In the Matter of the Highway Traffic Act R.S.O. 1990, s. 53(1)

Court Information

Court: Ontario Court of Justice Location: Burlington, Ontario Justice: G. Manno, Justice of the Peace

Between: Her Majesty the Queen represented by The Corporation of the City of Burlington Prosecutor

and

Mr. Francesco Alfano Defendant

Trial Information

Trial Held: June 5, 2013 & October 11, 2013 Judgement Rendered: February 28, 2014

Statutes, Rules and Regulations Cited

• Highway Traffic Act, R.S.O. 1990, c. H.8, s. 1(1), s. 46, s. 52(1), s. 52(2), s. 53(1), s. 210(7)
• Provincial Offences Act, R.S.O. 1990, c. P.33
• The Constitution Act, 1982 (Schedule B) of the Canada Act 1982 (U.K.), c. 11

Cases Cited

• R v. Beatty, 2013 ONCJ 686
• R v. Bellomo, [1995] O.J. No. 313
• R v. Catena, [2008] O.J. No. 1806
• R v. Halloran, [2010] O.J. No. 3346
• R v. Miller, [1988] O.J. No. 253
• R v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267
• R v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299
• R v. Summerfield, [2012] O.J. No. 1453
• R v. Vlahos, [2012] O.J. No. 266
• Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 2013 ONSC 1838
• R v. Pierce Fisheries Ltd., [1971] S.C.R. 5

Secondary Sources Noted

• Kastner, N. "Mistake of Law and the Defence of Officially Induced Error" 1985-1986 C.L.Q. 308

Counsel

• M. Greco for the Defendant (Mr. Alfano), hereinafter referred to as 'Counsel'
• R. Cotter for the Prosecution, hereinafter referred to as the 'Crown'

Background

1This is a Part Three offence under the Highway Traffic Act s. 53(1) which specifically states:

"Every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

or to imprisonment for a term of not more than six months, or to both. R.S.O. 1990, c. H.8, s. 53(1); 1997, c. 12, s. 7(1)."

2This charge originates from an Information (# 129358), duly sworn on the 30th day of May, 2012 alleging that the Defendant, Mr. Alfano drove a motor vehicle on a highway on the 18th day of May, 2012, in the City of Burlington, Halton Region, when his license was suspended by operation of the Highway Traffic Act, contrary to section 53(1) of that Act.

3For legal clarity, Section 1(1) of the Highway Traffic Act (hereinafter "HTA") defines "driver's license""highway""Ministry""Motor Vehicle" and "Registrar". In this particular case, none of these definitions or their applicability is at issue.

4Section 52(1) and 52(2) of the HTA merit reference as these sections define how a license holder receives 'notice of suspension'. Section 52(2) is particularly relevant:

"Notice sent by registered mail under clause (1)(a) or by mail under clause (1)(b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice. 2000, c. 26, Sched. O, s. 4."

5This Trial commenced on June 5th, 2013 at the Burlington Provincial Offences Courthouse with the Defendant entering a plea of Not Guilty before me, continued on October 11, 2013 and adjourned to today (February 28, 2014) to consider submitted common law and for judgement.

6Mr. Cotter represented the Crown. The Defendant, (hereinafter referred to as 'the Defendant' or 'Mr. Alfano') who happens to be a registered paralegal with the Law Society, was represented by a fellow registered paralegal, Mr. Greco. Not being local, I was asked to preside in this matter to avoid any apprehension of bias given Mr. Alfano's local standing and frequent appearances, representing other Defendants in these Halton Provincial Offences Act (hereinafter 'POA') courts.

Particulars of the Offence

7On May 18th, 2012, Officer Halliday badge No. 11863 of the Ontario Provincial Police was operating a partially-marked police vehicle and was situated in the parking lot of the Burlington Provincial Offences Court offices having been in Court earlier that day. Based on an anonymous tip, the Officer began to follow a grey 2009 Toyota Matrix vehicle license BDVV44 with heavy tint on the windows located in the adjacent parking lot of the courthouse.

