R. v. Rhone Date:, 2012 BCPC 254

Citation: R. v. Rhone Date: 20120709 2012 BCPC 0254 File No: AH48589561 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Regina v. KELLY RAE RHONE REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON Appearing for Crown : Cst. M. Kubitza Counsel for Disputant: G. Rhone Place of Hearing: Duncan , B.C.

Date of Hearing: April 10, 2012 Date of Judgment: July 9, 2012 Introduction [1] The Disputant, Ms. Rhone was ticketed under section 24(3)(

b) of the Motor Vehicle Act, RSBC 1996 c. 318 for operating amotor vehicle on a highway when the motor vehicle was not insured under a valid and subsisting motor vehicle liability policy. Ms.Rhone was not aware that her motor vehicle insurance had expired. The issue is whether she has a defence to the charge for that reason. Legislation [2] Section 24(3)(

b) reads Motor Vehicle Act Offences 24

(3) A person must not drive or operate a motor vehicle or trailer on a highway unless (

a) the person is insured under a valid and subsisting driver's certificate, and (

b) the motor vehicle and the trailer, if any, are insured under a valid and subsisting motor vehicle liability policy evidenced by anowner's certificate. Facts [3] On May 4, 2011, Cst Kubitza was southbound on the Trans Canada Highway at Shawnigan – Mill Bay Road in Mill Bay. Heis an officer with the Saanich Police Department, seconded to the Integrated Road Safety Unit. Cst Kubitza noted that the blackChevrolet Tahoe in front of him displayed an expiry sticker on the rear licence plate of April 28, 2011.

He ran the plate number on hisin-car computer which confirmed the insurance on that vehicle was expired as of April 29, 2011. [4] He then effected a stop. There were two occupants, a female driver and a child. The officer advised the driver, Ms. Rhone,that she had been stopped for having no insurance. She attempted to locate the insurance documents in the vehicle but could not findthem. The officer agreed on cross examination that Ms. Rhone appeared surprised when told the insurance on the vehicle was expired. [5] Cst Kubitza advised Ms.

Rhone that he would have the vehicle towed from the side of the highway and she could have it towedto either her home or the nearest motor vehicle insurance office. She wanted to drive the vehicle herself but the officer advised her thatas the vehicle had no insurance, it could not be driven anywhere. Her husband, a lawyer in Victoria [also her counsel in this trial],arrived shortly thereafter and also wanted to drive the vehicle to the nearest insurance agent. Again, the officer refused the request. [6] There are two other facts relevant to this matter. Mr. Rhone is the registered owner of the Tahoe and Ms.

Rhone is declared asthe principal operator. [7] Ms. Rhone testified that there were three vehicles in the household, all registered in the name of her husband: a HondaRidgeline, a Chevrolet Tahoe and a motorcycle. She also testified that in their household, her husband was responsible for financialmatters, including renewal of any vehicle insurance. She was aware that he had renewed the insurance on the Honda Ridgeline in midApril. She was not aware that the insurance had expired on the Tahoe at midnight of April 28.

Analysis [8] Ms Rhone argued that the offence of driving without liability insurance was one of strict liability and that it was enough for herto have an honestly held belief that the Tahoe was so insured that evening to be a sufficient defence to be acquitted. [9] Although by the end of the trial she did not seriously argue that the Tahoe was not insured, I will make this issue clear bystating that I am satisfied from all of the evidence that she committed the actus reus: driving a vehicle on a highway that was not insuredunder a vehicle liability policy. [10] On the basis of R. v.

Blackburn, (BC CA), 25 BCLR 218 (CA), I am satisfied that this offence is one of strict

liability. On that basis, what is required to establish a defence? [11] Ms. Rhone argued, strenuously, that she honestly believed the Tahoe was insured and that honestly held belief meets thedefence of due diligence. She relied on R. v. Tjelta, [1983] BCJ No 1157, a decision of the BC Supreme Court. That decision refers tothe “Sault Ste. Marie decision”. The case is one involving the same offence as here. The judgment was given orally.

Justice Landerconcluded that, because the trial judge had found as a fact that the accused had mistakenly believed the vehicle was insured, that was adefence and grounds for acquittal. [12] In my view, there are not enough facts recited in the Tjelta judgment for me to determine how Justice Lander applied thedefence under the reasoning in Sault Ste Marie. For that reason, I conclude it is of limited authority. [13] I take R. v. Sault Ste. Marie (SCC), [1978] 2 SCR 1299 as my starting point and as providing my guidingprinciples in applying the defence. Sault Ste.

Marie is the seminal decision in Canada on the defence under a strict liability offence. Inthat case, Justice Dickson for the Court reviews the development of the law around strict liability and its defences, as enunciated byjudges and academic commentators around the Commonwealth.

He then formulates the principles to be applied. [14] Justice Dickson says in describing strict liability as one of three categories of regulatory offences, at page 1326: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports 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. [15] I consider the meaning of reasonable care in any particular case to be drawn from context. That context will be informed by thesignificance of the offence, or the significance of the requirement the breach of which constitutes the offence, and the means or ease aperson has of determining compliance.

Reasonable care is an objective standard. [16] I am sure most drivers in this Province understand the high level of risk that driving without liability insurance puts the driver,any passenger and any person or property that could be at potential harm by the vehicle being driven by that driver. A vehicle is a lethalweapon and it can take only a momentary lapse of attention by even a very safe driver to result in catastrophic injury to a pedestrian.

And that injured person is left to other means of pursuit, which may prove empty, to obtain compensation if the vehicle causing theaccident is uninsured. [17] The significance of the requirement to have vehicle liability insurance, and the seriousness of its breach, is also reflected in thefine on conviction: $520 plus victim surcharge levy of $78 [$598], with a minimum fine of $300. That amount is the highest fine underthe Act, higher by $200 for driving without due care and attention and by $100 for driving more than 60 km/h over the speed limit.

Onlysome offences involving commercial vehicles have an equal amount of fine. [18] In this case, the evidence is that although Ms. Rhone is the principal driver of the Tahoe, she left it to her husband to look afterinsurance. She also testified that her husband did not receive notification from ICBC of the pending expiry. Given the context ofreasonable care stated above, is that a sufficient basis to constitute a defence?

I think not. [19] Although I appreciate that not many of us regularly check the date tagged on the rear plate of any vehicle we drive, it iscertainly an easy way to determine, or be prompted to inquire about, the expiry date of its liability insurance. Also in this day and age ofcalendars on our computers with reminders, it is an easy way of being reminded of important expiry dates [house insurance, vehicleinsurance].

Decision [20] I conclude that simply leaving it to her husband to look after the renewal of insurance of a vehicle of which she is the principaloperator is not sufficient reasonable care for this regulatory offence. I therefore conclude Ms. Rhone did not take the requisite reasonablecare to determine if the Tahoe was insured under a liability policy when she drove it on May 4, 2011, nor did she take reasonable steps toavoid doing so. [21] For this reason, I find her guilty of the charge of driving a vehicle without liability insurance under section 24(3)(

b) of the Act. ________________________ H. W. Gordon Judicial Justice