R. v. Colegrave, 2018 BCPC 69

Citation: R. v. Colegrave 2018 BCPC 69 Date: 20180326 File No: 82888-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEITH MacLEAN COLEGRAVE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C. Narroway Counsel for the Defendant: T. Russell Place of Hearing: Nanaimo , B.C. Date of Hearing: February 16, 2018 Date of Judgment: March 26, 2018 The Issue [ 1 ] Mr. Colegrave is charged, under section 259(4) of the Criminal Code , with the offence of driving while prohibited. He says that he did not know that he was subject to a driving prohibition on the date in question, and that he was encouraged in the belief that he

was not prohibited because the Province of British Columbia issued him a new driver’s license 2 months before the date of the alleged offence. The Facts [ 2 ] On April 26, 2012, Mr. Colegrave was convicted by the Provincial Court of Alberta of an offence under section 259(4) of the Criminal Code . One element of his sentence for that offence was a driving prohibition in the following terms: [Mr. Colegrave] shall be prohibited from operating a motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of 6 years. Mr.

Colegrave’s signature appears below the following words on the driving prohibition issued by the court: I, Colegrave, Keith MacLean, 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 I have been informed of the provisions of subsection 259(4) of the Criminal Code which are printed below. I further acknowledge receipt of a copy of the within order. Dated this 26 th day of April, 2012 at Medicine Hat, in the Province of Alberta During his evidence at trial, Mr.

Colegrave admitted that the driving prohibition was read out loud to him on April 26, 2012. [ 3 ] In 2012, Mr. Colegrave was the owner of a roofing business in Alberta. After receiving his driving prohibition, he refrained from driving in Alberta. Any necessary driving was done by his employees. In September, 2016, Mr. Colegrave decided to move to British Columbia. At that time, he did not have a copy of his driving prohibition, and was uncertain as to its expiry date. He hired someone to drive him to Vancouver Island, and paid the driver’s return airfare to Alberta. [ 4 ] On November 16, 2016, Mr.

Colegrave attended at a motor vehicle license office in British Columbia and applied for a driver’s license. The following is his evidence in chief about the application process: Q. All right. And what -- and so did you go to a Motor Vehicle Branch in B.C.? A. Yes I did. Q. And did you apply for the driver’s license that is Exhibit 1? A. Yes Q. And the … A. I went to get my driver’s license back, if I could. Q. Did they ask you any questions about …? A.

I went through all the driving tests, and the questions, and everything else, yes, to get -- to get my license back. * * * I thought it [the Alberta driving prohibition] was over. I wasn’t sure. I went to see. Q. And when you say you went to see, that’s why you attended Motor Vehicles? A. Yes Q. All right. So, on the 17 th of January, 2017, while you were driving, did you believe that you were prohibited? A. No The following is his evidence on the point during cross-examination: Q. Did they ask you if you were prohibited from driving anywhere else in the country? A. They asked if I had an active license anywhere.

Q. Mmmm A. And it proceeded from there. Q. Did they ask you … A. It wasn’t a conversation. It was, was I -- did I have an active license anywhere, and I said no. Q. Did you ask the Motor Vehicle Branch if they could check that you were no longer prohibited, because you weren’t sure? A. No, I didn’t.

Mr. Colegrave was not asked, and did not say, the name, job title or qualifications of the person to whom he spoke at the motor vehiclelicense office. He was not expressly asked whether he told that person that he had been prohibited from driving by an Alberta Court in2012. [5] After the interview described above, the motor vehicle license office issued to Mr. Colegrave a new British Columbia driver’slicense. He gave the following evidence in relation to it: Q. Did you believe when you were issued that license that you were still prohibited to drive? A. No Q.

On January 17th, 2017, when you were pulled over by Constable Pawluk, did you believe that you were prohibited to drive? A. No. I wasn’t. I didn’t. I had my license back. [6] I think that it would be reasonable to expect a citizen in Mr. Colegrave’s position to say to the clerk in the motor vehicle licenseoffice: A few years ago, I was issued a 6-year driving prohibition by a Court in Alberta. I think that it has probably expired, but I am not sure. Are you able to check that for me? As noted in paragraph 4, Mr.

