R. v. Webster Date:, 2016 BCPC 326

Citation: R. v. Webster Date: 20160913 2016 BCPC 326 File No: 79706-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN DAVID WEBSTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: C. Hagen Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Date of Hearing: November 24, 2015; May 16 and September 13, 2016 Date of Judgment: September 13, 2016

INTRODUCTION [1] THE COURT: Sean David Webster has been charged on Information 79706-1 that on or about the 25th of February 2015 thathe did drive a motor vehicle on a highway or industrial road knowing that he was prohibited from driving a motor vehicle. That offenceis contrary to s. 251(4) of the Motor Vehicle Act and contrary to s. 95(1) of the Motor Vehicle Act. [2] Sean David Webster, hereinafter referred to as the “Defendant”, has admitted that he was driving on the offence date ofFebruary 25th, 2015, but denies that he knew that he was prohibited from driving a motor vehicle.

PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT [3] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen, can the court convict the accused person. Where a reasonable doubt exists on any element of the offence charged, the accusedmust be acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [4] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. [5] The Crown must prove more than probable guilt. However, reasonable doubt does not involve a proof to an absolute standardsince that would be an impossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proofon a balance of probabilities. (See R. v. Lifchus, 1997 Can LII 319 (S.C.C.), 1997 3 S.C.R. 320 and see R. v. Starr, [2000] S.C.C. 40(Can LII, 2002 S.C.R. 144)).

THE W.(D.) FORMULATION [6] I must instruct myself that in the trial of criminal matters and matters in the nature of that presently before me that areprosecuted under the Motor Vehicle Act, it is not a question of which witness's evidence or version of the events I believe, but ratherwhether on the totality of the evidence, Crown has proven each essential element of each offence beyond a reasonable doubt. Wherethere is evidence of the accused that raises a defence, as is the case in this matter, I must further instruct myself and I must apply to thisevidence the well-known process of analysis set out in R. v.

W.(D.), 1991 Can LII 933 S.C.C., 1991, 1 S.C.R. 742 found at paragraph 28. First, if I believe the evidence of the accused, obviously I must acquit. Second, if I do not believe the testimony of the accused, but I amleft in a reasonable doubt by it, I must acquit. Third, even if I am not left in doubt on the evidence of the accused, I must ask myselfwhether on the basis of the evidence which I do accept I am convinced beyond a reasonable doubt by that evidence of the guilt of theaccused. [7] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H, 2012 PECA 6, [2012]PEIJ No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of anaccused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt and if not, then going on to step three and determining whether the evidence taken as awhole raises a reasonable doubt. [R. v. Ellis 2006 PESCAD 25, at para.18].

Proper application of the third step involves moving thefocus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) on thecriteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F. 2007 PESCAD 17 , 2007PESCAD 17, at paras. 28-31) TheSupreme Court of Canada recently stated in R. v.

J.H.S. 2008 SCC 30 [Can LII], at para. 8, that a series of decisions has affirmed andreaffirmed that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment ofcredibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y. 2008SCC 2 at para.7) [8] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., 1991 B.C.J. No. 2735 adds a fourthstep to the W.(D.) analysis; namely, if after consideration of all the evidence, the court is unable to decide whom to believe with respectto the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood, JA, (as he then was) suggests that logically thisought to be the second in order in the W.(D.) analysis. [9] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused does notequate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , 2008 2 SCR 152). [10] In this matter, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence and so weighing the evidence, I mayreject or accept some or all of the witnesses' testimony after having taken into account a multitude of factors which include, but are notlimited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility and the internal orexternal consistency.

I must also direct myself that even honest witnesses may be mistaken in their evidence or have errors ofrecollection or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

[ 11 ] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. ( See R. v. Jackson , 2007 BCSC 636 ; see also R. v. Mann , [2010] A.J. No. 1094 ). ASSESSING CREDIBILITY AND RELIABILITY OF WITNESSES [ 12 ] Here I have heard evidence that is conflicting on material matters regarding the alleged offence, and I must assess the credibility and reliability of those witnesses who have provided this conflicting evidence. [ 13 ] In doing so, the testimony of each of the witnesses can be considered from three perspectives: (

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity, whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions; and (

c) the accuracy of their observations, their abilities to observe, remember and communicate accurately. [ 14 ] In a recent case of R. v.

