acquittal or a judicial stay upon the charge before the Court. Defence counsel provided the Crown with advance notice of its defence. [ 2 ] The background facts of the matter are relatively simple and straight forward. Mr. Watkins was involved in an accident in Thunder Bay, Ontario in July of 2014.

On October 20 th , 2014 he pled guilty pro se to a charge of over .08 and was prohibited from driving for one year pursuant to section 259(4) of the Criminal Code . In June of 2015, having moved from Thunder Bay to Winnipeg, he attended Manitoba Public Insurance Corporation (MPIC) and applied for and obtained a Manitoba driving license. The only evidence of what transpired at such time was provided by Mr. Watkins.

According to him he was asked no questions about his driving history by the person taking the application; that it was only required that he take a computer style test respecting his knowledge of Manitoba driving laws and regulations. It was his evidence that he thought his October 20 th , 2014 license suspension only pertained to the Province of Ontario and that he had simply assumed at the time that MPIC would be aware of his Ontario license status.

It was the accused’s position that he’d only become aware of his true status when a Winnipeg Police officer pulled him over and arrested him with respect to the charge before the Court on September 7 th , 2015. Two letters, both from MPIC were filed as exhibits by defence in corroboration of such contention – a letter signed by the Registrar of Motor Vehicles dated September 23 rd , 2015 advising that he had been suspended pursuant to

section 264 of the Manitoba Highway Traffic Act from operating a motor vehicle for a period of 5 years commencing on October 20 th , 2014 and a second letter dated September 30 th , 2015, also signed by the Registrar of Motor Vehicles, informing him that he was required to return his Manitoba driver’s license immediately upon receipt of such notice.

The second letter also advised that the matter would be referred to police if he didn’t comply with the Registrar’s instruction. [ 3 ] The law in relation to mistake of fact based on officially-induced error of law is discussed and enunciated by the Supreme Court of Canada in R. v. Jorgensen , [SCJNo.95](Q.L.). The basic constituent elements of same are set out therein as follows: 1. The error must be both one of fact or of mixed law and fact; 2. The next step requires some proof that an accused considered whether his conduct might be illegal and sought advice as a consequence.

The advice sought must have come from an appropriate official, someone who a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. Advice from an appropriate official is to be presumed to be reasonable “unless it appears on its face to be utterly unreasonable” (para. 30 and 33). 3.

To benefit from this defence the accused must prove, on a balance of probabilities, that he did seek and obtain the advice relied upon before the offence was committed and by showing that the questions posed to the official were specifically tailored to the accused’s situation. [ 4 ] The Crown submits that the accused’s failure to disclose his October 20 th , 2014 driving prohibition to the MPIC official disqualify him from benefitting from the exceptional legal defence described in Jorgensen.

In support of its’ argument the Crown argues that Exhibit 1, the October 20 th Prohibition Order reveals that the driving suspension was Canada-wide and that judicial notice should be taken of the asserted “fact” that the issuing judge must have spoken the proper and customary words of prohibition, including a reference to it’s being in force anywhere in Canada during the following 12 months. In support of her argument she cited R. v. Osborne , a 2002 decision from the Ontario Court of Justice. This decision, rendered by Mr. Justice D.M.

Stone, involved a case that was quite similar to our matter but with one very distinct difference – the Prohibition Order, which the accused had confirmed had been read to him and which he had received a copy of, was described as clearly stating the words “1 YEAR CANADA WIDE” in block letters. Such was not the situation in our case. The October 20 th Order (Ex. 1) does not refer to it being in effect on a Canada-wide basis. Indeed, it is this

Court’s opinion that the wording employed is not even ambiguous. Another distinction between the Watkins and Osborne cases lies in Justice Stone’s conclusion that the “court information” revealed the prohibition to be Canada-wide, “strongly” suggestive that the “presiding judge orally used the proper and customary words of prohibition, including the fact it applied anywhere in Canada”. No such inferences arise in our case as no such evidence was placed before this Court by the prosecution. I therefore conscientiously declare that I have no reason to believe that Mr.

Watkins prevaricated with respect to his lack of knowledge about the Canada-wide effect of the October 20 th Prohibition Order. As such I do not agree with the Crown’s assertion that he failed to give accurate information to the MPIC official. There is no evidence suggestive of same before this Court. Indeed Mr. Watkins asserted that he’d never been asked anything about his past driving or license history when he applied for his Manitoba license. Therefore, I conclude, on the unique facts of this case that I am satisfied that Mr. Watkins is entitled to benefit from the defence of officially-induced error.

The defence is made out as there is a proven evidential nexus between MPIC and the Registrar of Motor Vehicles – the two letters in evidence as exhibits 2 and 3. These exhibits clearly reflect a close connection between MPIC and the Registrar of Motor Vehicles, the latter being described in Jorgensen as “an appropriate person to give advice about driving offences, both federal and provincial” (para. 30).

On this point I further observe that it seems passing strange, given the technological infrastructure available to government administrators, that only the police and not MPIC was capable of discerning the existence of the Canada-wide Ontario issued Prohibition Order. On the basis of the forgoing reasons I hereby acquit the accused of the charge. “Original signed by” Corrin, P.J.