Court File and Parties
Ontario Court of Justice
Court File No. 2111-999-13-0096-00
Between:
Her Majesty the Queen Appellant
— AND —
Vito Lamanna Respondent
Court File No. 2111-999-13-0289-00
And Between:
Her Majesty the Queen Appellant
— AND —
Amanda Jane Respondent
Court File No. 2111-999-13-0118-00
And Between:
Her Majesty the Queen Appellant
— AND —
David Caldwell Respondent
Before: Justice D.A. Harris
Heard on: September 29, 2014
Reasons for Judgment on Appeal released: October 21, 2014
Counsel:
- N. Isak, for the Appellant
- T. Walton, for the Respondent, Vito Lamanna
- No one appearing, for the Respondent, Amanda Jane
- No one appearing, for the Respondent, David Caldwell
Reasons for Judgment on Appeal
Introduction
1These three appeals were heard together for the following reasons.
2All three Respondents were charged with driving while suspended. All three were tried on October 30, 2013 before the same Justice of the Peace. The Respondent Vito Lamanna appeared for his trial and was represented by a licensed paralegal. Neither Respondent Amanda Jane nor Respondent David Caldwell appeared and they were tried in absentia. Their trials took place following that of Mr. Lamanna. In each of the three cases the presiding Justice of the Peace declined to receive into evidence a document tendered by the Appellant pursuant to section 210(7) of the Highway Traffic Act for the purpose of proving that the driver's licence of each Respondent was suspended at the time of the alleged offences. In the case of Mr. Lamanna and that of Mr. Caldwell, she also declined to admit into evidence documents purporting to be their driving records.
3The presiding Justice of the Peace dismissed the charges against each Respondent.
4The Appellant/Crown appeals against each of those decisions.
5While I intend to deal with all three together, it is important to first note the circumstances of each case separately.
Vito Lamanna
6Police Constable Mitchell testified that he observed Mr. Lamanna driving a motor vehicle on January 8, 2013.
7Crown counsel then attempted to introduce a two-page document under the hand of Robert Fleming, Registrar of Motor Vehicles and the seal of the Ministry of Transportation. This was tendered to prove that Mr. Lamanna's driver's licence had been suspended and that this suspension was in effect on January 8, 2013.
8The agent for Mr. Lamanna objected to this on the basis that the second page which purported to be a copy of the Notice of Suspension was not a true copy. Specifically he noted that the bottom line on that page read "Please see reverse side for important information / Veuillez lire les rensignements importants au verso" but that there was no copy of a reverse side.
9The presiding Justice of the Peace relied upon the reasons of Justice of the Peace J. Guthrie in R. v. Kramer, and decided that it was "not a true copy because it is an incomplete copy of the original with not having any backside of that document having been photocopied." She was "persuaded that there is a reasonable doubt that there is something missing" and declined to allow the document to be introduced into evidence.
10Unfortunately, no one thought to make the proffered document a lettered exhibit so that it might be available for review by an appeal court.
11Crown counsel then attempted to introduce Mr. Lamanna's driving record in order to prove that his licence had been suspended.
12The presiding Justice of the Peace relied upon the comments of Tetley J. in R. v. Lupo and ruled that "those particular documents are not going to be accepted by the Court because they deal with prior convictions of this particular defendant and it would be prejudicial to the fair trial interests of the defendant for the Court to accept that before the Court has made a ruling in terms of guilt or innocence."
13Following this, she dismissed the driving while suspended charge against Mr. Lamanna. She did convict him of drive motor vehicle - no currently validated permit. That offence plays no part in this appeal.
14However, during the sentencing proceedings with respect to this latter charge, the presiding Justice of the Peace did receive in evidence a certified copy of Mr. Lamanna's driving record which showed, amongst other things, that Mr. Lamanna's driver's licence had been suspended re unpaid fine on May 24, 2012 and reinstated on January 11, 2013 (three days after the alleged driving while suspended offence).