Cuhna , 2015 BCPC 60 at paragraphs five and six, the Honourable Judge Merrick provides a useful review of the factors to be considered when assessing the testimony of a witness from these three perspectives: TRUTHFULNESS Relevant factors for truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful; inconsistences in testimony during direct examination and cross-examination; reliable evidence that conflicts with the testimony of the witness, and the attitude and the demeanour of the witness.

However, when considering demeanour, it is important to consider all possible explanations for the witness's attitude and to be sensitive to individual and cultural factors which may affect demeanour. OBJECTIVITY When assessing witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness's expectations, the assumptions of unproven facts or by subsequent events. ACCURACY Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period of observation and the circumstances of the witness's observations.

The reasons for recalling an event and the length of time between witnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and, hence, his reliability. Some witnesses may have difficulty communicating their evidence clearly due to factors such as nervousness. THE APPLICABLE LAW Applicable provisions of the Motor Vehicle Act , R.S.B.C 1996,

Chapter 318 [ 15 ] The following provisions of the Motor Vehicle Act are relevant to the present charges: Impoundment of Motor Vehicle 251(1) If a peace officer has reasonable grounds to believe that a person (

a) has driven or operated a motor vehicle on a highway while the person is prohibited from driving a motor vehicle under (

i) this Act , or (ii) the Youth Justice Act , the Youth Criminal Justice Act (Canada) or the Criminal Code , (

b) has driven or operated a motor vehicle on a highway while the person's driver's licence and his or her right to apply for or obtain a driver's licence are suspended under section 89(1)(

b) or (c), 232 or 233, (

c) has driven or operated a motor vehicle on a highway while (

i) the person did not hold a subsisting driver's licence issued under this Act and was not exempt under

section 34 from holding a driver's licence issued under this Act , and (ii) a notice under

section 252 was in place on the driving record of the person, (

d) has committed an offence under

section 148, (

e) has driven or operated a motor vehicle on a highway in a race or in a stunt and the peace officer intends to charge the person with a motor vehicle related Criminal Code offence or an offence under section 144(1), 146 or 148 of this Act , or (

f) has committed an offence under

(i) section 194(1) or (2), or (ii) section 25(15) by violating a requirement, restriction or condition prescribed under

section 25 in relation to a driver's licence that allows the person to drive or operate a motorcycle, which requirement, restriction or condition is specified in the regulations for the purposes of this provision, the peace officer or another peace officer must (

g) cause the motor vehicle to be taken to and impounded at a place directed by the peace officer, and (

h) at paragraph (

c) of this subsection applies served on the person and notice of driving prohibition in the form established by the Superintendent.

(2) The notice of driving prohibition referred to in subsection (1)(

h) must contain…the following: (

a) a statement of the right to have the driving prohibition reviewed by the superintendent under

section 259; (

b) instructions describing how to apply for that review; (

c) a statement that unless the person applies for a review under

section 259 and the review results in the revocation of a prohibition under

section 261, the person is prohibited from driving until he or she is issued a driver's licence under this Act .

(3) A peace officer who serves a notice of driving prohibition under subsection (1)(

h) must promptly forward to the superintendent (

a) a copy of the notice of driving prohibition, and (

b) a certificate of service, in the form established by the superintendent, showing that the notice of driving prohibition was personally served on the person subject to the prohibition.

(4) If a person is served with a notice of driving prohibition under subsection (1)(h), the person is prohibited from driving a motor vehicle until the person is issued a driver's licence under this Act or the notice of driving prohibition is revoked under

section 261. ...

(9) If the Insurance Corporation of British Columbia issues a driver's licence under this Act to the person who was driving or operating a motor vehicle at the time the motor vehicle was impounded in accordance with subsection (1)(c), the superintendent must, if the fees, costs, charges, surcharges and the deposit, if applicable, referred to in section 251(2) have been paid to the person who has custody of the motor vehicle, order that the motor vehicle be released to the owner or a person authorized by the owner. Driving while prohibited 95(1): A person who drives a motor vehicle on a highway or industrial road knowing that (

a) he or she is prohibited from driving a motor vehicle under

section 91, 92, 93, 94.2, 215, 215.43 or 251(4)… commits an offence and is liable, (

c) on a first conviction, to a fine of not less than $500 and not more than $2,000 or to imprisonment for not more than 6 months, or to both, and (

d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $500 and not more than $2,000 and to imprisonment for not less than 14 days and not more than one year.