8Not entirely sure of who the occupants of the vehicle were at this stage, the Officer said he followed the said vehicle which exited the parking lot and turned right onto Brant Street in Burlington. The Officer contended he was 50–60 metres behind the subject vehicle but never lost sight of that vehicle.

9Once on the public roadway, the Officer conducted a traffic stop in a private driveway, approached the vehicle in question and requested identifying documents from the driver. Photo ID was provided to the Officer showing an address on Rutherford Ave. in Hamilton. Based on the Officer's investigation he issued a summons charging the driver, Mr. Alfano, with drive while suspended, a Part Three offence under section 53(1) of the Highway Traffic Act. The Defendant's suspension was for unpaid fines.

10To support its case, the Crown tendered an Exhibit 1 – a document from the Ministry of Transportation that confirmed that the Defendant was indeed a suspended driver as at May 18, 2012. This document was presented under the hand and seal of the Ministry of Transportation and dated January 29th, 2013. It appears from the document that notice of this suspension was mailed on February 1, 2012 to the last known address on record for the Defendant, that being 20 Rutherford Ave. in Hamilton.

11Exhibit II inter alia was an application made by the Defendant on July 12, 2012 for an Ontario Driver's Licence confirming an address of 20 Rutherford Ave., Hamilton and attaching a payment of $150.00 as the reinstatement fee required by the Ministry for reinstatement of a Driver's License as prescribed.

Defendant's Position

The Defendant asked the Court to consider the following:

12That even if the Crown established a prima facie case that the actus reus had been committed, the Defendant should be given credit for the fact that he had no knowledge that his license had been suspended. It is a situation where the Defendant bears no fault and as such the Court should find there is reasonable doubt in rendering its verdict (see Bellomo).

13That there was no real reason for the traffic stop and that the Officer over time had unpleasant professional encounters with the Defendant in other unrelated Court matters. Counsel for the Defendant suggested that the Officer stopped Mr. Alfano as retribution for the embarrassment the Officer felt or experienced as a Crown witness in other trials at the hand of Mr. Alfano. Counsel for the Defendant characterized this as an 'illegal search'.

14That Mr. Alfano is a man of character and was under oath giving him no motive to deceive the Court. The Defendant was duty bound as an officer of the court.

15Counsel said that given the finding in R v. Bellomo this Court should conclude that there is reasonable doubt rather than conclude that this an issue where due diligence would apply after finding the actus reus had been proven beyond a reasonable doubt.

16That a finding of guilt would create an absurdity since not only is the Defendant an officer of the court, but to blatantly drive while suspended in front of many officers in a court house parking lot is not consistent with someone who attempts to obfuscate.

17Even if the actus reus were proven beyond a reasonable doubt, then the Defendant was showing continued due diligence in taking care of many outstanding fines in many jurisdictions over the years. At one juncture the Defendant was paying outstanding fines to 7 jurisdictions which had now since been reduced to 3 jurisdictions, those being Newmarket, Burlington and Scarborough. The Defendant admitted to having a shameful record of owing money and had served a 30 day sentence for driving while suspended in March, 2005. He described himself as somewhat disorganized but effective in Court so much so that he has created many 'enemies' within the police force. Counsel postulated that this alone would have made Mr. Alfano careful with his driving habits/behaviour rather than careless. He also admitted having had a large highway 407 invoice to pay and, at one point, drove with an expired validation tag. Despite this 'spotty' record, Mr. Alfano wished the Court to consider that he valued his reputation above all else; that he is a reformed driver and not the man he was some years ago.

18At many junctures during the trial both Mr. Alfano and his Counsel affirmed that they felt it would be an error and an injustice for this Court to treat Mr. Alfano with any higher level of expectation than would be accorded to any other member of the driving public. In other words, this Defendant should not be accorded any special treatment or held to a higher standard just because he is a registered paralegal under the Law Society of Upper Canada and appears in these Courts with some regularity.

