Her Majesty the Queen - v. -, 2011 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 053 Date: March 31, 2011 Information: 25203800 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jamie Lee Curtis Poitras Appearing: Bryce Pashovitz For the Crown Ron Piché For the Accused DECISION M.L. GRAY , J BACKGROUND [ 1 ] Mr.

Poitras was charged on the 17 th of July 2010, with operating a motor vehicle while disqualified from doing so, contrary to s. 259(4) of the Criminal Code and on the same date, with breaching a probation order made June 30, 2010, by failing to keep the peace and be of good behaviour contrary to s. 733.1(1) of the Criminal Code .

[ 2 ] Evidence at trial came from one witness, Constable Ryan Gieb; three exhibits were filed. The accused chose not to testify. [ 3 ] At the conclusion of the trial, counsel requested leave to file written materials and the matter was adjourned for decision to March 31, 2011. The defence relies on the following: R. v. Liptak, [2009] A.J. No. 1271 (Alta P.C.) and R. v. Crawley, [2009] N.S.J No. 660 (Nova Scotia P.C.) . Counsel for the Crown filed a written brief along with the following cases: R. v. Dumais, 2009 SKQB 481 and R. v. Larsen, 1992 CarswellSask 6 .

EVIDENCE [ 4 ] Constable Gieb was on duty on July 17, 2010 when, at approximately 10:34 p.m, he stopped a vehicle which had a burned out taillight. [ 5 ] The officer approached the operator and requested his driver’s licence and registration. The operator indicated that he did not have a valid licence and was asked to return to the patrol car so that his identity could be confirmed. Using the computer system in the patrol car, the officer established the driver to be Mr. Poitras and received information that he was prohibited from driving. As a result, Mr.

Poitras was arrested and provided his rights to counsel. [ 6 ] The officer indicated that the accused was polite, respectful and cooperative. [ 7 ] The vehicle was seized as the officer also received information that it could be impounded for thirty days. [ 8 ] A ticket for the burned out taillight was not issued; instead, the accused was given an inspection notice which allowed him to make the repair and have it inspected at the police department. [ 9 ] Three exhibits were filed with the Court: 1.

P-1: A Certificate of Disqualification or Prohibition signed by Nichole Berry, Supervisor Acting Registrar of Motor Vehicles for the Province of Saskatchewan, which indicates that the records maintained with respect to Jamie L. Poitras (born November 13, 1989) show that Mr. Poitras was prohibited from operating a motor vehicle on June 30, 2010 pursuant to s. 259 of the Criminal Code for a period of one year; 2. P-2: A Probation Order, dated June 30, 2010 for six months which required that the accused keep the peace and be of good behaviour; 3.

P-3: Information #43397814 which discloses that on June 30, 2010 the accused entered a guilty plea to a charge of driving while disqualified and was fined $1,000.00 and a victim fine surcharge of $150.00.

That document also includes an order of driving prohibition which says in part “the said offender is hereby prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of one year and the offender is/is not authorized to operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period provided the offender qualifies for, registers in and participates in an alcohol ignition interlock device program established under the law of the province in which the said offender resides.” [ 10 ] The Order of Driving Prohibition also says under the heading “Notice of Offender”: You are hereby informed that in addition to the period of prohibition ordered by the Court a period of suspension of your driver’s licence

may occur under the provisions of The Traffic Safety Act and further I, Jamie Lee Curtis Poitras, of 1202 Avenue N South, Saskatoon, Saskatchewan hereby acknowledge that I have read over the within Order of Driving Prohibition (or that the Order of Driving Prohibition has been read over to me) and that I understand the contents. I further acknowledge that I have been informed of the provisions of subsection 259(4) of the Criminal Code which are printed on page 2 of this document. I further acknowledge receipt of a copy of the within order. [ 11 ] The order is signed by J.

Poitras. [ 12 ] On page 2 of the order and beneath the signature of J. Poitras appears the following: The Criminal Code, subsection 259(4) , requires that:

(4) Everyone who operates a motor vehicle, vessel or aircraft....in Canada while disqualified from doing so: (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. ISSUES [ 13 ] The Court is asked to resolve the following issues: 1. Is it incumbent upon the Crown to establish that the accused is not registered in the Alcohol Ignition Interlock Program? and 2. Has there been compliance with s. 260(1)? ANALYSIS 1. Is it incumbent upon the Crown to establish that the accused is not registered in the Alcohol Ignition Interlock Program? [ 14 ] The undisputed evidence is that on June 30, 2010, Mr.