15Prior to the hearing of the appeal against this decision, the Appellant brought a motion to introduce the two-page document referred to above as fresh evidence. The agent for Mr. Lamanna agreed that this document should have been before me and I directed that the document would in fact be placed before me so that I would be aware of what exactly the presiding Justice of the Peace had refused to receive in evidence.
Amanda Jane
16Ms. Jane did not appear for her trial which proceeded in her absence.
17Police Constable Boyd testified that he observed Ms. Jane driving a motor vehicle on March 19, 2013.
18The presiding Justice of the Peace relied upon her reasoning in the Lamanna case and declined to receive a similar two-page document in evidence in this case.
19A significant difference here was that the document was made an exhibit in order to identify it later.
20The presiding Justice of the Peace dismissed the driving while suspended charge against Ms. Jane. She did convict her of driving a motor vehicle without insurance. That offence plays no part in this appeal.
David Caldwell
21Mr. Caldwell did not appear for his trial which proceeded in his absence.
22Police Constable Williams testified that she observed Mr. Caldwell driving a motor vehicle on January 24, 2013.
23The presiding Justice of the Peace again relied upon her reasoning in the Lamanna case and declined to receive either a similar two-page document or a driving record in evidence in this case.
24The two-page document was not made an exhibit in order to identify it later.
25The presiding Justice of the Peace dismissed the driving while suspended charge against Mr. Caldwell. She did convict him of operate motor vehicle and fail to have insurance card in vehicle, operate motor vehicle without insurance and knowingly use a false insurance card. Those three offences play no part in this appeal.
26The presiding Justice of the Peace did receive in evidence a certified copy of Mr. Caldwell's driving record during the sentencing proceedings. This record indicated that Mr. Caldwell's driver's licence had been suspended re unpaid fine on June 8, 2012 and that the suspension was still in effect as of June 7, 2013.
Law
27Section 210(7) of the Highway Traffic Act states:
(7) A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.
28This requires a court to receive in evidence (1) a copy of any document, and/or (2) any statement containing information from the records required to be kept under the Highway Traffic Act.
29The documents proffered by the Appellant in these three cases purported to include both of these components. The presiding Justice of the Peace however only addressed the former and made no mention of the second component.
30I will deal with both.
31First, however, I will yet again address the issue of what must be proven, and by whom, in a driving while suspended case.
32The Supreme Court of Canada in R. v. Sault Ste. Marie determined that all regulatory offences fell into one of three classifications.
33The Supreme Court of Canada in R. v. MacDougall and the Ontario Court of Appeal in R. v. Miller stated that driving while suspended falls into the classification of a strict liability offence.
34The effect of this was set out in R. v. Montgomery where MacDonnell J. stated that:
Because it is a strict liability offence, the burden on the Crown is discharged upon proof of the actus reus of the offence, namely (i) that the defendant's licence to drive was suspended, and (ii) that while it was suspended, he drove. The Crown does not have to prove knowledge of the suspension, although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act.
35The Crown did prove that each Respondent drove a motor vehicle. The Crown then asked the court to receive in evidence documents which would have proven that the driver's licence of each Respondent had been suspended at the relevant time. Had those documents been received in evidence, the Crown would have discharged its burden. It would have then been open to each Respondent to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed 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 the particular event.
36Each Respondent would have had to prove on a balance of probabilities "that he did not, acting in good faith, through absence, accident, illness or other cause beyond his control, receive the notice". That would then rebut the presumption set out in section 52(2) of the Highway Traffic Act deeming the Respondent to have received the Notice of Suspension.
37That would not, however, have been the end of the matters here.
38It was recognized by both MacDonnell J. in R. v. Montgomery, supra and by the Ontario Court of Appeal in R. v. Miller, supra that "Evidence that the notice of suspension mailed by the Registrar of Motor Vehicles was not received would be an important circumstance to consider in relation to this issue".
