R. v. Machimity, 2011 ONCJ 187

COURT FILE No.: SIOUX LOOKOUT 100830 Citation: R. v. Machimity , 2011 ONCJ 187 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN MACHIMITY Before Justice A. T. McKay Heard on February 11, 2011 Reasons for Judgment released on April 7, 2011 Josh McKay ............................................................................................................... for the Crown David Gibson .................................................................................. for the accused John Machimity MCKAY J.: [ 1 ] The accused pled not guilty to a charge of operating a motor vehicle while disqualified from doing so, contrary to section 259(4) (

a) of the Criminal Code . The facts are straightforward. The defence did not call any evidence. Evidence of the Crown [ 2 ] Detective Constable Stephen Waite is a member of the Sioux Lookout OPP detachment. On April 19, 2008, while off duty, he was travelling from Sioux Lookout to Dryden with his family in his personal vehicle via highway 72. He came upon a vehicle, which was in the northbound ditch of the highway, partially on its roof. The only individual at the scene was a male who was in the ditch by the vehicle making his way from the vehicle to the roadway.

Detective Constable Waite described the individual as being wet, with grass in his hair, shaking, with bloodshot eyes and “speech not the greatest”. The individual had no visible injuries. Detective Constable Waite stopped his vehicle and rolled down the window. The other individual approached his vehicle and spoke with Detective Constable Waite through the window. He indicated that he was the only occupant of the motor vehicle. He indicated that he was driving, swerved to miss a deer and that he was not injured in the accident.

He also indicated to Detective Constable Waite that he had notified a friend who was going to Dryden and that person would notify the Dryden OPP detachment. Detective Constable Waite indicated to the individual that he would go to the crest of a nearby hill so that he would have cell phone coverage, and he would call the OPP detachment in Sioux Lookout on his cell phone. He asked the driver to stay at the scene. [ 3 ] Detective Constable Waite left and drove approximately one half of a kilometre to the crest of the hill. He then made the call to Sioux Lookout OPP.

After being gone from the accident scene for two to three minutes, he returned and found that the driver of the vehicle had left the scene. Detective Constable Waite returned to the crest of the hill and notified the OPP communications centre that the driver was gone. He then returned to the accident scene and waited there for Constable Lowrey of the OPP to arrive. While waiting, he made observations of the scene and thought it unlikely that the accused had swerved to miss a deer.

He assisted Constable Lowrey at the scene for a period of time and then left to continue his trip to Dryden. [ 4 ] Constable Clark is with the OPP Ignace detachment. He testified that he was contacted by the OPP communications centre on April 19, 2008, and given the name and date of birth of the accused. He was asked to forward a photo of the accused to Constable Lowrey at the Sioux Lookout detachment. The following day, Constable Lowrey showed Detective Constable Waite the photo, and Detective Constable Waite identified the person in the photo as the driver of the motor vehicle.

He confirmed that identification of the accused as the driver on the day of trial. [ 5 ] Stanley Carpenter is a 71 year old civilian. He is retired and lives in the Frenchmen’s Head community of the Lac Seul First Nation. April 19, 2008, he was travelling from Frenchmen’s Head to Dryden with his family. He came upon the accident scene. The accused walked from the vehicle in the ditch to Mr. Carpenter’s vehicle and spoke with him. The accused was all wet, but confirmed that he was not hurt. Mr. Carpenter has known the accused for a number of years from the time that he lived in Savant Lake.