Poitras was convicted of an offence pursuant to s. 259(4) of the Criminal Code and a mandatory driving prohibition of one year was imposed in compliance with s. 259(1) . Where such an order is made , an offender may, pursuant to s. 259(1.1), operate a motor vehicle if registered in an alcohol ignition interlock program unless the Court makes an order to the contrary. However, s. 259(1.2) imposes the following restriction: An offender who is registered in a program referred to in subsection (1.1) may not operate a motor vehicle equipped with an alcohol ignition interlock device until (

a) the expiry of a period of (

i) for a first offence, 3 months after the day on which sentence is imposed, (ii) for a second offence, 6 months after the day on which sentence is imposed, and (iii) for each subsequent offence, 12 months after the day on which sentence is imposed; or

(

b) the expiry of any period that may be fixed by order of the court that is greater than a period referred to in paragraph (a). [ 15 ] In the case at hand, Mr. Poitras was not prohibited from applying for the alcohol ignition interlock program in accordance with s. 259(1.2). Through the statutory operation of s. 259(1.2), he would not have qualified for the alcohol ignition interlock program until at least three months elapsed from the date of the order. However, he was found driving a motor vehicle 17 days after the order of prohibition was made.

No further proof is necessary to establish the driving prohibition beyond a reasonable doubt. [ 16 ] Given these facts, the Court need not make any further determination with regard to the question posed, but will comment to the following extent. The conduct prohibited by s. 259(4) is the operation of a motor vehicle while under an order of prohibition or disqualification. It is my view that the addition to the

section of the words “other than an offender who is registered in an alcohol ignition interlock device program ....and who complies with the conditions of the program” has not added to or changed the essential elements required for proof of the offence. Although the Provincial Court of Alberta in Liptak (supra) held that those words do create an additional element, that decision is not binding on this Court. After reading and considering the decision in Dumais (supra) , it is my view that the reasoning there applies equally to the case at hand.

Thus, the phrase in question creates an exception for those individuals who elect to participate in the alcohol ignition interlock program. As an exception, the burden of proving that it operates in favour of the defendant is on the defendant: see s. 794(2) of the Criminal Code . Has there been compliance with s. 260(1) of the Criminal Code ? [ 17 ] Section 260(1) of the Criminal Code says: If a court makes a prohibition order under

section 259 in relation to an offender, it shall cause (

a) the order to be read by or to the offender; (

b) a copy of the order to be given to the offender; and (

c) the offender to be informed of subsection 259(4). [ 18 ] Proof of such compliance, in the absence of any other evidence, can constitute proof of the mens rea for the offence. [ 19 ] In Crawley , the accused signed an acknowledgement that the order had been read and explained to him, that he understood it and that he had received a copy of it. Nonetheless, the Court in that instance concluded that he had not been adequately informed of s. 260(1) (

c) and found that the Crown was not entitled to rely on the presumption of regularity to establish otherwise. The facts in Crawley (supra ) are unique in that the accused was disqualified from driving as a result of a prohibition order made in Ontario in December 2007 and was found operating a motor vehicle in October 2008 in Nova Scotia.

The Court found that it could not find, on the evidence, that the accused had been advised of the Canada-wide scope of the order nor could it take judicial notice of the procedures of the Ontario Court to determine whether the accused had been so advised. [ 20 ] In Larsen , the Saskatchewan Court of Appeal considered whether a Certificate of Disqualification signed by the Registrar of Motor Vehicles for the province constituted evidence of the necessary mens rea .

The Court held that the Certificate, in combination with the legislative provisions of The Vehicle Administration Act S.S.1986, c.V-21 and the Criminal Code and the doctrine of regularity, provided proof that the accused had knowledge of the disqualification upon which the Registrar of Motor Vehicles based the Certificate. The Court went on to consider whether that knowledge constituted prima facie proof of the mens rea required before a conviction could register.

At para. 18 of Larsen, Bayda C.J.S., as he then was, said: .... proof of mens rea requires evidence that the accused knew that he was bound by an order of disqualification or prohibition and that he would breach that order if he were to drive a motor vehicle.

[ 21 ] In the case before me, the Court has the benefit not only of the Certificate of Disqualification or Prohibition (P1), but also the court record (P3) which forms the basis of that prohibition and the Certificate. These documents each provide prima facie proof that this accused knew that he was prohibited from driving and that he would violate that order if he drove a motor vehicle. [ 22 ] Unlike Crawley (supra) , there are no issues with respect to the scope of the order since Mr. Poitras was found driving in the same city in which the order had been made a mere 17 days earlier.

CONCLUSION [ 23 ] I find that the evidence does establish , beyond a reasonable doubt, all the constituent elements of both offences with which Mr. Poitras has been charged, and I find him guilty. ____________________________ M.L. Gray, J