19Mr. Alfano denied ever receiving the Notice of Suspension (Trial Exhibit I) which the Ministry recorded as having been delivered to the Rutherford address in Burlington. Instead, Mr. Alfano believed the notice was delivered to his former business address at 1053 Brant St. Because he was not expecting any particular piece of mail, and due to his sporadic visits to the Brant St. address the Defendant was not given his mail until it was too late - that mail he contended contained the Suspension Notice that he never saw or knew about.

20When Mr. Alfano applied for extensions to pay his fines, he would normally apply to the local court offices in writing. Later, he contended that he called one of the clerks of the court to find out whether a Justice of the Peace had granted his application for an extension. His argument was that through an error in communication he was told (by the clerk of the courthouse) that he had been granted an extension and acted accordingly. However, later he surmised that he had been granted an extension on one or more of his applications but not for all of them. Mr. Alfano believed the denial of that application and lack of any subsequent application for an extension to pay caused his license to be suspended without his knowledge.

21The application process to extend one's time to pay outstanding fines appears to be an entirely verbal process between the applicant and the courthouse administrative staff/clerks. Mr. Alfano's experience was as follows. Once an application was made in writing, the court clerks provided that written application and affidavit to the Justice of the Peace who was compelled to either grant the application in writing or to deny in writing with reasons. This was an ex-parte process and normally could occur within a matter of hours or could take a few days. In the event that an application was denied by a particular Justice of the Peace, the applicant could re-apply in writing the very next day to another Justice of the Peace hoping for a different outcome. There was no limit as to the number of times a person could apply. Following that judicial intervention, the client is informed by the courthouse staff by telephone or in person should the applicant return to the courthouse to follow-up on their application. The telephone call or visit to the clerk had to be initiated by the applicant. Clerks while on the telephone with an applicant would convey the result of an application for an extension to pay and if requested, would provide their first name to the applicant. Clerks were not obliged to call or mail any written response to the applicant (on their own initiative) or to notify them that their extension application had been granted or denied. No administrative staff/courtroom clerks were called to the witness stand to give evidence with respect to this process.

22Despite evidence to suggest that the notice of suspension was sent to the Rutherford road address (see Exhibit I), Mr. Alfano denied that this notice was delivered to that address. He argued that this notice was instead delivered to his former business address where his visits were sporadic and unpredictable. However, he did admit that the driver's license he subsequently applied for was delivered to the Rutherford address. He did not provide evidence that he notified the Ministry of any change of address, which, under the Act was the responsibility of the applicant.

The Crown's Position

23The Crown took the position that the document noted as Exhibit I was evidence that the Defendant was indeed a suspended driver when the charging Officer conducted a traffic stop that particular date, time and place. As such, given the totality of the evidence, a conviction against the Defendant should be rendered by this court.

24In brief, the Crown argued that the absurdity principle did not apply nor had it been proven since it is possible for a Defendant to drive while suspended. The fact that Mr. Alfano was a registered paralegal should not have been a consideration since the Defendant himself asked that no higher standard should be accorded to him over any other member of the public. Furthermore, any evidence of the Defendant's character spoke to sentencing and is not a principle that should be considered in a strict liability offence.

25The Crown directed the Court to consider the question, was there a reasonable doubt that of the offence as charged had been committed? The Crown suggested that the actus reus had been established and that all of the elements of the offence were present. The Crown pointed out that Mr. Alfano had been effectively suspended for nine years and the only reason he continued to drive is that he was using an out-of-court process, an administrative process to gain time to pay his fines.

26The Crown believed the application of R v. Bellomo was limited in this case since it contained a different set of facts. For instance in Bellomo, the Defendant had no prior notice that he had been suspended and had provided evidence that he was absent (in Florida) when the notice of suspension was delivered.

27The onus in this case cannot be on the Ministry/Province since Mr. Alfano knew that if any of his extensions were not granted his license would be suspended.

28The Crown rebutted Mr. Alfano's contention that the Officer was bearing a grudge and was in effect 'maliciously' prosecuting or hounding the Defendant. Furthermore, beyond Mr. Alfano's assertion, there was no evidence to corroborate such an allegation nor had the Defendant tabled any application as was his right under the Canadian Charter of Rights and Freedoms (hereinafter the 'Charter') to properly argue such a motion.

29If the Court accepts that the actus reus has been proven beyond a reasonable doubt then considering this is a strict liability offence, the Court is then compelled to consider whether or not the Defendant can show due diligence or mistake of fact on a balance of probabilities. The onus to prove this fact is with the Defendant.

30The Crown pointed out that Mr. Alfano could not provide the name of a clerk he might have spoken to, no documentation that would speak to the matter and did not notify the Ministry of any change in his address, as was his obligation. Mr. Alfano admitted to driving to his old business address to pick up any mail, so the Crown asked, why would Mr. Alfano be driving there? Presumptively, notice is deemed delivered on the seventh day following a mailing—that would have been in the first or second week of February, 2012. There was ample time to deal with this matter since the offence took place some months later in May, 2012.

The Law

31In his decision in Regina v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, (1978), 40 C.C.C. (2d) 353 (S.C.C.), Dickson J. (as he then was) defined strict liability offences as follows:

"Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused 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. This 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. These offences may properly be called offences of strict liability."

32The concept of permitting the defendant an opportunity of avoiding quasi-criminal liability by proving that he/she took all reasonable care, is known as the defense of due diligence. If the defendant establishes this defense, by showing, on a balance of probabilities that he/she committed the offence while either acting on the basis of an honest and reasonable mistake of fact or after taking all reasonable steps to avoid it, he/she is entitled to be acquitted of the offence. In this regard, in Sault Ste. Marie, supra., Dickson J. made the following comments:

"1) The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries [R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5 (S.C.C.)] and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he had done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. ...

"2) In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defense whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defense of reasonable care."

Analysis

33The first matter the Court is compelled to consider is whether or not the actus reus has been proven beyond a reasonable doubt, the Crown bearing the burden of that proof. In this particular case, the document tendered as Exhibit I under the hand and seal of the Ministry demonstrated that Mr. Alfano was indeed a suspended driver on the date, time and place of the Offence as charged. I have also reached this determination with due reference to the notice provisions of the HTA mentioned above. Along with all of the other viva voce and documentary evidence, this Court accepts and finds that the actus reus has been established by the Crown beyond any doubt.

34As this is a strict liability offence, the Court is then compelled to consider whether or not (a) the Defendant believed in a mistaken set of facts or (b) that the Defendant took reasonable steps to avoid driving while suspended. As previously stated this onus belongs to the Defendant with the standard being on a balance of probabilities.

35In R v. Beatty, Justice Harris re-iterated the principles found in Montgomery and then determined by the Ontario Court of Appeal in Miller 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."

But then MacDonnell J. in Montgomery went on to say:

"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."

Interestingly, the decision in Bellomo runs contrary to the earlier ruling by the Ontario Court of Appeal in Miller where it was clearly stated that the onus would be on Mr. Beatty (Defendant) to prove, on a balance of probabilities that he did not know of his suspension and that his lack of knowledge was not due to his own negligence.

36The Court agrees completely with submissions by Counsel that the Defendant should not be held to a higher standard than any other member of the public as an adjunct, the Court should not expect or presume that Mr. Alfano, as a Defendant would behave any differently than any other member of the public despite being an 'officer of the Court'. Any deviance from this approach might not only result in an injustice but would also constitute a breach of judicial ethical code which specifically instructs an arbiter to act 'without fear or favour'. The Principles of Judicial Conduct specifically mandates Justices to act …"without fear of reprisal or influence from any person…"

37Though there is evidence in the form of a statement under oath that the Defendant did not receive notice from the Ministry that he was a suspended driver the Court must consider the notice provisions within the HTA (noted above). Was there any evidence that the Court could rely on that the Defendant, did not, acting in good faith, through 'absence, accident, illness or other cause beyond his or her own control', receive the notice? As stated in R v. Vlajkovic and re-stated in R v. Vlahos, (para. 48), a certified document under the hand and seal from the Ministry of Transportation is, absent proof to the contrary, prime facie proof that the defendant was sent the notice of suspension by registered mail. Delivery is deemed on the 7th day following posting. In this case, there was no evidence to suggest (as there was in Bellomo) that the Defendant was out of the country, nor the subject of any accident, illness or other cause beyond the control of the Defendant. If notice was not received at all, it was due to the failure of the Defendant to pick up his own mail on a more timely basis, or even yet, to change that address with the Ministry as was his obligation and certainly a factor in proving one was acting with of due diligence. Thusly, the Court cannot credit the Defendant with due diligence on the basis he took reasonable steps to avoid the particular event. Additionally, considering that Mr. Alfano was an applicant for extensions to pay many times over a number of years, he must have known that it was his responsibility to call the clerks and ensure the information was accurate at his own peril. Considering Mr. Alfano did not provide notice to the Ministry of his change of address, and that he did not meet any of the excuses set out by the HTA (absence, accident etc.) and given the other factors mentioned above, it is difficult for the Court to reach a conclusion that the Defendant was showing a reasonable amount of effort or due diligence in ensuring his fines were being kept up to date through the extension process.

38Next I considered the question, did the Defendant believe in a mistaken set of facts in this case? Naturally, in Provincial Offences Courts mens rea is not as central a concept unless the charge contains the words 'knowingly', 'intentionally', 'recklessly', 'maliciously', 'fraudulently' etc. Some might build an argument under section 7 of the Charter arguing that fundamental justice requires a person devoid of a guilty mind, even in a mistake of law, ought to be acquitted as of right and not merely compensated by milder punishment (see Kastner pg. 14). However, there is no such motion before this Court. Additionally, strictly speaking the evidence given by the Defendant himself would suggest a 'mistake of fact' as opposed to a 'mistake of law'.

39In the event that the Defendant asks this Court to rely on a mistake of fact, the Court then has to determine is that reasonable? Did the Defendant rely on this erroneous information? Furthermore, did that information come from an administrator, a Ministry official, a justice etc? In this case, Mr. Alfano said that he called a clerk whose first and last name he could not recall to obtain information regarding his extension to pay applications. We have no clear knowledge of when that was, or who he spoke to since these key parts of the application process appeared to have been verbal and not supported by any documentary evidence. The Court would have then appreciated hearing from the administrative clerks, who could have been summoned to the stand to provide evidence regarding the process, whether or not errors are possible, whether or not any decisions are documented and what the court records purport to confirm or deny. For whatever reason, Counsel for the Defence chose not to tender such evidence.

40One point bears special mention regarding the procedure in this Trial. At or near the conclusion of this Trial, I enquired whether or not anyone had issue with me making some inquiries of the clerical staff to better understand the extension to pay process between the court staff and the applicants. Both Counsel and the Crown had agreed that I was welcome to make any enquiries of the clerical staff that was necessary for me to understand the administrative approval/denial process. Though I considered this approach, I decided against asking those questions. Asking those questions would have taken my role outside the accepted boundaries as an independent arbiter to one of investigator. I did not consider that to be prudent. In the final analysis, the calling of an administrator or clerk to the stand to provide viva voce evidence regarding the process was open to both parties. No witnesses or evidence was called in this matter beyond the Officer's evidence and that of the Defendant. One can speculate whether or not such testimony might have changed the course of this trial. However, trials are not about speculation or consideration of evidence that is not present.

