Her Majesty the Queen - v. -, 2014 SKPC 103

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 103 Date: June 10, 2014 Information: 24542040 Location: Punnichy _____________________________________________________________________________ Between: Her Majesty the Queen - and - Elwood Charles Nanapay Appearing: Curtis Wiebe and Ryan Snyder For the Crown David Andrews, Q.C. For the Accused JUDGMENT J.A. PLEMEL , J INTRODUCTION [ 1 ] Mr. Nanapay is charged with operating a motor vehicle while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code contrary to section 259(4) of the Criminal Code .

Both counsel directed their attention and argument to whether or not the road on which he was seen driving, namely Pratt Road on Gordon’s First Nation, was one on which a licence to

drive was required. [2] I adjourned to consider the above argument and while doing so, determined that the Certificate of Disqualification orProhibition filed in this case, does not prove beyond a reasonable doubt that Mr. Nanapay is disqualified within the meaning of thesections of the Criminal Code referred to in the charge. I am therefore deciding this case on that basis and make no findings as towhether or not he required a licence to drive on Pratt Road. ANALYSIS [3] For the purpose of

section 259 of the Criminal Code, disqualification means a prohibition or disqualification for the reasonsstated in subsection 259(5). That subsection refers to Criminal Code convictions or discharges related to a person’s operation of motorvehicles, vessels, aircraft or railway equipment. It also relates to disqualifications or other legal restrictions of one’s right or privilege tooperate a motor vehicle, vessel or aircraft imposed under the laws of a province in respect of certain named Criminal Code convictions ordischarges. In other words, there must be an underlying Criminal Code conviction or discharge. [4] I am unable to conclude, by looking at the

section number of the provincial legislation referred to in the Certificate, that Mr.Nanapay’s disqualification is due to an underlying Criminal Code matter. The Certificate filed by the Crown states that by reason of aconviction on November 18, 1996, Elwood C.

Nanapay was disqualified from securing or holding a licence and from operating a motorvehicle in Saskatchewan pursuant to section 74(2.1) of The Vehicle Administration Act (V.A.A.). [5] If section 74(2.1) of that Act referred only to the required Criminal Code convictions or discharges or to disqualificationsunder the laws of a province due to those underlying Criminal Code matters, I could conclude that the Crown has proven he wasdisqualified as charged.

The problem for the Crown is that it also refers to convictions under The Highway Traffic Act (H.T.A.), aprovincial Act which, in some instances, have nothing to do with Criminal Code convictions or discharges.

It does this by referring tooffences prescribed by provincial regulation. [6] Both the V.A.A. and the H.T.A. have been repealed and replaced in Saskatchewan, but still must be considered in this case,given the reference to the V.A.A. in the Certificate filed. [7] Section 74(2.1) of the V.A.A. states that when a person is convicted of certain offences prescribed by provincial regulation heis disqualified for an indefinite period of time.

Many of the sections prescribed do in fact relate to the section 259(5) Criminal Codedriving offences, or similar offences under the National Defence Act or similar laws in the United States of America, but some do not. Forexample sections 40(8) or 89(1) of the H.T.A. are prescribed offences under the V.A.A. and include provincial or other infractions whichare not mentioned in section 259(5) of the Criminal Code.

Therefore, I am unable to determine from the Certificate filed, if Mr.Nanapay’s disqualification pursuant to section 74(2.1) is related to an underlying Criminal Code conviction or discharge. [8] An examination of section 89(1) of the H.T.A. best illustrates the point. That subsection makes it an offence to drive whileprohibited under

section 78 of the V.A.A.

Section 78 refers to suspensions for new drivers who consume any amount of alcohol (section78.2) as well as suspensions due to regulatory issues such as medical conditions, misleading statements to an administrator, safetytraining, missed interviews with an administrator, dishonoured cheques, accumulated demerit points and failing to pay automobileaccident insurance payments (sections 21, 22 and 23).

These are strictly provincial disqualifications which have nothing to do withCriminal Code convictions or discharges. [9] The Criminal Code may not attach a penal consequence to a breach of a provincial disqualification or prohibition fromdriving which does not arise out of a conviction or discharge for a criminal offence. (R. v. Boggs, (SCC), [1981] 1S.C.R. 49; 58 C.C.C. (2d) 7.) The difficulty experienced in Boggs was resolved by section 259(5), which limits the reasons for CriminalCode disqualification to offences of a criminal nature. [10] Commenting on R. v.

Boggs, supra, the Alberta Court of Appeal stated that a conviction for driving while disqualified

contrary to section 259(4) of the Criminal Code will be sustained if four criteria were met. One criteria is that “there is an underlying Criminal Code conviction that triggers the disqualification.” Another is that “the administrative action order or regulation is not in response to the non-payment of a provincial tax or made under a provincial regulatory scheme.” ( R. v. Clark , [2001] A.J. No. 1099 ; 2000 CarswellAlta 933, para. 27 .) [ 11 ] I adjourned giving my decision in this case to allow counsel time to address the issue I have raised.

In response, on the last adjourned date, the Crown applied to amend the charge to remove the reference to section 259(1) of the Criminal Code and replace it with section 259(5) . The Crown also pointed out that section 260(5) of the Criminal Code is mentioned in the Certificate. Furthermore, in the Notice of Intention to Produce the Certificate which is on the same page it is stated that “...pursuant to sections 260(5) and (6) of the Criminal Code of Canada, the prosecution intends to...(tender the Certificate).” The Crown argues that these references should satisfy me beyond a reasonable doubt that Mr.

Nanapay has an underlying Criminal Code conviction required by section 259(5) . They argue the doctrine of regularity and suggest that R. v. Miskiman of our Court of Appeal is support for their position ( 1997 CarswellSask 280 ). [ 12 ] I decline to amend the subsection number in the information at this late stage. Even if I were to amend it, however, that would not address the concerns I have raised. [ 13 ] The reference to sections 260(5) and (6) of the Criminal Code in the Certificate and Notice to Produce simply indicate the authority by which the Certificate is admissible.

The references are not found in the body of the Certificate which contains the Acting Registrar of Motor Vehicles statement. The Certificate is “evidence of the facts alleged therein” according to section 260(5) of the Criminal Code . The facts alleged by the Acting Registrar do not support a finding that Mr. Nanapay has an underlying Criminal Code conviction. The doctrine of regularity does not assist the Crown in this case. [ 14 ] There is no evidence that Mr.

Nanapay was disqualified from operation of a motor vehicle by reason of an order pursuant to either subsection 259(1) or 259(5) of the Criminal Code contrary to section 259(4) of the Criminal Code , as opposed to a regulatory offence. [ 15 ] I am aware of the decision of this Court in R. v. McNab , a case which also arose on Gordon’s First Nation ( 2007 CarswellSask 426 ; 2007 SKPC 79 ). That case involved a Certificate with almost identical wording and, as here, a reference to section 74(2.1) of the V.A.A . The accused was convicted at trial.

However, in addition to filing the Certificate, the Crown in that case filed a Driver Record of the accused from Saskatchewan Government Insurance as well as the accused’s criminal driving record showing a conviction for impaired driving under the Criminal Code . These documents showed the underlying Criminal Code conviction which led to the accused’s disqualification from driving. No similar additional information is before me in this case. CONCLUSION [ 16 ] For the reasons stated, I find Elwood Charles Nanapay not guilty of the offence charged. ________________________ J.A. Plemel, J