R. v. Tsang, 2013 ONCJ 808

DATE: 2013·02·27 Citation: R. v. Tsang, 2013 ONCJ 808 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PAK LAM TSANG JUDGEMENT Heard on February 20, 27, 2013 Reasons Delivered February 27, 2013 Mr. Jeffrey Pearson ............................................................................................... for the Crown Ms. Maleeka Mohamed ........................................................................................ for the accused KENKEL J.(Orally): 1. Mr.

Tsang is charged with failing to comply with a bail term that he not be in the front seat of a motor vehicle contrary to s.145(3) ofthe Criminal Code. 2. Constable Marcoux saw a red Ferrari pull out of a parking lot and travel along Major Mackenzie Drive at a high rate of speed. Hepaced the car and caused the driver to stop for speeding. Further investigation revealed that the driver Mr. Lam was on bail at the time. A condition of that bail prohibited him from occupying the front seat of a vehicle. 3. The defence concedes that the Crown has proved that the bail term was in effect at the time and that Mr.

Tsang’s driving breached thatterm. The sole issue at trial is whether the Crown has proved that the breach was an intentional one given Mr. Tsang’s evidence thatonce he received his license back from the Ministry of Transportation (MOT) following the 90 day suspension he thought it was alrightfor him to drive. 4. The offence of failing to comply with a recognizance is a criminal offence requiring proof of an intentional act. R. v. Legere (ON CA), [1995] OJ No.152 (CA) Mere carelessness is not sufficient. 5. The defence concedes that Mr. Tsang’s mistake does not meet the test for officially induced error.

Assuming that he did make theinquiry he described at the time he attended the Ministry of Transportation (MOT) office to obtain a new license after his 90 dayprovincial suspension, his query was only about his license status at that point. He also referred to asking about his license plate statusalthough this may have been an artefact of translation. Given his bail term he knew that there was a need for an inquiry, but he chose notto tell the person at the MOT desk that he was on a bail which included a term that prohibited him from driving.

The informationprovided by the desk clerk as to the license was accurate but the clerk provided no information about the bail condition because theywere unaware of it. 6. Mr. Tsang agreed he was represented by a lawyer for the Toronto charges and the Information shows that the lawyer appeared for himmonths before this offence date. Knowing there was a need for an inquiry about his bail condition, Mr. Tsang chose not to ask his lawyerfor legal advice on that point. 7. The credible evidence at trial strongly suggests Mr.

Tsang knew well that he was prohibited from driving at the time of the offence,but even if his evidence as to mistake is correct, the mistake was one he deliberately created. 8. There’s no circumstance here that reasonably could have led Mr. Tsang to believe that he was no longer bound by one of the terms of

his bail on the date he was found driving. If Mr. Tsang did mistakenly hold that belief it was a mistake that he created by his choice notto make an inquiry where he knew that one was necessary. His wilful blindness does not provide a defence and is not a reasonable excuseunder s.145(3). R. v. Smith 2008 ONCA 101 , [2008] OJ No.465 (CA) 9. I find that the Crown has proved the charge alleged beyond a reasonable doubt. Released: February 27, 2013 Justice Joseph F. Kenkel