R. v. Harris Date:, 2015 BCPC 154

Citation: R. v. Harris Date: 20150306 2015 BCPC 0154 File No: 80417-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NEAL PATRICK HARRIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. BROWN Counsel for the Crown: D. Tsui Counsel for the Accused: J. Butler Place of Hearing: Abbotsford , B.C. Date of Hearing: March 6, 2015 Date of Judgment: March 6, 2015

[ 1 ] THE COURT : These are my reasons for judgment in the file R. v. Neal Patrick Harris , file 80417-1. INTRODUCTION : [ 2 ] Mr. Harris is charged that on February 14th, 2014, near Hatzic, B.C., he drove a motor vehicle, knowing that he was prohibited from driving, contrary to s. 95(1) of the Motor Vehicle Act (MVA). [ 3 ] The Crown alleges that Mr. Harris had been prohibited from driving on January 11th, 2014 for 90 days, pursuant to s. 215.43 of the Motor Vehicle Act, because a sample of his breath had at that time registered a fail on an approved screening device.

ISSUES : [ 4 ] The defence has raised the following interesting issues in this case: 1. The charge under s. 95(1) of the MVA requires the Crown to prove beyond a reasonable doubt that a person prohibited from driving was on a "highway or industrial road." Has the Crown proven beyond a reasonable doubt that the vehicle was in fact on an industrial road? 2. Is there a reasonable doubt as to the person who was prohibited from driving on the Notice of Driving Prohibition?

Neal Patrick Harris is the name of the person prohibited from driving in the Exhibit 4 Notice of Driving Prohibition; however, the related Certificate of Service only names a Neal Harris, without the middle name, as being served with the notice. There are also possible discrepancies in the Notice of Driving Prohibition regarding the defendant's date of birth and driver's licence number. 3. Most significantly, has the Crown proven beyond a reasonable doubt that it was the defendant who was driving a black GMC pickup truck on February 14th, 2014?

There were two individuals in the truck with similar features of identification. BACKGROUND : [ 5 ] The facts on February 14th, 2014 are relatively straightforward. RCMP Officer, Cpl. Kamiya, was on patrol in the North Mission/Hatzic area of B.C., looking out for forestry offences. He was in an unmarked police vehicle on a gravel road, which he described as Lost Lease Forest Service Road. At 12:50 p.m., he looked in his rear-view mirror and noticed a black GMC pickup truck at the ten-kilometre mark of the road. Cpl. Kamiya pulled off to the side to let the pickup truck pass.

The corporal then pulled behind the pickup to follow it. He observed two occupants in the truck and took note of the licence plate. As Cpl. Kamiya was following the pickup truck, he observed that the driver's arm outside the driver's window had a full-sleeve tattoo. [ 6 ] The pickup truck then pulled off to allow Cpl. Kamiya to pass. As Cpl. Kamiya passed the pickup truck, he looked into the truck and saw that the driver and the passenger were both Caucasian, they both had black shirts and they both wore ball caps. However, the driver had a narrower face than the passenger. The driver had a goatee. Cpl.

Kamiya made his observations in the span of three or four seconds, at most. [ 7 ] Cpl. Kamiya then proceeded down to the five-kilometre mark of the gravel road and he met Cst. Emerson at his vehicle. Cst. Emerson's police vehicle had a computer capable of conducting a licence plate query. Cpl. Kamiya learned that the black pickup truck was associated to a prohibited driver under the MVA , and the name of the prohibited driver was Neal Patrick Harris. [ 8 ] Cpl. Kamiya advised another officer, Cst. Robichaud, of the situation and requested that he look for the pickup truck, as Cst. Robichaud was in uniform.

Subsequently, Cpl. Kamiya located Cst. Robichaud at the seven-kilometre mark of the road. Cst. Robichaud was speaking with both occupants of the truck who were then outside the vehicle. Cpl. Kamiya indicated which person he had seen driving, and Cst. Robichaud advised that this person was Neal Patrick Harris. Cpl. Kamiya was certain of his identification of the driver and the passenger did not look like the driver he had earlier observed. [ 9 ] In court, Cpl. Kamiya identified Mr. Harris as the driver, notwithstanding that Mr.

Harris was sitting in the body of the courtroom and notwithstanding that the passenger in the pickup truck was also sitting in the courtroom. The two individuals had similar features, such as facial hair and sleeve tattoos. Cst. Robichaud had also taken a photograph of Mr. Harris at the scene and Cpl. Kamiya confirmed the person in the photograph was the driver. [ 10 ] In cross-examination, Cpl. Kamiya stated that Lost Lease Service Road usually has a sign marking the start of the road, but he was unsure if it was so marked on February 14th, 2014.