(2) If a person is charged with an offence under subsection (1) that pertains to a prohibition under

section 91 or 215, the court hearing the charge may admit into evidence (

a) a certificate of the Insurance Corporation of British Columbia, or (

b) a certificate of the superintendent dated before the date this paragraph comes into force stating the information required by subsection (4) and if the certificate is admitted into evidence it is proof that the defendant had knowledge of the prohibition in effect at the time of the alleged offence.

(3) If a person is charged with an offence under subsection (1) that pertains to a prohibition under

section 92, 93, 94.2, 215.43 or 251(4) , the court hearing the charge may admit into evidence a certificate of the superintendent stating the information required by subsection (4), and if the certificate of the superintendent is admitted into evidence, it is proof that the defendant had knowledge of the prohibition in effect at the time of the alleged offence.

(4) If a person is charged with an offence under subsection (1), the certificate referred to in subsection (2) or (3), as the case may be, must state that the prohibition was in effect on the date of the alleged offence and that the records of the Insurance Corporation of British Columbia or the superintendent, as the case may be, (

a) show that a notice of the prohibition was mailed by registered mail or certified mail to the person at the person's most recent address recorded in the records of the corporation and that the corporation or superintendent subsequently received a copy of a confirmation of delivery provided by Canada Post showing a recipient's signature that, from a comparison with the signature on the records of the corporation, appears to be that of the person to whom the notice of prohibition was sent, (

b) contain a document that

(

i) indicates that the person so charged (

A) has acknowledged that he or she is prohibited from driving a motor vehicle, (

B) has acknowledged that he or she has received from the corporation or the superintendent a notice of prohibition against driving a motor vehicle, or (

C) has surrendered his or her driver's licence to the corporation or the superintendent subsequent to receiving from the corporation or the superintendent a notice of prohibition, relating to a prohibition under

section 91, 92 or 93, or a notice of suspension, and (ii) is signed with a signature that, from a comparison with the signature on the records of the corporation, appears to be that of the person whom the corporation or superintendent intended to prohibit from driving a motor vehicle, or to whom the corporation or superintendent mailed a notice of prohibition, or (

c) contains a certificate of service established under

section 94.3(c), 215.47(

c) or 251(3)(

b) showing that a notice of driving prohibition under

section 94.1, 215.41 or 251 (1)(h), as applicable, was personally served on the person subject to the prohibition.

(5) This

section applies to any document contained in the records of the Insurance Corporation of British Columbia or the superintendent, whether that document was signed before, on or after the date this subsection comes into force. THE EVIDENCE The Crown's case The Evidence of Police Constable Miles of the RCMP [ 16 ] As a result of the evidence of the Defendant, Police Constable Miles was called by Crown to provide rebuttal evidence.

He is a veteran police officer with 13 years of service. [ 17 ] On April 19, 2013, at approximately 11:30 p.m., Police Constable Miles, and Police Constable Lefurgey were patrolling in an unmarked police car in Cedar, British Columbia. They conducted a traffic stop of a 1990 Acura Integrity vehicle on Woobank Road because of concerns about the sobriety of the driver arising from the hesitant actions of the driver at a stop sign.

No issue is taken by the Defendant about the right of Police Constable Miles to stop the vehicle. [ 18 ] The Acura was being driven by a male with a female passenger in the front passenger seat. The male driver identified himself as Sean Webster. The driver could not produce a photo B.C. driver's licence. [ 19 ] Police Constable Miles requested that the driver provide his date of birth and the matching "keyword" for his driver's licence. Police Constable Miles does not recall what the keyword that was provided to him, but he recalls that it matched what he observed on the computer screen in his patrol car.

His practice is not to write down the keyword; the keyword is intended to be kept secret. [ 20 ] It did not appear in any of the exhibits before the court that were obtained from public records. A record of the keyword that was contained in the RCMP database information reviewed by PC Miles and that was attached to the documentation forming part of the synopsis of the occurrence report that was entered as Exhibit 4. Police Constable Miles said that often people use a keyword that is their mother's maiden name. So far as I understand, that is not a requirement but it is a common practice.

