Court Information
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
Counsel:
- Mr. Jeffrey Pearson for the Crown
- Ms. Maleeka Mohamed for the accused
Decision
[1]
Background
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) of the Criminal Code.
2Constable Marcoux saw a red Ferrari pull out of a parking lot and travel along Major Mackenzie Drive at a high rate of speed. He paced 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]
Analysis
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 that term. The sole issue at trial is whether the Crown has proved that the breach was an intentional one given Mr. Tsang's evidence that once he received his license back from the Ministry of Transportation (MOT) following the 90 day suspension he thought it was alright for him to drive.
4The offence of failing to comply with a recognizance is a criminal offence requiring proof of an intentional act. R. v. Legere, [1995] OJ No. 152 (CA). Mere carelessness is not sufficient.
5The defence concedes that Mr. Tsang's mistake does not meet the test for officially induced error. Assuming that he did make the inquiry he described at the time he attended the Ministry of Transportation (MOT) office to obtain a new license after his 90 day provincial suspension, his query was only about his license status at that point. He also referred to asking about his license plate status although 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 not to tell the person at the MOT desk that he was on a bail which included a term that prohibited him from driving. The information provided by the desk clerk as to the license was accurate but the clerk provided no information about the bail condition because they were unaware of it.
6Mr. Tsang agreed he was represented by a lawyer for the Toronto charges and the Information shows that the lawyer appeared for him months before this offence date. Knowing there was a need for an inquiry about his bail condition, Mr. Tsang chose not to ask his lawyer for legal advice on that point.
7The 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.
8There'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 not to make an inquiry where he knew that one was necessary. His wilful blindness does not provide a defence and is not a reasonable excuse under s. 145(3). R. v. Smith, 2008 ONCA 101 , [2008] OJ No. 465 (CA)
[9]
Conclusion
I find that the Crown has proved the charge alleged beyond a reasonable doubt.
Released: February 27, 2013
Justice Joseph F. Kenkel