When the black pickup truck was first seen at the ten-kilometre mark, Cpl. Kamiya was pretty confident the road was still Lost Lease Service Road. At the seven-kilometre mark, the road was definitely Lost Lease Service Road, and this is a declared service road maintained by the Ministry of Forests. [ 11 ] Also during cross, Cpl. Kamiya agreed that the actual registered owner of the pickup truck could have been a construction company. He acknowledged that in court, both the defendant and the other occupant of the truck had sleeve tattoos on their left arms. He did not recall that Mr.

Harris had a tattoo as shown in court, which went from the knuckles to the elbow, whereas the other occupant had a tattoo only from the wrist to the elbow. Exhibits 1 and 2 depict the two different sleeve tattoos. [ 12 ] Cst. Robichaud testified as to the events of February 14th, 2014. He was in uniform, in a marked police vehicle that day, and he was on forestry roads, ensuring compliance with such matters as the discharge of firearms on Crown land. Interestingly, he referred to the road he was on as Florence Lake Forest Service Road, rather than Lost Lease Forest Service Road. [ 13 ] Cpl.

Kamiya had come down to meet Cst. Robichaud and he explained that there was a black GMC pickup truck up the road associated to a prohibited driver. Cst. Robichaud located the black pickup truck at the seven-kilometre mark. Two males were found near the pickup, one by the tailgate, holding two rifles, and one at the passenger door. The male by the tailgate had a baseball cap, black

hoodie, and he had tattoos down his arm. The other male by the passenger door was heavier, but also had a black hoodie and ball cap. [ 14 ] When Cst. Robichaud approached the male by the tailgate, he turned out to be the defendant, Mr. Harris. Mr. Harris was asked to produce his Possession Acquisition Licence, (PAL), regarding the firearms, and Mr. Harris did have an unrestricted PAL, and the picture on the PAL matched his physical appearance. [ 15 ] Cpl. Kamiya ultimately arrived at the seven-kilometre mark and he informed Cst. Robichaud that the male he saw driving the black pickup truck was Mr.

Harris, a person prohibited from driving. Cst. Robichaud made his own inquiries to ensure Mr. Harris was indeed a prohibited driver. [ 16 ] Cst. Robichaud completed an appearance notice and served Mr. Harris in the days to follow. Cst. Robichaud was unable to finish the necessary paperwork in time, so the appearance notice was cancelled and a summons was the process used. [ 17 ] Cst. Robichaud confirmed in his testimony that Mr. Harris was the shorter male in a black hoodie, with a baseball cap and a sleeve tattoo and goatee. The other male at the passenger door of the pickup truck was bigger than Mr. Harris.

Cst. Robichaud also took a photograph of Mr. Harris. [ 18 ] A Notice of Driving Prohibition and Certificate of Service was entered as Exhibit 4 at trial pursuant to s. 82(4) of the MVA. The Notice of Driving Prohibition is directed to a Neal Patrick Harris, but the Certificate of Service indicates that a Neal Harris, without a middle name, was served on January 11th, 2014. The date of birth on the notice appears to be July 23rd, 1984, although the month shown as "07" could be a badly-written or badly-copied "02." [ 19 ] The Certificate of Superintendent was marked Exhibit 5 pursuant to s. 95(3) of the MVA.

That certificate indicates that Mr. Harris was prohibited from driving a motor vehicle on February 14th, 2014 under s. 214.43 of the MVA. This certificate refers to Mr. Harris' date of birth as February 23rd, 1984. [ 20 ] In cross-examination, Cst. Robichaud admitted he took no notes at all of the events on February 14th, 2014. He conceded he did not write up a report until March 13th, 2014 because he was busy with several other projects. His report borrowed heavily from Cpl. Kamiya's report. Cst.

Robichaud believed that the defendant's date of birth on the file would have matched information he had about the defendant on PRIME. The officer's practice would have been to take the PAL and compare it to the defendant, and to the information he had on PRIME. Cst. Robichaud saw the defendant with a tattoo on his hand in court and he could not recall if that tattoo was present in February of 2014. [ 21 ] On behalf of the defence, Mr. Harris' father testified that his son, the defendant, had a tattoo on his left hand in late 2012 or early 2013, well before the date of this alleged offence on February 14th, 2014.

Issue number 1: Was the pickup truck on an industrial road? [ 22 ] Under s. 95(1) of the MVA , the Crown must prove beyond a reasonable doubt that the person prohibited from driving was driving on a "highway or industrial road." Under s. 1 of the MVA , an "industrial road" includes a forest service road as defined in the Forest Act. Cpl. Kamiya testified that the offence occurred at about the ten-kilometre mark on Lost Lease Service Road; however, Cst.

Robichaud identified the road as Florence Lake Service Road at the seven-kilometre mark. [ 23 ] In my view, the Crown has proven beyond a reasonable doubt the vehicle associated to Mr. Harris was on a forest service road. One of the officers may have been mistaken as to the name of the forest service road, but I am satisfied beyond a reasonable doubt that the road was a forest service road. Evidence was given that there were a network of forest service roads in the area and Cpl. Kamiya testified this road was maintained by the Ministry of Forests.