The keyword for the driver in this case was shown in the database available to Police Constable Miles to be "D____" [ omitted for publication]. [ 21 ] Police Constable Miles adamantly denied the suggestion put to him in cross-examination to the effect that he failed to ask the driver for his keyword, saying that it was not possible. [ 22 ] Police Constable Miles queried the name and date of birth of the driver on CPIC and was able to access the driver's licence with a matching name and date of birth and a physical description that was "within reason, very close" to the driver.

He could not recall what that description was. [ 23 ] Descriptors were contained in the synopsis of the incident report admitted into evidence as Exhibit 4, and they match the descriptors contained in Exhibit 3, being the certified extract of the driving record of Sean David Webster. The descriptors contained in Exhibit 4 were those available to PC Miles and were viewed by him at the time of the roadside stop on April 19th, 2013, just prior to midnight. [ 24 ] PC Miles obtained the driver's licence number from those records.

He was unable to access a photo of Sean Webster at the time of the stop. [ 25 ] PC Miles had never dealt with Sean Webster before. On this occasion, he dealt with the driver for a period of some 45 minutes to an hour. In cross-examination, he stated that prior to the stop on April 19th, 2013, he had seen photographs of a person labelled as Sean Webster in the police detachment offices and had briefings on unrelated matters. He was not presented with a photo pack line-up of Mr.

Webster. [ 26 ] Initially, PC Miles testified that he wrote up the driver, who identified himself as Sean Webster, a violation ticket for driving without a valid driver's licence. In cross-examination, he later corrected himself and indicated that it was likely Police Constable Lefurgey who wrote the ticket.

Subsequently, after reviewing Exhibit 3, being the certified extract of British Columbia driver record for the Defendant, he admitted that he was erroneous about that recollection and confirmed that his recall on that issue was not perfect. [ 27 ] Exhibit 3, being the certified extract of the driving record of Sean Webster, was reviewed by Police Constable Miles in cross- examination. Police Constable Miles was unable to locate the violation ticket on the certified extract that he thought had been issued to Sean Webster by PC Lefurgey on April 19th, 2013, for driving without a valid driver's licence.

[ 28 ] On redirect, he was asked and speculated that the violation ticket that he thought was issued could have gone missing after being presented to the RCMP clerk and suggested that there were other possible explanations as to what happened to that violation ticket. [ 29 ] The Sean Webster named on the CPIC record observed by Constable Miles at the time of the stop on April 19th, 2013, was flagged as an "un-licenced driver" to whom a driving prohibition notice was to be served. [ 30 ] Therefore, PC Miles prepared a prohibition notice pursuant to s. 251(1) of the Motor Vehicle Act . [ 31 ] That “Notice of Driving Prohibition pursuant to s. 251(1) of the Motor Vehicle Act and the Certificate of Service pursuant to s. 251(3) of the Motor Vehicle Act were completed by Police Constable Miles all at the same time and immediately thereafter served on the driver who had identified himself as Sean Webster.

The Notice of Driving Prohibition and the Certificate of Service were entered as Exhibit 2. [ 32 ] Police Constable Miles identified the Defendant in court as the Sean Webster whom he stopped and served the Exhibit 2 Notice of Driving Prohibition upon. [ 33 ] There is no place on the Notice of Driving Prohibition for the driver to sign.

The only signatures that appear on the Exhibit 2 documents are those of Police Constable Miles. [ 34 ] Police Constable Miles testified that it is his practice in these situations to go over the Notice of Driving Prohibition with the recipient and explain to them the prohibition and that they are immediately prohibited from driving and the right to review provisions. He testified that he recalls following that procedure with the person he identified as Sean Webster. He testified that no issue was taken by the driver with the details of the address, spelling of names or the driver's licence number.

His practice is to make notes of any necessary changes and to have any changes initialed on the document by the recipient. [ 35 ] Police Constable Miles also completed the necessary documentation to have the vehicle impounded and towed.

According to his query of the licence plate, the registered owner of the vehicle was a David Webster. [ 36 ] In cross-examination, Police Constable Miles confirmed that he did not have any handwritten notes from that event, but testified that he had immediately prepared what was described as an "occurrence report" and later as a “synopsis” which I understand to be a shorter version of a fuller occurrence report. Any notes he and Police Constable Lefurgey may have made were made on the police copy of the violation ticket which is no longer available.

