R. v. Fortune Date:, 2010 BCPC 74

Citation: R. v. Fortune Date: 20100427 2010 BCPC 0074 File No: 71739 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW DAVID JAMES FORTUNE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: R. McGowan Counsel for the Defendant: P. Henderson Place of Hearing: Abbotsford , B.C. Date of Hearing: April 13, 2010 Date of Judgment: April 27, 2010 [ 1 ] This is an offence of drive while prohibited contrary to section 95 (1) of the Motor Vehicle Act. The facts of the offence are rather typical of its type. The defendant had been stopped for speeding.

He was prohibited from driving by the Superintendent pursuant to the Motor Vehicle Act. [ 2 ] The question raised relates to whether it could be said there was an officially induced error. The defense says that the Superintendent’s documents are confusing.

That they are of such a nature that they resulted in the defendant possessing an honest but mistaken belief that he had not been prohibited as he thought that he was entitled to drive until he received word of his request for a review of the prohibition by the Superintendent. [ 3 ] As I reflect on this matter, there is the issue of whether the mistake complained of is more properly a mistake of law rather than of fact. [ 4 ] A review of exhibit 3 reveals that the defendant had been sent a Notice of Prohibition dated February 13, 2009.

It includes a sentence that he had previously been notified of the intention to prohibit him from driving and an invitation to make submissions to either set aside the prohibition or reduce its duration. Furthermore, the letter stated that as the defendant had not responded, a 5 month prohibition was to be imposed. Its commencement date was either the date that he acknowledged receipt of exhibit 3 or a notice of prohibition was personally served upon him.

[ 5 ] From exhibit 4 the defendant was served with a Notice of Prohibition by a police officer on February 17, 2009 at 2:39 pm. This exhibit, states that the prohibition commences immediately upon service of the Notice, subject to a later time of commencement as may be set out under the Temporary Driver’s License portion of the document. That Temporary Driver’s License portion of the notice states his license expired at 3 pm on February 17, 2009. [ 6 ] In exhibit 5, the Superintendent received a letter from the defendant requesting a review of his license prohibition.

This is date stamped by ICBC on February 18, 2009. There is no date as to when it was written. It is quite evident from its content that the defendant is referring to some other letter by the Superintendent other than that marked as exhibit 3. This other letter is very likely one inviting him to make submissions concerning the reduction or cancellation of the prohibition which was alluded to in exhibit 3. Whatever the contents might be of that other letter, it was not made an exhibit in these proceedings. [ 7 ] Exhibit 6 is a letter from the Superintendent dated March 30, 2009.

It reviewed the submissions made in exhibit 5. The Superintendent confirmed the prohibition which had been served by the police officer on February 17 2009. [ 8 ] The offence date for driving while prohibited is April 21, 2009. [ 9 ] I note of the Superintendent’s documents, there is nothing before me which states that the defendant ever received a copy of exhibit 3 or 6. [ 10 ] On the other hand,

section 82 and 84 of the Motor Vehicle Act sets out the effect of documents held by the Superintendent. I do not intend to review it’s particulars as the decision of R v McIver

(2005) BCJ No. 2582 discusses its details. What is of import is the legislation mandates the introduction of the Superintendent’s records into court and that the record is evidence of the facts stated therein. [ 11 ] As I review the established evidence, the defendant’s address, name and date of birth are consistent throughout the documents. [ 12 ] The defendant explains he did not receive exhibits 3 or 6. He offered that the reason he did not get exhibit 6 is that he had moved.

No explanation was given as to why he did not receive exhibit 3. [ 13 ] He added he had received an earlier correspondence from the Superintendent inviting him to make submissions as to why he should not be prohibited.

In response he wrote exhibit 5. [ 14 ] As I commented earlier, it is likely some earlier correspondence from the Superintendent indeed exists, given the context of exhibit 6 when reviewed against the other exhibits. [ 15 ] The defendant says he thought he could still drive as he awaited the outcome of the Superintendent’s adjudication of exhibit 5. [ 16 ] I am very skeptical about the defendant’s evidence.

His explanations in my view are self serving. [ 17 ] As I consider his expressed state of uncertainty about his prohibition due to his understanding of the documents, I fail to see how this can be reasonably held in light of exhibit 4, the notice of prohibition as served by the police officer. It is very clear and unambiguous. He was prohibited from driving as of February 17, 2009. [ 18 ] Furthermore, even if it could be said he had some misunderstanding of the effect of the documents, his mistake is one of law, not fact. A mistake of law does not provide him with a defense.

The defendant’s reliance on a document, that is not an exhibit before this court and his thought that he could still drive until his submission for review had been completed, not only lacks evidential strength but as well does not amount to officially induced mistake. He is mistaken about the effect of the prohibition as served by the officer. A plain reading of the document prohibits him from driving. It says nothing about the suspension being held in abeyance until a review is completed. For guidance on the effect of a mistake of law versus fact, I refer to the decision of R v Schellenberg

(2002) BCJ No. 332 . [ 19 ] Upon the whole of the evidence I find the Crown has proven its case beyond a reasonable doubt. I convict the defendant. _____________________________ B.G. HOY Provincial Court Judge