The accused indicated that there was no one else with him. They agreed that Mr. Carpenter would notify the Dryden OPP detachment when he arrived in Dryden. [ 6 ] In addition to that evidence, the Crown filed certain documents from the Ministry of Transportation, Office of the Registrar of Motor Vehicles. Those documents certify that the driver’s license of the accused was suspended March 26, 2006, pursuant

to the Highway Traffic Act “for not completing the Remedial Program”. The document further certified that notice of the suspension was forwarded by mail to Mr. Machimity on March 20, 2006, at his mailing address listed in the records of the Ministry. The document further stated that the suspension of the driver’s license of the accused was still in effect on April 19, 2008. [ 7 ] A copy of the notice of suspension was filed. It read as follows: “Your driver’s license will be suspended under

Section 41.1 of the Highway Traffic Act for not completing the Remedial Program. Effective Mar. 26, 2006. Your license will remain suspended until you have successfully completed all the required components of the Remedial Program for impaired driving. If you have not yet registered call 1-888-814-5831. In Toronto call 416-595-6593. Reinstatement fee: due to your suspension(

s) you must pay a fee of $150.00 before you can obtain a license after your suspension(

s) ends. Please see the back of this form on how to pay the fee.” [ 8 ] The Criminal Code provides the following in section 259(5) : “

(5) For the purpose of this section, “disqualification” means (

a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of the subsections (1), (2) and (3.1) to (3.4); or (

b) a disqualification or any other form of legal restriction of the right to privilege to operate a motor vehicle, vessel or aircraft imposed (

i) in the case of a motor vehicle, under the law of a province, or (ii) in the case of a vessel or aircraft, under

an Act of Parliament, in respect of a conviction or discharge under

section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4). [ 9 ] The relevant portion of

section 260 of the Criminal Code reads as follows: “

(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259(5)(

b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and its duration.

(5) In proceedings under

section 259, a certificate setting out with reasonable particularity that a person is disqualified from (

a) driving motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province... is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.” The Issue [ 10 ] The Information charging Mr. Machimity reads as follows. It alleges that Mr. Machimity: “Did operate a motor vehicle while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code contrary to the Criminal Code section 259(4) (a).” [ 11 ] The Crown has proven that Mr.

Machimity was operating a motor vehicle on April 19, 2008. In addition, the Crown has proven that on April 19, 2008, Mr. Machimity’s driver’s license was suspended pursuant to the Highway Traffic Act for not completing the remedial program for impaired driving. The Crown has proven that Mr. Machimity was a disqualified driver pursuant to section 259(5)(

b) at the relevant time. [ 12 ] The issue raised by the defence is as follows. In the Information charging the accused, the Crown specifies that Mr. Machimity was disqualified from operating a motor vehicle by reason of an order pursuant to section 259(1) of the Criminal Code . The defence takes the position that by specifying an order for section 259(1) of the Criminal Code, the Crown must specifically prove that there was a prohibition order in place under Section 259(1) at the time the accused was operating the motor vehicle. The Crown did not do so.

The defence position essentially is that the issue would not exist if the Crown had simply charged the accused with operating a motor vehicle while disqualified from doing so, or by proving the existence of a prohibition order under section 259(1) of the Criminal Code at the time of operating the motor vehicle. [ 13 ] As in every case, the Crown is obligated to prove the offence beyond a reasonable doubt. As with the elements of all criminal offences, this need not be proven by way of direct evidence.

Circumstantial evidence will suffice if the Court can reasonably infer that the fact is proven sufficiently enough to found a conviction. As there is no statutory presumption, the Court is not obligated to draw that inference. There is evidence from which the Court could infer that, some time prior to March 26, 2006, the accused was

prohibited from driving pursuant to section 259(1) . There is no evidence as to what length of time that prohibition order would have been in effect. There is no evidence that on April 19, 2008, the accused was prohibited from driving pursuant to section 259(1) of the Code. There is evidence that on April 19, 2008, the accused was disqualified from driving pursuant to section 259(5)(b). [ 14 ] Given that the Crown has specifically alleged that the accused was disqualified from driving by virtue of an Order pursuant to section 259(1) of the Code, the Crown must prove that.

There is no direct evidence of a prohibition order pursuant to section 259(1) of the Code being in existence at the relevant time, nor is there any evidence from which the Court could infer the existence of an order being in force at the relevant time. The accused is found not guilty. Released: April 7, 2011 Signed: “Justice A. T. McKay”