R. v. Billard Date:, 2017 BCPC 256

Citation: R. v. Billard Date: 20170313 2017 BCPC 256 File No: 81040-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHEAL ROY BILLARD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.E. SAUNDERS Counsel for the Crown: S. Dehghan Counsel for the Defendant: J. Watt Place of Hearing: Nanaimo , B.C. Date of Hearing: February 27, 2017 Date of Judgment: March 13, 2017

[ 1 ] On information 81040 Michael Roy Billard is charged that on December 13, 2015 in Errington, B.C., operated a motor vehicle while disqualified by reason of an order pursuant to section 259(4) of the Criminal Code prohibiting him from operating a motor vehicle. [ 2 ] The issue is whether Mr. Billard had knowledge of the prohibition at the time of the offence. [ 3 ] Crown called two witnesses, Constables Jones and Robin Potts. [ 4 ] Constable Jones was the arresting officer.

He described how he was in a marked police vehicle on Errington Road at 8:25 p.m. on Dec 13, 2015 and saw a Ford Explorer idling in a driveway. He queried the licence plate which is his usual practice. The registered owner was Michael Billard and when he ran a check on CPIC which is available to law enforcement only he noted he was prohibited from driving Canada wide but that he had a valid BC licence and valid vehicle registration and insurance. He followed the vehicle when it drove off to the Alberni highway and stopped the vehicle soon after. There were two people in the vehicle. Mr.

Billard was the driver and the officer identified him in court as the same person who he had stopped. [ 5 ] Mr. Billard produced a valid British Columbia driver’s licence, the vehicle was insured properly and he was the registered owner. [ 6 ] The officer confirmed that he had obtained the order of driving prohibition from Saskatchewan (exhibit 1) in February 2016, the certification of disqualification and driver profile (exhibit 2) in January 2016. He confirmed that it is a rare occurrence to have a prohibition and valid licence at the same time and he has dealt with this once before. He also confirmed that Mr.

Billard pulled over immediately and was cooperative about providing all the documents as requested. He cannot recall if Mr. Billard said anything to him and he did not keep notes. Mr. Billard came in to provide fingerprints in February 2016 and made some comments so there may have been a conversation about the prohibition. [ 7 ] Robin Potts is currently the Audit and Oversight Manager of ICBC in Courtenay B.C. He has been employed by ICBC for many years and issued hundreds of licences.

He explained how the process works and referred to exhibit 3 which is an incomplete document as it shows the driver declaration and information required and how to return to the pre-screen but the abstract is missing on the bottom part of the document. He explained that the customer has to show primary and secondary identification when applying for a licence in B.C. The name and address are required to be personally verified and any updating information such as address is to be provided.

There is a provision for a hold on the driver declaration if there is a problem with reissuing the licence and the process cannot proceed any further until the hold is removed. Once that is done, there are three questions to be answered by the customer: 1) is your driver privilege currently suspended, revoked, cancelled of prohibited in British Columbia or any other jurisdiction; 2) do you hold a driver’s licence issued outside of British Columbia; 3) do you have any medical or physical conditions; 4) was a translator used (which the agent fills in).

The master record is not available to the agent at the wicket unless authorized but the agent is required to enquire from the customer and other sources within the ICBC database why there is a hold and once that is satisfactorily addressed the application can continue. The hold includes a prohibition order. [ 8 ] Mr. Potts explained exhibit 3 and confirmed that there was a hold but no expiry date for the cancelled licence and that a licence was issued on November 2, 2015. Furthermore, Mr.

Billard the customer answered no to the question of whether his driving privilege was currently revoked and that he did not have a licence issued outside of B.C. [ 9 ] Mr. Potts also confirmed that the licence had been issued by a service agent, Service BC in Courtenay. Insurance brokers have contracts with ICBC. Basic Insurance can be obtained through ICBC and optional private insurance purchased through a broker. He also stated that the details of a HOLD would be shown on screen and the ICBC agent would have been alerted to it and it would have had to be resolved before the issuance of the licence could occur.