39MacDonnell J. goes on to state "However, such evidence would not necessarily discharge the burden on the appellant unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his negligence".
40I am aware of the decision of R. v. Bellomo where Fairgrieve J. concluded that the proper test in driving while suspended cases was whether the court had a reasonable doubt as to whether the defendant was aware of the suspension.
41The reasoning from that case was also adopted by Tetley J. in R. v. Lupo, supra.
42Those two decisions however are contrary to the direction of the Ontario Court of Appeal in R. v. Miller, supra, that the onus would be on each Respondent to prove, on a balance of probabilities that he did not know of his/her suspension and that his/her lack of knowledge was not due to his/her own negligence.
Analysis
43As I just stated, Crown witnesses provided evidence that each Respondent had been operating a motor vehicle.
44Crown counsel then attempted to introduce documentary proof of the suspension of their respective driver's licences pursuant to section 210(7) of the Highway Traffic Act.
45In each case the presiding Justice of the Peace excluded that evidence on the basis that she was not satisfied that the second page of the proposed document was a "true copy" of the original.
46This constituted reversible error. The Crown did not have to prove that in order to have the document received in evidence.
47Section 210(7) provides that a copy of a document shall be received in evidence in all courts if:
(1) It is a copy of a document filed in the Ministry of Transportation under the Highway Traffic Act, and
(2) It purports to be certified by the Registrar of Motor Vehicles under the seal of the Ministry as being a true copy of the original.
48Section 210(7) further provides that the copy of such a document shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy and is proof, in the absence of evidence to the contrary, of the facts contained in the copy.
49The following comments refer to the Lamanna and Jane cases only because I do not have a copy of the documents from the Caldwell case.
50In both cases, the first page of the document was purported to be under the hand of Robert Fleming, Registrar of Motor Vehicles and under the seal of the Ministry of Transportation.
51Each contained the words "I hereby certify from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act that the driver's licence of [each Respondent] was suspended" and that "the said suspension was in effect on" the alleged offence dates.
52Each further certified that a notice of each suspension"a copy of which is annexed" was forwarded by mail to each Respondent at the latest address on the records of the Ministry. He finally certified that "the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation".
53This satisfied all of the prerequisites set out in section 210(7) which did not require Crown counsel to further prove that the attached document was in fact a true copy of the original. It was sufficient if the Registrar certified it to be a true copy.
54Once these prerequisites were met, section 210(7) is mandatory in directing that the copy of the document "shall be received in evidence".
55Any "evidence to the contrary" does not change that fact. Such evidence to the contrary can only affect the use that may be made of the copy after it has been received in evidence by the court.
56I point out here that, in each case, the attached second page was included only to provide a copy of the actual Notice of Suspension that had been sent to each Respondent.
57In each case the first page included statements that each Respondent's driver's licence was suspended as of the date of the alleged offence, and that a notice of the suspension had been sent by mail to each Respondent at the latest address on the records of the Ministry.
58Section 210(7) also mandates that such statements shall be received in evidence if the prerequisites set out above are met, as was the case in all three trials here.
59The first page therefore provided evidence that the driver's licence of each Respondent had been suspended, and that each Respondent had been notified of that fact.
60In each case it also stated the date on which the notice had been sent by mail to both Respondents. In both cases, this had occurred more than seven days before the alleged offence dates. Accordingly the first page also satisfied the provisions of section 52(2) of the Highway Traffic Act with respect to the deemed date of service.
61So, even accepting the reasoning of the presiding Justice of the Peace, the first page should have been received in evidence.
62The second page was unnecessary for the Crown to prove its case against the Respondents. However, for the reasons I have set out above, it too should have been received in evidence in each case.
63Had the proffered documents been accepted in evidence, the Crown would have discharged its burden of proving that both Respondents had driven a motor vehicle while that Respondent's licence to drive was suspended.