Colegrave acknowledges that he did not ask that question. [7] During the evening hours of January 17, 2017, Constable Pawluk of the RCMP noticed a parked car with an Alberta licenseplate in Errington, British Columbia. There was no one in the vehicle. Constable Pawluk queried the plate, and was informed that: (i)Mr. Colegrave was the registered owner; and (ii) Mr. Colegrave was a prohibited driver. At 11:20 p.m., the vehicle launched intomotion. Constable Pawluk directed the driver to stop, which he did. The driver was Mr. Colegrave.

At Constable Pawluk’s request, Mr.Colegrave produced the British Columbia driver’s license which was issued to him on November 16, 2016. Constable Pawluk arrestedhim for driving while disqualified by reason of the Alberta prohibition. Legal Principles [8] In R. v. City of Sault Ste. Marie (SCC), [1978] 2 S.C.R. 1299, Justice Dickson defined three classes of criminaloffences: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must beproved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited actprima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event.

These offences may properly be called offences of strict liability …. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. The offence of driving while prohibited falls into the first class. In order to support a conviction for that offence, “… the Crown mustestablish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledgeof the facts constituting the offence, or with wilful blindness toward them.” R. v.

Prue (SCC), [1979] 2 S.C.R. 547. [9] A situation similar to that of Mr. Colegrave was considered in R. v. Whitworth 2013 ONSC 7413 , [2013] O.J. No. 5708; 2013 ONSC 7413; 59 M.V.R. (6th) 160. On January 19, 2012, Mr. Whitworth was arrested and charged with impaired driving. Atthe time of his arrest, he was served with notice of a 90-day administrative suspension of his driver’s license. On January, 20, 2012, Mr.Whitworth was released on bail in relation to the impaired driving charge. One of his bail conditions was that he not be found in thedriver’s seat of any motor vehicle.

The administrative driving prohibition expired on April 20, 2012. On May 1, 2012, Mr. Whitworthapplied for and was issued temporary driver’s license. On May 11, 2012, Mr. Whitworth was found driving a motor vehicle and wascharged with breach of his bail conditions. He explained that he believed that he was entitled to drive as soon as his administrativesuspension expired. He said that he had forgotten about his bail condition.

The learned trial judge acquitted him because: In my view, having been given a temporary driver’s license … the court is in doubt as to whether or not this man intentionally breachedhis recognizance of bail …. Justice Trotter (then of the Ontario Superior Court of Justice) dismissed the Crown’s appeal, on the ground that “… there was some basison the evidence for the trial judge to acquit Mr.

Whitworth because of a mistake of fact ….” Justice Trotter expounded the governingprinciples at paragraphs 13, 15 and 16 of his reasons for judgment: … an accused person who raises a reasonable doubt about an honest but mistaken belief of fact cannot be found liable. This sometimesgives rise to claims of forgotten court dates and misunderstood bail conditions. Depending on the circumstances, even a careless mistakemay be tenable, as long as it falls short of the "deliberate" ignorance required to establish liability based on wilful blindness: see R. v.

Weishar (2003) (ON SC), 13 C.R. (6th) 59, at pp. 67-70. * * * While factual mistakes are tenable, legal mistakes are not.

* * * Mr. Whitworth's position at trial straddled and, at times criss-crossed, the line between mistakes of fact and mistakes of law. On the onehand, he claimed to have forgotten about the non-driving condition in his recognizance. This slip was capable of being a mistake of fact.On the other hand, Mr. Whitworth testified that he believed he was permitted to drive because his 90-day suspension had expired and hehad been issued a temporary driver's licence by the Ministry of Transportation. This amounted to an assertion of a mistake of law. [10] Mr.

Colegrave says that he believed his driving prohibition to have expired before October, 2016. That was a mistake of fact. He also says that he believed that he was entitled to drive because he was issued a new driver’s license in October, 2016. That was amistake of law. The former may mean that he is not guilty of the offence with which he is charged. I discuss that issue in paragraphs 11-15, below. The latter may give rise to the defence of officially-induced error. I discuss that issue in paragraphs16 - 18, below. [11] I have concluded that Mr.

Colegrave did not make reasonable enquiries to determine the expiry date of his driving prohibition. However, that conclusion does not resolve the issue of mistake of fact. [12] Different legal consequences follow if the accused person committed the prohibited act by reason of a mistake of fact (in thiscase, Mr. Colegrave’s belief that his driving prohibition had expired), depending on whether the offence fell into the first or second classof offences defined in Sault Ste. Marie. Justice Martin expressed the difference in the following way in Regina v.