If there is a hold the agent must check further but the agent cannot access the master record. [ 10 ] He confirmed that when a customer buys a vehicle, and seeks to insure it, the agent would have similar information as the ICBC agent but more limited and would have no access to the abstract which contains different types of information. An agent can contact ICBC for additional information or the customer can get that information if for instance the customer buys a vehicle at a car lot and wants to insure it there. Insurance cannot be purchased if there are fines for instance or prohibitions. [ 11 ] Mr.

Pott confirmed that on exhibit 3 a cancellation was indicated but there was an issue date for a licence on Nov 4, 2015. He conceded that it is possible for an individual to attend at Service BC and be told there is no outstanding prohibition and accordingly answer no to the question whether his driving privilege is suspended, revoked, cancelled or prohibited in B.C. or any other jurisdiction. He also confirmed that a Canada wide prohibition would be a significant hold and it would show up on a query by the insurance agent, or broker who is the agent of ICBC. [ 12 ] Mr. Billard testified on his own behalf.

He has type 1 diabetes and some damage to his left eye but neither condition affect his driving ability. He confirmed driving on December 13, 2015 with his girlfriend in an older Ford Explorer he had recently purchased. He confirmed the insurance and registration was in his name. He obtained the insurance and registration at the Miracle Beach Clearing House car lot in Courtenay. He bought a cheap vehicle for work on the lot. The insurance representative at the car lot said he could get insurance on the vehicle in his own name. He told her about the prohibition in Saskatoon.

He was going to insure the vehicle in his girlfriend’s name. She ran his name and said there was nothing on his file about the prohibition. She looked up his licence online when he gave her his birthdate and he assumed his suspension was over based on her comment. The following day he went to Service BC on Cliff Avenue in Courtenay and told the agent that he had a prior suspension. She said there was nothing showing and he could get his licence. He was given an interim driver’s licence. On Dec 13 th he gave the licence to Constable Jones when he was stopped.

He also provided his licence and registration and insurance. He returned to the insurance agent the following day and asked why he had been suspended. He was told it was a computer error and that he would have to take a driving course to get his licence back. [ 13 ] He did not think he was prohibited from driving on December 13, 2015 and he had a valid licence.

[14] He did not think he had to provide evidence of who the agents were and what they had said to him. He thought the suspensionwas over. He did not have the prohibition order anymore. He did not contact Saskatoon but he did return to ICBC after he was arrestedand spoke to a different lady but made no notes of the conversation. [15] Defence counsel submits the court has to consider two issues, namely mens rea and officially induced error. He submits thatMr.

Billard’s behaviour when he was stopped and afterwards, confirms his state of mind as he was cooperative, stopped immediately onrequest, willingly provided his licence and other documents and then returned after his arrest to the ICBC agent to inquire what had gonewrong. He was told it could have been a computer error.

Furthermore, the prohibition order was in February 2015 and the B.C. eventoccurred in December some 10 months later so it was not within a short time of the prohibition which he believed had expired. [16] Crown seeks a conviction on the basis that he was aware he was prohibited and should have checked more thoroughly. Furthermore, Crown submits that Mr. Billard’s evidence is not credible, reliable or consistent and the court should not accept hisevidence.

Crown submits the doctrine of officially induced error only applies when the Crown has proved all the elements of the offenceand that the court should accept that he knew he was prohibited at the time of driving. The court can only enter a judicial stay if thatdoctrine is established on the evidence. The accused is required to prove a number of factors on the balance of probabilities in order tosustain an application for a judicial stay on this basis.

Crown submits that he has failed to do so. [17] Both counsel provided useful authorities which are relevant to the issue to be determined and are discussed below commencingwith a discussion of the defence authorities. [18] The court has to consider credibility and where it is a live issue such the case at bar if the accused’s evidence is believed, thecourt must acquit (R. v. W.D., (SCC), 1991 1 SCR 742). If the trier of fact cannot decide whom to believe afterconsideration of all the evidence, and is unable to decide, the court must acquit (R. v.

C.W.H. (B.C.C.A), (BC CA),1991 BCJ No. 2753). [19] The Crown has to prove all elements of the offence including mens rea as this is not a strict liability offence and knowledge of the prohibition is required (R. v. Baril, (SCC), 1979 46 CCC 2nd 257; R. v. Mitri, 1989 OJ No., 1873). [20] In R. v.

Fisher (1991), OJ No. 830 the accused was acquitted on the basis of his evidence that he believed and understood thathe could drive because of the representations of certain authorities, and had been provided with a valid driver’s licence and that he lackedthe necessary mens rea based on the documents which were exhibited in support of that evidence. Even where the defendants evidenceabout why he believed he was not prohibited is uncorroborated, if the Crown does not contradict that evidence and if the court finds thathis credibility has not been seriously challenged, that evidence can give rise to a doubt (R. v.

Mitri above). In R. v. Saindon, 1993 AJ No.1087 the court based the acquittal on his lack of mens rea rather than officially induced error because the accused, relied on theinformation of the relevant authorities that he could lawfully operate a vehicle at the time of driving. [21] In R. v. Gauntley, 1999 OJ No. 5315 the issue on appeal was whether the court had applied the correct test in assessing wilfulblindness by the accused who had his licence returned before the prohibition period had ended.

The court concluded that there must be afinding that the accused’s evidence that he could drive lawfully was not credible before applying the doctrine of wilful blindness. If hissuspicions were aroused about not being able to drive but he deliberately failed to make further inquiries from the appropriate authoritieshe is wilfully blind. [22] The test is subjective as to whether the accused believed he could not drive but chose not to confirm what he knew or suspectedwas the truth by making further enquiries (paragraph 13 and 14). In R. v.

Gauntley the court concluded that the issue whether theaccused knew his licence was suspended when he drove was a question of fact and not law or mixed fact and law (paragraph 16). [23] While the above decisions deal with officially induced error as a defence rather than doctrine giving rise to a judicial stay, morerecent decisions have set out the criteria a court has to consider when dealing with these types of cases. In R. v. Key, 2012 SJ No. 193the court registered a judicial stay on the basis of the criteria set out in the Supreme Court of Canada in R. v.

Jorgensen (1995), (SCC), 4 SCR 55 at paragraph 25 that officially induced error of law exists as an exception to the rule that ignorance of law isnot an excuse and at paragraph 26 that the Crown has to establish the elements of the offence beyond a reasonable doubt. The accusedthen has to prove six elements on the balance of probabilities to be entitled to a judicial stay.

These factors are 1) that an error of law ormixed law and fact was made; 2) the accused considered the legal consequences of his actions; 3) the advice came from an appropriateofficial; 4) the advice was reasonable; 5) the advice was erroneous and 6) the person relied on the advice in committing the act givingrise to the charges. [24] In R. v. Kulbacki, 2012 OJ No. 4020 (relying on the criteria in R. v.

Jorgensen) the court entered a judicial stay on the basis thatthe defence of officially induced error applied and that the Crown had to prove all elements of the offence beyond a reasonable doubt andthat the criteria set out in R. v. W.D. are to be applied if the accused testifies in his own defence at trial. The court has to considerwhether or not he can be believed and if he raises a defence that the court accepts he must be acquitted. It is only if all the essentialelements of the charge are proved beyond a reasonable doubt by the Crown that the court may convict. Relying on R. v.

Mach, (SCC), 1988 2 SCR 903 at pages 944-945 the court held that like entrapment an officially induced error of law the accusedhas done nothing to entitle to him to an acquittal but the state has done something which disentitles it to a conviction and consequently ajudicial stay should only be entered in the clearest of cases. [25] The Crown’s cases also include R. v. Jorgensen which confirms that official induced error of law can only be raised after theCrown has proved all the elements of the offence which would include mens rea.

Furthermore, officially induced error is distinct fromthe defence of due diligence but in order to establish officially induced error there must be some efforts made as set out in R. v. Eckert,2011 AJ No. 1577 where the accused failed to make inquiries such as those made in R. v. Fisher and R. v. Saindon where the accusedfollowed up with the relevant agencies to determine the status of the prohibition. [26] In R. v.