On cross-examination, he confirmed his understanding that the RCMP paper file had been purged and the electronic file remained available on the RCMP PRIME database. Therefore, he could not refresh his memory from the notes that were completed at the time of the April 19th, 2013, stop.

Hence, reliance in preparing for his evidence was placed on the occurrence report and what is also referred to as a synopsis which is the basic requirement for an electronic file whether or not an occurrence report is required and prepared. [ 37 ] On cross-examination, Police Constable Miles confirmed that when he completed the Notice of Driving Prohibition, he likely obtained certain information from CPIC rather than from the driver himself, but could not recall precisely what information that may have been but did say that his general practice is to obtain information directly from the individual and record it verbatim.

Thus he infers from his review of the synopsis that it is possible that the Turner Road address he used on the Notice of Driving Prohibition was received from the driver because it is different than the police computer records he consulted at the time of the police stop. [ 38 ] The suggestions put to Police Constable Miles in his cross-examination were that this was an "unremarkable roadside stop" occurring some three years and one month previous and hence he could not recall the event.

In response, PC Miles indicated that stopping of the vehicle was unremarkable, but his dealings with a prohibited driver were remarkable insofar as it is not something with which he routinely deals. He admits that he cannot recall every specific detail of what occurred during this incident, but he remembers this incident with the Defendant, Mr. Webster. [ 39 ] In accordance with the agreed admissions of fact, it is admitted that on February 15, 2015, the Defendant was driving a motor vehicle on a highway or industrial road in Nanaimo, British Columbia, when he was stopped by PC Amirault, and PC Blanchette.

There is no issue as to the identity of the Defendant, Sean Webster, at that February 15, 2015 motor vehicle stop. [ 40 ] PC Amirault testified that while on duty on February 25th, 2015, at approximately 2:45 p.m., he had observed an older pickup truck on Mostar Road, Nanaimo, British Columbia, which was known to be associated with the Defendant who was known to be a prohibited driver. PC Amirault had observed a young person driving the vehicle and therefore conducted a licence plate check to confirm that information.

Thereafter he requested a fellow member, PC Blanchette, to make a traffic stop of that vehicle to determine the identity of the young driver. PC Blanchette did so. [ 41 ] PC Amirault then arrived on the scene and took charge of the investigation. A conversation then took place between PC Amirault and the Defendant which is admitted by defence to be voluntary in nature. [ 42 ] In that conversation, the Defendant said that he did have a valid driver's licence and that this was “all a misunderstanding”. He further stated that he was on his way to ICBC to clear up some fines that he owed.

He held up a white envelope which appeared to PC Amirault to be an indication that it contained the necessary money to pay those fines. [ 43 ] The Defendant also said, "He had sorted it with ICBC" and he would pay off his fines so that the "prohibition charge would not count." He further asked PC Amirault "how long it would take to get the driving prohibition on the system." [ 44 ] PC Amirault said that from his recollection the Defendant seemed surprised to learn that he was under a driving prohibition. [ 45 ] In furtherance of the investigation, PC Amirault spoke by telephone after the fact to the registered owner of the vehicle that had been driven by the Defendant.

That individual was David Webster, father of the Defendant. David Webster expressed an opinion that his son had a valid driver's licence and was not a prohibited driver. David Webster indicated to PC Amirault that he, David Webster, was

a former member of the RCMP. [ 46 ] As a result of that conversation, PC Amirault spoke to ICBC who confirmed that the Defendant was a prohibited driver on that date. A certified extract of the Defendant's driving record dated February 27th, 2015, was obtained, as was an s. 95(4) Certificate from the Superintendent of Motor Vehicles dated February 27, 2015. That Certificate confirmed that the Defendant was prohibited from driving on February 25th, 2015.

Those documents were admitted into evidence as exhibits. [ 47 ] As previously noted the Notice of Driving Prohibition served on April 20th, 2013, and the Certificate of Service, indicated service on Sean David Webster on April 20th, 2013 were also entered as an exhibit. THE DEFENCE CASE [ 48 ] Sean David Webster testified on his own behalf and was subject to cross-examination. [ 49 ] He confirmed that he was driving his father's vehicle on February 25th, 2015.

He said he "believed he had a driver's licence on that date," but stated he did not have physical possession of a driver's licence on that date. [ 50 ] The Defendant confirmed the correctness of the evidence of PC Amirault regarding the statements that he had made to PC Amirault and confirmed that in the white envelope he had $9,000 in cash to pay for fines and that was what he was planning on doing. He did not get there because he was stopped by the police. [ 51 ] He denied that he had ever seen the Certified Extract of his driver's licence prior to being shown it by his legal counsel.

He stated that the details of his licence were correct and he does not dispute the description of the violations, the dates of disposition, the locations of the violations and the fines and demerit points assessed as set out therein as being correct. By my count, there are 34 violation convictions shown on the Certified Extract between July 23rd, 1990 to October 30th, 2013. [ 52 ] Those include his last offence shown to be on July 21st, 2013, dealt with on October 30th, 2013.

The Defendant testified that at that time, he had pled guilty to an offence of driving while prohibited or suspended pursuant to s. 95(1) of the Motor Vehicle Act for which he was fined $690.

He also agreed that the court imposed a one-year driving prohibition under s. 98 of the Motor Vehicle Act that expired on October 30th, 2014, and that a 12-month automatic prohibition under s. 99 of the Motor Vehicle Act covering the same period from October 30th, 2013, to October 30th, 2014, was imposed upon him. [ 53 ] He then went on to testify that he did not know what the entry shown under the heading "Prohibitions or Suspensions" which read: "From 20 April, 2013, to (blank) Cause unl/indef prohibition s. 251(4) MVA ." [ 54 ] However, in cross-examination when asked about why he was in court on October 30th, 2013, he said he did not know.

Then he suggested that he was in court and got the October 30th, 2013, one-year driving prohibition because his licence had expired and he was driving without a licence. He did not know he was prohibited from driving, but pled guilty to driving while prohibited because "that's the way these things went." He further said that nobody had explained to him that he had been prohibited from driving indefinitely.

He said that he did not consult anybody about pleading guilty. [ 55 ] The Defendant in examination-in-chief was then presented with a copy of Exhibit 2, being a Notice of Driving Prohibition under s. 251(1) of the Motor Vehicle Act which he denied ever seeing prior to being presented with it by his legal counsel. He stated that his signature did not appear on the document. In cross-examination he denied being served with it. He admitted that his full name is Sean David Webster as shown on Exhibit 2 and his correct birthdate appeared.

With respect to the Turner Road address that appeared in Exhibit 2, he stated that he had at one time lived at that address, but could not recall whether he lived there in April of 2013. He confirmed that his driver's licence number and the class of his licence were correct in Exhibit 2. [ 56 ] He also denied that he knew where Woobank Road in Nanaimo Regional District was, but he knew where Cedar, British Columbia, was. He said that he did not recall whether or not he was operating a motor vehicle on April 19, 2013. [ 57 ] He then denied that he knew he was prohibited from driving on February 25th, 2015.

He said that he knew that the one-year prohibition imposed on October 30th, 2014, had expired. [ 58 ] Further in cross-examination, he denied ever giving his driver's licence document to anyone else and that the actual licence document was in the possession of the RCMP in Ucluelet, which he said had been seized in a previous case and never returned to him. [ 59 ] He agreed that when he was driving on February 25th, 2015, to go to get his licence, he agreed that he knew that he was "not to be driving yet" and he drove the car in order to go where required to pay his fines.

He said he "felt" he was not prohibited from driving. [ 60 ] He indicated on cross-examination that the number of his violation convictions made it difficult to remember the events.

When he was asked whether he remembered being stopped and being prohibited from driving, he said he would recall such an event because it is a "serious matter." [ 61 ] He admitted in cross-examination to having a total of $6,700 in fines which he had accumulated and stated that he was not told by anyone to drive down to pay them, which of course is exactly what he did. [ 62 ] Following the rebuttal evidence of PC Miles, the defendant provided further evidence and said that his driver's licence keyword was not his mother's maiden name of “D____” [omitted for publication] and never had been.