A mistake in the name of the forest service road does not mean that the road becomes something other than a forest service road. Issue number 2: The person prohibited from driving in the Notice of Driving Prohibition . [ 24 ] There are a number of discrepancies between the Notice of Driving Prohibition, the related Certificate of Service and the Certificate of the Superintendent. A number of cases have held there ought to be strict compliance with the statutory requirements in driving-while-prohibited offences. (See R. v. Farhadi

(2001) BCJ 2465 , in Provincial Court.) As well, when considering the documentation required to prove the offence, the degree of care in preparing such documents is equivalent to the preparation of quasi- judicial documents. (See R. v. Zwicker

(1979) CanRep NS 20, and R. v. Bermann

(2002) BCJ 2892 , Provincial Court.) However, a number of cases assert that it is acceptable to resolve any apparent inconsistencies on the face of a certificate by reference to other admissible documents in evidence. (See R. v. Hilborn

(1993) BCJ 2997 , Supreme Court, and N.R. v. Tournier

(1995) BCJ 1470 , Supreme Court.) Typographical errors may not necessarily provide a reasonable basis to doubt the reliability of certificates, and in that regard, see R. v. Alexis

(1999) BCJ 2666 BCCA. If an error does not mislead or prejudice a defendant, the certificate should be admitted. [ 25 ] In the case at bar, the omission of the middle name in the Certificate of Service for the Notice of Driving Prohibition is not a serious error, making the document unreliable. The police officer completed the Notice of Driving Prohibition which prohibited Mr. Harris from driving on January 11th, 2014. The officer's Certificate of Service is completed on the same date, but it omits a middle name. I do not see how Mr. Harris is misled or prejudiced by this admission.

Yes, there are other persons named Neal Patrick Harris in existence, including one who hosted the Oscars, but the police officer was dealing with this particular defendant throughout the completion of both the Notice of Driving Prohibition and the Certificate of Service. I note that the name "Neal," N-e-a-l, was spelled the same way in both parts. [ 26 ] Sections 215.41(3.1) (

d) and 215.43 stipulate that it is the service of the prohibition which commences the prohibition, and I am satisfied beyond a reasonable doubt that the Notice of Driving Prohibition applied to this defendant, Mr. Harris, and he was the one served the same day.

[ 27 ] The Notice of Driving Prohibition does appear to show a birthdate for Neal Patrick Harris of "1984/07/23," but this "7" could be a badly-written or badly-photocopied “2”. Cst. Robichard referred to the date of birth as July 23rd, 1984, but he was really just following the lead of defence counsel in a skilful cross-examination. The fact is that the Notice of Driving Prohibition shows the correct year and date of birth for the defendant, but possibly the wrong month. [ 28 ] A further fact is that on February 14th, 2014, Cst.

Robichaud matched the person in front of him with his PAL and he ran the defendant's particulars on PRIME in the Motor Vehicle database. He came to the conclusion that the Mr. Harris on the forest road was the Neal Patrick Harris prohibited from driving. [ 29 ] I also do not see any discrepancy in the driver's licence number. Taking into account all the evidence and documentation, I am not left with a reasonable doubt that it was the defendant, Neal Patrick Harris, who was prohibited from driving on February 14th, 2014.

Issue number 3: The identity of the driver of the pickup truck. [ 30 ] The biggest issue in this case is whether or not the Crown has proven beyond a reasonable doubt that it was the defendant driving the black GMC pickup truck on February 14th, 2014. [ 31 ] Cpl. Kamiya only had a few seconds to observe the driver. When he was behind the truck, he simply sees two occupants in the truck and the driver had a sleeve tattoo. However, when Cpl. Kamiya passes the truck, he sees through the passenger window of his vehicle, and through the driver window of the pickup, the face of the defendant.

He sees the defendant's face for only a few seconds, but both men looked at each other. He noted that the defendant had a thinner face than the passenger. It is true that both the driver and the passenger were Caucasian and they both had similar hats, shirts and facial hair. They both had sleeve tattoos, but Cpl. Kamiya did not observe that the defendant's tattoo actually extended down his hand. Nevertheless, Cpl. Kamiya was convinced the defendant was the driver because of his thinner face. He pointed to the defendant as being the driver in front of Cst. Robichaud. Cpl.

Kamiya also had no trouble identifying the defendant in the body of the courtroom, notwithstanding that the other occupant was also present in the body of the courtroom, and similarly dressed. [ 32 ] In the end, I am satisfied beyond a reasonable doubt that Cpl. Kamiya properly identified the defendant as the driver on February 14th, 2014. CONCLUSION : [ 33 ] The Crown has proven beyond a reasonable doubt that Mr. Harris was driving on February 14th, 2014 on an industrial road, and Mr. Harris was prohibited from driving on that day. [ 34 ] So Mr.

Harris, I find you guilty of Count 1, driving while prohibited. (REASONS FOR JUDGMENT CONCLUDED)