Wilton, 2012 OJ No. 6481 the accused was found to have the necessary mens rea as he admitted he knew he was drivingwhile prohibited and he failed to establish on the balance of probabilities the six elements required to give rise to a judicial stay for

officially induced error. The issues in R. v. Howard, 2010 BCJ No. 1213 were whether the accused had established on the balance of probabilities that he believed he was not prohibited on the date in question and had exercised due diligence. He admitted that he did not have a licence to drive and the court found that he did not believe he was acting lawfully. The court further found on the facts that he had failed to exercise anything close to due diligence on the date in question. [ 27 ] On an analysis of the principles in the authorities provided, Mr.

Billard’s case can be distinguished in numerous material ways. [ 28 ] First of all the Crown has failed to prove all the elements of the offence, specifically mens rea that he knew he was driving while prohibited ( R. v. Baril; R. v. Mitri ). Mr. Billard’s evidence is that he believed he could drive lawfully as he had been provided a B.C. driver’s licence after being told by the insurance agent at the car lot which was confirmed by the ICBC agent in Courtenay that there was no prohibition ( R. v. Fisher; R. v. Saindon ).

While there was a licence cancellation as noted on exhibit 3 before the court there was no expiry date indicated. Mr. Potts confirmed that the hold has to be removed before the application for a licence can go any further and the insurance agents would have queried the hold in order to proceed further. Despite the hold, there was a B.C. licence issued to Mr. Billard confirming what the agent at the car lot and the agent at the ICBC service agent had told him. [ 29 ] Secondly, Mr.

Billard was cooperative at the time of the arrest and that behaviour supports an inference that he genuinely did not believe he was prohibited because he had a valid licence. The prohibition was some ten months earlier and not in the recent past which could also support an inference that he believed it had lapsed. The court accepts his evidence that he returned to the ICBC agent to query why he had been arrested and was told there had been a computer error.

Constable Jones testified that he had previously encountered one such case and that while it was a rare occurrence it had happened in the past. [ 30 ] Thirdly, Mr. Potts also testified that it is possible for someone to enquire whether there is a prohibition and if told there is not, could answer no to the first question as shown on exhibit 3 namely whether the customer’s driving privilege is suspended.

He also confirmed that if a customer asks about a prohibition as significant as a Canada Wide prohibition, it will show up for the agent and the licence cannot be issued. [ 31 ] The court accepts his evidence that he mentioned the prohibition to the agent at the car lot when the vehicle was insured and registered and that he mentioned it again the next day when he applied for his licence. On both occasions he was told there was no prohibition and he was given a licence in November 2015.

After he was arrested he returned to the ICBC agent to find out why he had been arrested for driving while prohibited and was told that it was a computer error. [ 32 ] Even though the accused’s evidence was not corroborated the Crown did not contradict his evidence ( R. v. Mitri; R. v. Saindon ) and accordingly his evidence was not seriously challenged and gives rise to a serious doubt and on the basis of R. v. C.W.H . and R. v. W.D . Mr.

Billard has to be acquitted on the basis of lack of mens rea . [ 33 ] Furthermore, the court accepts his evidence regarding his disclosure about his prohibition and he established a basis for due diligence by commenting on his prohibition to the two agents at the car lot and at the ICBC service agent in Courtenay similar to R. v. Fisher where the accused was acquitted on the basis of the representations of certain authorities. The test is subjective ( R. v. Gauntley ) and on Mr.

Billard’s evidence he was provided with a valid licence to drive in B.C. and there is no evidence to suggest that his suspicions were aroused that he was still prohibited and failed to follow up unlike cases such as R. v. Wilton and R. v. Howard . [ 34 ] Even if the Crown had established mens rea due to knowledge or failure to exercise due diligence and all the elements of the offence as required ( R. v.

Kulbacki ) before the accused can rely on the doctrine of officially induced error, there would be evidence on both the Crown case and defence case to support a judicial stay based on officially induced error. [ 35 ] On the totality of the findings of fact arising from the evidence, the court finds that Mr. Billard should be entitled to the benefit of the doubt regarding his mens rea which is an essential element to be proved by the Crown of all elements of the offence with which he is charged and before a conviction can be entered.

The doctrine of officially induced error would only come into play once all the elements of the offence are proved beyond a reasonable doubt ( R. v. Jorgensen ) which has not occurred. [ 36 ] Accordingly, Mr. Billard is found not guilty and discharged. BY THE COURT ______________________________ The Honourable Judge J.E. Saunders