41Assuming for a moment that Mr. Alfano's version of events was true, the manner in which decisions were disseminated to applicants who request extensions to pay is very disconcerting to this Court. At the outset, applications are made in writing to the Justice of the Peace and accompanied by affidavit. The Justice of the Peace is required to address the application in writing and give reasons in writing, should the Justice of the Peace deny or approve that extension. It is a mystery as to why the entire process became oral following this step. Mr. Alfano's evidence was that Defendants were obligated to return to the court or call in by telephone to receive the results of their application and the result was given verbally with no paperwork to substantiate the decision. The Ministry of Transportation was not involved at this juncture and would only be involved once the relevant Courthouse staff provided them notice that the Defendant was behind in their payments and had been unsuccessful in obtaining approval on an extension to pay application—which would trigger the mailing of the notice of suspension. The return to documentary evidence seemed to be at the tail end of the process once the Ministry was involved but not before. Can mistakes occur in this process? One can foresee that in any verbal communication mistakes can happen, though it becomes difficult in determining how or who committed those error(s). Anyone ever playing the telephone game would attest to that fact. However, the Defence did not raise this spectre by placing anyone on the stand to speak to the integrity of such a process. At this point, the Court is only speculating based on inference but cannot conclude based on what might have happened in the abstract. For instance, I cannot (with any degree of certainty) give blame to the unnamed clerk for giving Mr. Alfano the wrong information any more than I can blame Mr. Alfano for getting the right information from the clerk, but simply hearing or interpreting it wrongly. In other words, the mistake could have been the result of the Defendant's own negligence, a clerical error or some combination of both.

42In the absence of other evidence, the court is left with only Mr. Alfano's testimony that he telephoned a clerk and was told he had been successful in getting an extension to pay his fine(s) staving off suspension. There are those that might argue that to simply accept that statement would make it possible for other Defendants to assert that they too believed they had an extension and that they had received nothing to imply otherwise in the mail. It is difficult to believe that is what the Legislators had in mind when drafting the relevant provisions under the HTA. This would make it extremely difficult to obtain a conviction with respect to this charge. The onus was on the Defendant to show some form of mistake of fact or due diligence once the actus reus had been proven by the Crown. The outcome of a successfully mounted defence to this charge, (some might prefer call an 'excuse' to the law rather than a defence) would result in a stay of proceedings. A judicial stay is considered a remedy of last resort and there are many examples in the common law that build on the idea that a stay should be used sparingly.

43Though I would like to believe Mr. Alfano's version, that the error was committed by court staff, I cannot reach that conclusion based on his testimony alone. Assuming his characterization of the approval process is correct however, I would respectfully suggest that continued use of a verbal communication system with applicants without the operation of a court audio record and without other documentary evidence, might not be the best way for the POA courts to disseminate decisions to the public. One could imagine that such a system might result in a higher degree of error and/or disputes or misunderstanding with the public. Equally so, because of the lack of documents in this matter, I cannot be certain that the error could be attributed to the Defendant, to the clerks of the court or a combination of both. Another reasonable conclusion one might reach is that Mr. Alfano, being somewhat disorganized with the complexity of his affairs, may have inadvertently allowed his license to lapse. The error could have been the product of his own negligence rather than a mistake of fact or error made by the clerk who communicated with him on that day. He did not take reasonable steps to avoid the suspension in our view. Also if he reasonably believed in a mistaken set of facts, his lack of evidence beyond his own assertion was not enough to convince the Court that the mistake of fact was the result of being 'misled' by the clerical staff of the courts on a balance of probabilities standard.

44As such, and considering the evidence in its totality, the plea, the exhibits and the onus of each of the parties, this Court finds in favour of the Crown and finds Mr. Alfano guilty as charged. The Court will register a conviction with respect to HTA 53(1) and will now entertain submissions with respect to penalty.

Respectfully submitted,

G. Manno Justice of the Peace

Released: February 28, 2014