64As I stated above, I did not receive a copy of the document which was not received in evidence in the Caldwell case. In the absence of any other evidence, I would have no basis for being satisfied that Mr. Caldwell's driver's licence was suspended at the relevant time. Such other evidence does exist however in the form of his driving record which was received in evidence, albeit during the sentencing phase with respect to another charge.
65The question then is whether that driving record could have been received in evidence in order to prove that Mr. Caldwell's licence was in fact suspended.
66In order to understand what happened in the Caldwell case, however, it is necessary to revisit what happened during the Lamanna trial.
67After having failed to have the one document received in evidence, Crown counsel attempted to introduce Mr. Lamanna's driving record for the purpose of proving that Mr. Lamanna's licence had been suspended.
68The presiding Justice of the Peace refused to accept that document into evidence on the basis that "it would be prejudicial to the fair trial interests of the defendant for the Court to accept that … ".
69In the Caldwell case, Crown counsel stated that he would be relying on documents similar to those rejected in the Lamanna case and the presiding Justice of the Peace indicated that her decision would be the same.
70I know what the documents referred to as driving records were in both cases, and I know what information they contained because the driving records of both were received in evidence during the sentencing phase with respect to the other charges against Mr. Lamanna and Mr. Caldwell.
71The first page in each case contained the statement "I hereby certify that the paper or papers annexed hereto constitute true statements containing information from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act ".
72Each purported to be under the hand of Robert Fleming, Registrar of Motor Vehicles and under the seal of the Ministry of Transportation.
73This satisfies the prerequisites contained in section 210(7) and these documents which consisted of the first page and the attached driving record should have been received in evidence proving"in the absence of evidence to the contrary", the facts contained in them.
74The driving record of Mr. Lamanna indicated that his driver's licence had been suspended re unpaid fine on May 24, 2012 and reinstated on January 11, 2013. It was relevant evidence proving that his driver's licence was suspended on January 8, 2013, the day that he was observed to be driving.
75The driving record of Mr. Caldwell indicated that his driver's licence had been suspended re unpaid fine on June 8, 2012 and that the suspension was still in effect as of June 7, 2013. It was relevant evidence proving that his driver's licence was suspended on January 24, 2013, the day that he was observed to be driving.
76It was an error for the presiding Justice of the Peace to exclude this otherwise admissible evidence on the basis of an incorrect belief that "it would be prejudicial to the fair trial interests of the defendant".
77Any judicial officer is capable of disabusing his or her mind of any prejudicial material and of using the evidence solely for a proper purpose. The presiding Justice of the Peace in this case was a very experienced judicial officer and I have no doubt with respect to her ability to have received a driving record in evidence without any prejudice to Mr. Lamanna or to Mr. Caldwell.
78Reference was made by the presiding Justice of the Peace to R. v. Lupo, supra. The comments made in that case however were not applicable here. In R. v. Lupo, Tetley J. held that the driving record had been tendered in order to prove something that it was incapable of proving. It was in that context that he stated that the receiving of that document was highly prejudicial and ought not to have been permitted.
79That was very different from the cases here where the driving records were being tendered in order to prove an essential element of the Crown's case and in that regard, were of substantial probative value.
Conclusion
80Each appeal is allowed.
81In the case of Vito Lamanna, a new trial is ordered. That will allow him the opportunity to advance any other defences which might have been open to him.
82The situation is different with respect to Amanda Jane and David Caldwell. Neither appeared for trial. Neither elected to advance any defence. Had the Ministry documents been received in evidence, the Crown would have met its burden in each case and findings of guilt would have been warranted and convictions would have been registered. Accordingly, I am substituting findings of guilt and convictions will be registered against Amanda Jane and David Caldwell.
83With respect to each of them, I am imposing the minimum fine, being $1,000 and I am allowing them six months in which to pay the fine plus any costs and surcharges.
84In addition, their driver's licences are suspended for six months consecutive to any other period for which the licence is suspended.
Released: October 21, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris