In the Matter of the Highway Traffic Act, R.S.O. 1990, c. H.8

Between

Her Majesty The Queen prosecutor

and

Daniel Lawend defendant

Court Information

Court: Ontario Court of Justice Location: Brampton, Ontario Judge: Quon J.P.

Trial held: February 10, 2015 Judgment released: April 16, 2015

Charges

1. Section 53(1) H.T.A. – "Driving while driver's licence suspended"
2. Section 36 H.T.A. – "Using driver's licence from another jurisdiction while Ontario driver's licence suspended"
3. Section 7(1)(c)(i) H.T.A. – "Driving while no current validation on number plate"

Counsel

• Prosecutor: G. Hume
• Defendant: D. Lawend, unrepresented

Cases Considered or Referred To

• Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12
• Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 2003 CanLII 41182 (ON CA), 64 O.R. (3d) 417
• R. v. Jorgensen, 1995 CanLII 85 (SCC), 4 S.C.R. 55
• R. v. Key, [2012] S.J. No. 193 (Sask. Prov. Ct.)
• R. v. Boutcher, 2001 NFCA 33, 202 Nfld. & P.E.I.R. 243
• R. v. Cancoil Thermal Corp., 1986 CanLII 154 (ON CA), 27 C.C.C. (3d) 295
• R. v. Miller, 1994 CanLII 10339 (NL SC), 122 Nfld. & P.E.I.R. 256

Statutes and Regulations Cited

• Highway Traffic Act, R.S.O. 1990, c. H.8
• Provincial Offences Act, R.S.O. 1990, c. P.33
• Geneva Convention on Road Traffic, 19 September 1949, 125 U.N.T.S. 3

Reference Material Cited

Paciocco, D.M. and Stuesser, L., The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011).

Exhibits Entered

Exhibit "1" – Certified document dated October 23, 2014, issued by the Office of the Registrar of Motor Vehicles for the Ministry of Transportation indicating that Daniel Lawend had been notified that effective May 30, 2011, his driver's licence had been suspended under s. 46 of the Highway Traffic Act for not paying a fine or fines. The Notice also indicated that Daniel Lawend's driver's licence would remain suspended until all fines are paid and that a reinstatement fee of $150 would have to be paid in order for Daniel Lawend to obtain a licence after the suspension ends (2 pages).

1. INTRODUCTION

1Visitors who come to Ontario from outside Canada, and who do not remain in Ontario for more than three months in any one year, are permitted to operate a motor vehicle on an Ontario highway if they possess a valid driver's licence issued by their home country. But, if the out-of-country visitor intends to visit Ontario for more than three months, then they are required to have both an International Driver's Permit and a valid driver's licence issued to them by their home country if they wish drive in Ontario, but the International Driver's Permit must already be with them when they arrive in Canada and cannot be issued to them after their arrival in Canada. However, if a person from outside Canada moves to Ontario or takes up permanent residence in Ontario, then they are permitted to only use their valid driver's licence or International Driver's Permit issued by their home country to drive a motor vehicle on an Ontario highway for a maximum period of 60 days. After those 60 days have elapsed from when they had moved to or had taken up permanent residence in Ontario, then they have to obtain an Ontario driver's licence issued by Ontario's Ministry of Transportation if they wish to continue driving in Ontario.

2And, where a motorist who has been issued an Ontario driver's licence, has their Ontario licence suspended by virtue of defaulting in the payment of a fine or fines under s. 46 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("H.T.A."), or by an order or direction made under s. 69 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("P.O.A.") in respect to defaulting in the payment of a fine, then according to s. 36 of the H.T.A., they are no longer permitted to operate any motor vehicle on an Ontario highway, nor use a valid driver's licence or International Driver's Permit issued by another jurisdiction to operate a motor vehicle in Ontario, while their Ontario driver's licence is suspended.

3With respect to this proceeding, the defendant, Daniel Lawend, had his Ontario driver's licence suspended by the Ministry of Transportation on May 30, 2011, for a default in payment of a fine. Then, three years later on June 6, 2014, the defendant was observed by a Peel Region police officer operating a motor vehicle on a highway in the City of Brampton while his Ontario driver's licence was still under suspension. He had been stopped by the police officer because the officer had noticed that the validation sticker on the rear plate of the vehicle he had been operating had been expired. When his driver's licence had been requested to be produced to the police officer, the defendant had produced an International Driver's Permit issued by the Nigerian government. After the defendant was investigated by the police officer who conducted that traffic stop, the officer charged the defendant with committing three Highway Traffic Act offences, namely: [1] operating a motor vehicle on a highway when his Ontario driver's licence was suspended, contrary to s. 53(1); [2] using a driver's licence issued by another jurisdiction when his Ontario driver's licence was still under suspension, contrary to s. 36; and [3] for operating a motor vehicle on a highway without a current validation being displayed on the number plate of the vehicle, contrary to s. 7(1)(c)(i).

4In his defence to the first two charges related to his driver's licences and driving on an Ontario highway while suspended, the defendant contends that when he had called the customer service number for the Ministry of Transportation in January 2014, and inquired about his suspended Ontario driver's licence and about whether he could drive in Ontario using his Nigerian International Driver's Permit, he contends that he had been advised by someone during that call that he could use his International Driver's Permit issued by the Federal Republic of Nigeria to operate a motor vehicle in Ontario for a period of six months, as long as he had his Nigerian passport with him, even though his Ontario driver's licence had been under suspension. However, the defendant did not obtain from the person whom he had been speaking to on the telephone, that particular person's name or that person's job title. In addition, the defendant could not provide the actual date when this conversation had occurred, except that it had been sometime in January of 2014, nor could the defendant state specifically what information he had provided to the person on the telephone about his Ontario driver's licence being suspended or the specific question that he had asked of the person on the telephone about being able to use a driver's permit issued by the Nigerian government to drive in Ontario when his Ontario driver's licence had been suspended. However, the defendant contends that the person who had given him this information in the supposed telephone conversation about being able to use his International Driver's Permit to operate a motor vehicle in Ontario had been aware that the defendant had had his Ontario driver's licence suspended.

5Further to his defence, the defendant submits that he should be able to rely on the information provided to him by someone in the government as being correct and reliable. And, that because of this specific information given to him by that person on the customer service line that he was legally permitted to use his International Driver's Permit to operate a motor vehicle in Ontario, despite having his Ontario driver's licence suspended, he also submits that he should not be found guilty of the offence of driving while under suspension or guilty of the offence of using a driver's licence issued by another jurisdiction while his Ontario driver's licence was suspended, since he believed that he could lawfully drive in Ontario with his Nigerian International Driver's Permit while his Ontario driver's licence had been under suspension. In other words, the defendant is seeking a judicial stay of those two charges related to driving on an Ontario highway using a driver's licence from another jurisdiction and while his Ontario driver's licence was suspended, due to an "officially induced error of law".

6Therefore, the issues that have to be resolved in this matter are in respect to whether the defendant fell within any exemptions to the legal requirement of having to obtain, or of having, a valid Ontario driver's licence issued under s. 32 of the H.T.A. before being legally permitted to operate a motor vehicle on an Ontario highway; whether the out-of-court statement relied on by the defendant for his defence of officially induced error of law is admissible for the fact that it had been said, but not for the truth of its contents; as well as, whether the defendant had met his burden of proving the defence of officially induced error on a balance of probabilities, to justify a stay of the two charges laid under s. 53(1) and 36 of the H.T.A., respectively.

7The trial of the defendant's three charges was held on February 10, 2015. The defendant represented himself at the trial. At the arraignment of the three charges, the defendant entered not guilty pleas for the first two counts of driving while under suspension and of using a driver's licence from another jurisdiction when his Ontario driver's licence was under suspension, and a guilty plea on the third count of driving with no current validation of the vehicle permit on the number plate. Only two witnesses testified in the trial: (1) Officer Orgill, the investigating officer, and (2) the defendant. After closing submissions were made, judgment was reserved and the matter adjourned for judgment. These, therefore, are the written reasons for judgment:

2. THE CHARGES

8The defendant has been charged under a Part III information that was sworn on June 25, 2014, with committing the following three offences:

Daniel Lawend, of [residential address removed for privacy], Brampton, Ontario, on or about the 6th day of June, 2014 at the City of Brampton in the Central West Region did commit the offence of:

(1) at approximately 1:10 p.m. did unlawfully operate a motor vehicle licence number BSBL417 on a highway, namely on Hurontario Street, when his driver's licence was suspended by operation of the Highway Traffic Act contrary to the Highway Traffic Act Section 53

(2) AND FURTHER THAT Daniel Lawend on or about the 6th day of June, 2014 at the City of Brampton in the Central West Region did unlawfully drive a motor vehicle on Hurontario Street, at approximately 1:10 p.m., under a driver's licence issued by another jurisdiction while suspended in Ontario by operation of the Highway Traffic Act contrary to the Highway Traffic Act Section 36

(3) AND FURTHER THAT Daniel Lawend on or about the 6th day of June, 2014 at the City of Brampton in the Central West Region did unlawfully drive a motor vehicle on a highway, to wit: Hurontario Street, at approximately 1:10 p.m., when the number plate on the said vehicle displayed no current validation of the permit contrary to the Highway Traffic Act Section 7(1)(c)(i)

3. SUMMARY OF TESTIMONY

(A) Summary of the Testimony Of Officer Orgill

9Officer Orgill testified that at 1:10 p.m. on June 6, 2014, he had been driving on Hurontario Street north of Ray Lawson Boulevard when he observed a silver-coloured four-door Honda motor vehicle travelling northbound in the center lane with the Ontario plate number BSBK417. In addition, he said he had observed a "MAY 2014" validation sticker on the rear licence plate. He then said he had checked the licence plate using his cruiser's computer and determined that the plate had expired on May 12, 2014.

10Because the licence plate had been expired, Officer Orgill said he had stopped the Honda motor vehicle. He also said he did not lose sight of that vehicle. In addition, he said that the driver of that Honda motor vehicle was the lone occupant in the vehicle. Orgill then said he had demanded from the driver, his driver's licence, ownership documents for the vehicle, and proof of insurance for that vehicle. In response to his demand for documents, Officer Orgill said that the driver had produced a photo-type Republic of Nigeria driver's licence. In addition, Orgill said the driver of the Honda motor vehicle had also verbally identified himself as "Daniel Lawend", with an address located in Brampton, Ontario, as well as providing his date of birth. Then, Officer Orgill said he was also able to locate on the MTO database an Ontario driver's licence for the driver he had stopped. Moreover, Officer Orgill said he had also observed and concluded that the photo for that Ontario driver's licence he found on the MTO database matched the driver he had stopped and that they were one and the same person. Furthermore, Officer Orgill said the Ontario driver's licence that had been issued to the defendant had been a class "G" licence.

(B) Summary Of The Defendant's Testimony

11The defendant testified that the licence plate on the motor vehicle he had been driving had been expired, but that he had been driving his brother-in-law's motor vehicle.

12In addition, the defendant said that when the police officer had asked for his driver's licence he had given his Nigerian International Driver's Permit to the officer.

13The defendant also said that in January of 2014 he had called the customer service number of the MTO (Ministry of Transportation of Ontario) and had been informed by the person he had been speaking to on the telephone, that as long as he had his Nigerian passport with him he could drive with his Nigerian International Driver's Permit for six months.

14Moreover, the defendant said that he should be able to rely on government information and that he had trusted this information to be correct.

15However, when asked, the defendant had been unable to provide or state fully what he had exactly said or what he had informed the person he had been speaking to on the telephone about his Ontario driver's licence being suspended, or the actual date he had telephoned the MTO customer service number, or the name of the person he had been speaking to, or what was the job title of the person he had been speaking to on the telephone that had given him the information that he could drive with his Nigerian International Driver's Permit even though his Ontario driver's licence had been suspended. Instead, the defendant said that the person he had been speaking to had been aware or had the knowledge that his Ontario driver's licence had been suspended when the person on the telephone had informed the defendant about being able to still use his Nigerian International Driver's Permit to operate a motor vehicle in Ontario. Moreover, the defendant explained that the person he had been speaking to on the telephone would not give their name to the defendant and had informed the defendant that the defendant did not need that person's name.

16Furthermore, the defendant in trying to establish that government people make mistakes or errors, said that on the first trial date he had sent his friend in his place to apply for an adjournment, the date that had been given to his friend had been the wrong day, and that the defendant had only learned about the present trial date yesterday, and as an inference, suggests that this is evidence that an error can be made by a government person which a member of the public had relied on to support that argument that the defendant should be able to rely on government information. However, it should also be noted that the present trial had been scheduled for an ex parte trial, since the prosecution had applied for an adjournment of the trial date that had been given to the defendant's friend, which had been granted and rescheduled to another date and in which the defendant had not appeared on the date to hear the adjournment application, even though the defendant had been sent the notice of application for an adjournment of the original trial date to an address that had been provided by the defendant.

17The defendant also said that the unpaid fine for which his Ontario driver's licence had been suspended on, had been reduced recently from $5000 down to $2500 by a Toronto court, and that he had also been given one year to pay the reduced fine. The defendant also said that he had been informed by the judicial officer who had reduced his fine that he could not drive until his fines were paid off. Furthermore, the defendant said that he had had a difficult time in paying off his outstanding fines because he had being having difficulty finding or in obtaining full-time employment.

4. APPLICABLE AND RELEVANT LAW

18First of all, s. 31 of H.T.A. specifically indicates that driving is a privilege and that in order to protect the public, the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely:

Driving a privilege

31. The purpose of this Part is to protect the public by ensuring that,

(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and

(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions.

19As for his first charge, the defendant has been charged with driving a motor vehicle on a highway while his Ontario driver's licence had been suspended by operation of the Highway Traffic Act, which is contrary to s. 53(1) of the H.T.A.:

Driving while driver's licence suspended

53(1) 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.

Subsequent offence

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1)(b).

Licence suspended

(3) The driver's licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto.