Metro News Ltd. (ON CA), [1986] OJ No. 826; 56 OR (2d) 321 @ paragraph 59: A mistake of fact which negatives the mental element which is part of the definition, express or implied, of the offence negatives theoffence. If the requisite mental element required by the definition of the offence is lacking, the offence is not proved, whether theabsence of the requisite mental element was due to a reasonable mistake of fact or an honest although unreasonable mistake of fact.Where, however, the doing of the act prima facie imports the offence, the defence of mistake of fact must be reasonable.

Because the offence alleged in this case falls into the first class of offences, it does not matter whether Mr. Colegrave’s mistake wasreasonable. [13] I think that I am obliged to address the following questions in the following order: a. Am I satisfied beyond a reasonable doubt that, on January 17, 2017, Mr. Colegrave knew that the driving prohibition imposedby the Provincial Court of Alberta had not expired? I am not so satisfied. I conclude, on a balance of probabilities, that he was in doubton that question. b. Was Mr.

Colegrave, on January 17, 2017, wilfully blind as to the expiration date of his driving prohibition? As Justice Trotterobserved, “wilful blindness” was defined in R. v. Weishar [2003] O.J. No. 3065 @ paragraphs 40 - 41: Recklessness is the attitude of a person who, aware that there is a danger his conduct could bring about the prohibited result,nevertheless persists, despite the risk. It is the conduct of one who sees the risk and takes the chance. It is conduct whereby the persondoes not desire a harmful consequence but nonetheless foresees the possibility and consciously takes the risk.

It is the state of mind of aperson who does not care about the consequences of his or her actions. Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the defendant's fault in deliberately failing to inquire when he knows there is a reason for inquiry …. The following passage was quoted with approval in R. v. Jorgensen (SCC), [1995] 4 SCR 55 @ paragraph 102: A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.

He suspected the fact; herealized its probability; but refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone, is wilful blindness. [14] It is to be noted that the Crown carries the onus of proving mens rea, whether it consists of actual knowledge or of wilfulblindness. Mr. Colegrave’s decision to give evidence in his own defence afforded the Crown an opportunity to discharge the onus in thiscase.

So, for example, he might have been confronted in cross-examination with the proposition that, when he attended at the motorvehicle licensing office November, 2016, he deliberately refrained from asking the clerk for the expiry date of his Alberta prohibition forfear of being told that it was still in effect. His response to that, and similar, questions might have laid an evidentiary foundation for aninference of wilful blindness.

Because no such questions were asked, the evidentiary foundation is absent and I am in no position to drawthe inference. [15] Because the Crown has not proven either actual knowledge or wilful blindness, the requisite mens rea is not established, and Iam obliged to acquit Mr. Colegrave. [16] If I have erred on the question of mens rea, it would be necessary to consider the defence of officially-induced error. Theapplicable principles were recently reviewed by Chief Judge Pike in R. v. Homer [2016] N.J. 67. Briefly summarized, they are: a.

Where the defence of officially induced error is raised, it should take the form of an application for a judicial stay ofproceedings. No such application was made in this case. b. The accused carries the onus of proof on the application. c. The accused must establish that he consulted an appropriate official for the purpose of obtaining advice about the legality of his

proposed course of action, that he was given such advice by that official, that the advice was erroneous but reasonably capable of belief, and that he reasonably relied on the advice which he was given by that official. [ 17 ] The evidence in this case falls far short of discharging the onus carried by Mr. Colegrave. The identity of the person to whom he spoke at the motor vehicle license office is not in evidence. There is no evidence by which I could assess whether that person was an appropriate official to consult. Mr. Colegrave did not say what question(

s) he put to that individual or what answers he received. He did not say that he relied upon the advice given him by any official. He said that he relied on the fact that he was issued a new driver’s license. [ 18 ] An application for a judicial stay of proceedings might have succeeded in this case if Mr.

Colegrave had given evidence to the effect that: a. he attended at a motor vehicle license office in British Columbia; b. he told the licensing officer that he had been prohibited from driving in Alberta in 2012, that he was unsure whether the prohibition remained in effect, and that he required advice as to whether he could be eligible to drive in British Columbia; c. the licensing officer told him that he was eligible for a new British Columbia driver’s license and issued one to him; and d. he inferred that he was entitled to drive in British Columbia. At the trial before me, Mr.

Colegrave gave no evidence pertinent to any of items “b” – “d’. For that reason, an application for a judicial stay of proceedings could not succeed. March 26, 2018 ___________________________ T. Gouge, PCJ