He said in fact it was “T_____” [omitted for publication]. THE APPLICABLE LAW [ 63 ] Crown and defence agree that it is an element of the offence under s. 95(1) that a person must know that they are prohibited

from driving. [ 64 ] In the absence of evidence to the contrary, the knowledge of the accused about being prohibited from driving is imputed when the notice of prohibition and the certificate of the Superintendent is entered at trial as an exhibit. However, that is in the absence of any evidence to the contrary which, if believed, rebuts the presumption of the accused's knowledge and thus leads to a reasonable doubt.

So long as the court is not left in doubt by that evidence or any other evidence, then Crown has satisfied its burden. [ 65 ] Evidence that is disbelieved by the court is not evidence to the contrary.

CROWN'S POSITION [ 66 ] Crown says that this case turns on credibility and whether the evidence of the Defendant should be accepted that he did not know that he was prohibited from driving. [ 67 ] Crown says that the Crown has satisfied its burden on the evidence of the two police witnesses who testified. [ 68 ] On the other hand, in all the circumstances, Crown says that the evidence of the Defendant is not believable and he is not a credible or a reliable witness.

Hence, I should disbelieve his evidence and, therefore, there is no evidence to the contrary concerning the Defendant's knowledge that he was a prohibited driver. DEFENCE'S POSITION [ 69 ] Defence says that the evidence of the Defendant should be accepted and is sufficient to rebut the presumption of knowledge of the driving prohibition. [ 70 ] On the other hand, Police Constable Miles is characterized as "simply a witness" with gaps in his memory unaided by any available notes. Hence, I am being asked to put little weight on the evidence of PC Miles and to acquit the Defendant.

ANALYSIS Credibility [ 71 ] I have assessed the evidence of the witnesses using the W.(D.) formulation, utilizing and reviewing the factors set out in R. v. Cuhna . I find the evidence of both Police Constable Miles and Police Constable Amirault to be credible, trustworthy, and reliable. Both sets of evidence were given in a straightforward manner which was consistent both internally and externally. The evidence of each of these police officers made sense. [ 72 ] PC Miles was both self-correcting and where he felt he was mistaken, he was open to admitting those inaccuracies.

He was skillfully cross-examined and was unshaken on the key elements of his evidence. [ 73 ] The Defendant's evidence on the other hand on the key point of his knowledge about his driving prohibition was not consistent. He was uncertain or he presented it as being confused or was misleading on key points.

Evidence on such things as his keyword in my view was at best self-serving and unbelievable. [ 74 ] His testimony about his October 30th, 2013, court appearances presents an excellent example of this when he pleaded guilty to driving while prohibited or suspended. [ 75 ] At that time, the only possible driving prohibition was the one flowing from the Notice of Prohibition served on him by Police Constable Miles, being Exhibit 2.

The Certified Extract of his driving licence shows only one other prohibition, being a July 19, 2010 prohibition when he was subject to a 24-hour prohibition under s. 215 of the Motor Vehicle Act . [ 76 ] If I were to accept the Defendant's version of what occurred on April 19 th and April 20th, 2013, to the effect that he was never served a Notice of Driving Prohibition, it would require me to accept a convergence of several unlikely coincidences. [ 77 ] Those would include that on April 19th and April 20th, 2013, Police Constable Miles was dealing with an individual who resembled the Defendant, who was driving the Defendant's father's vehicle, and who was able to provide the Defendant's name and date of birth and his matching confidential keyword for his driver's licence.

The Defendant's evidence that he was not served with the Notice of Driving Prohibition simply does not make sense. I accept that the individual who Police Constable Miles was dealing with on that occasion was in fact the Defendant, Sean David Webster.

DECISION [ 78 ] On all of the evidence before me, I accept that Crown has met its burden of proof, that there is no evidence that I believe that rebuts the presumption of the knowledge of the Defendant, Sean Webster, that at the time in question on February 25th, 2015, that he knew he was prohibited from driving a motor vehicle in the Province of British Columbia pursuant to the relevant provisions of the Motor Vehicle Act of British Columbia. [ 79 ] Accordingly, I convict Sean David Webster on Count 1 of the Information 79706-1; that is, that on the 25th of February 2015 that he did drive a motor vehicle on a highway or industrial road knowing he was prohibited from driving a motor vehicle. ________________________________

The Honourable Judge J.P. MacCarthy