20And, for the second of the defendant's charges, he had been charged with contravening s. 36 of the H.T.A., which prohibits any individual in which their valid Ontario driver's licence is under suspension from using another valid driver's licence or permit issued by another jurisdiction to drive a motor vehicle in Ontario, while their Ontario licence is under suspension:

Driving prohibited while licence suspended

36. A person whose driver's licence or privilege to drive a motor vehicle in Ontario has been suspended shall not drive a motor vehicle or street car in Ontario under a driver's licence or permit issued by any other jurisdiction during the suspension.

21In addition, s. 32(1) of the H.T.A. provides that only individuals who hold a valid driver's licence issued to them under the provisions of the H.T.A. are permitted to drive a motor vehicle on a highway in Ontario:

Driver's licence

32(1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver's licence issued to him or her under this Act.

22Furthermore, s. 32(5)(b)(ii) of the H.T.A. permits the Minister of Transportation to suspend an individual's Ontario driver's licence if the holder of that licence fails to meet the prescribed requirements or conditions authorized by the H.T.A. or its regulations in respect to that licence:

Issuance of driver's licence, endorsements

32(5) The Minister may require an applicant for a driver's licence or an endorsement or a person who holds a driver's licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,

(a) in the case of an applicant for a driver's licence,

(i) issue the driver's licence of the class and subject to the conditions authorized by the regulations that, in the opinion of the Minister, are justified by the results of the examinations and other prescribed requirements, or

(ii) where the applicant fails to submit to or to successfully complete the examinations or fails to meet the other prescribed requirements, refuse to issue a driver's licence to the applicant;

(b) in the case of a person who holds a driver's licence,

(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver's licence held by the person, in accordance with the results of the examinations and other prescribed requirements, or

(ii) where the person fails to submit to or to successfully complete the examinations or fails to meet the other prescribed requirements, impose the conditions authorized by the regulations, remove any endorsements, suspend or cancel the driver's licence held by the person or change the class or classes of driver's licence held by the person;

(c) in the case of a person who holds a driver's licence and who is an applicant for an endorsement,

(i) grant the endorsements authorized by the regulations that, in the opinion of the Minister, are justified by the results of the examinations and other prescribed requirements, or

(ii) where the person fails to submit to or to successfully complete the examinations or fails to meet the other prescribed requirements, refuse to grant the endorsements applied for.

23Moreover, s. 46 of the H.T.A. provides the basis for the Ministry of Transportation to suspend a motorist's Ontario driver's licence when they do not pay their fine or fines which have been imposed for a conviction under the H.T.A. and its regulations, or for a conviction under statutes that are listed in the Schedule, such as the Compulsory Automobile Insurance Act:

Defaulted fine

46(1) This section applies if a fine is imposed on conviction for an offence and the offence is an offence,

(a) under this Act or the regulations;

(b) under any other Act listed in the Schedule to this section or under the regulations made under such an Act;

(c) under clause 17(1)(a) or subsection 24(1) of the Fish and Wildlife Conservation Act, 1997;

(d) under subsection 32(1) of the Liquor Licence Act; or

(e) that was committed with a motor vehicle under section 249, 249.1, 249.2, 249.3, 249.4, 252, 253, 254, 255 or 259 of the Criminal Code (Canada).

Order or direction

(2) If the payment of a fine imposed on conviction for an offence is in default, an order or direction may be made under section 69 of the Provincial Offences Act directing that the convicted person's driver's licence be suspended and that no driver's licence be issued to him or her until the fine is paid.

Suspension by Registrar

(3) On being informed of an outstanding order or direction referred to in subsection (2), the Registrar shall suspend the person's driver's licence if it has not already been suspended under another order or direction referred to in subsection (2).

Reinstatement

(4) On being informed that the fine and any applicable administrative fee for reinstatement of the person's driver's licence have been paid, the Registrar shall reinstate the licence, unless he or she has also been informed that,

(a) another order or direction referred to in subsection (2) is outstanding;

(b) the licence is suspended under any other order or direction or under another statute;

(c) interest charged or a penalty imposed under subsection 5(2) has not been paid; or

(d) an applicable prescribed administrative fee for handling a dishonoured cheque has not been paid.

Regulations

(5) The Lieutenant Governor in Council may make regulations prescribing forms and procedures and respecting any matter considered necessary or advisable to carry out effectively the intent and purpose of this section.

SCHEDULE

Compulsory Automobile Insurance Act Dangerous Goods Transportation Act Motorized Snow Vehicles Act Off-Road Vehicles Act Public Vehicles Act

24In addition, in the situation where an individual has had their Ontario driver's licence suspended, then according to s. 32(7) of the H.T.A., it is not deemed to be legally valid for purposes of s. 32(1) until the prescribed administrative fee for its reinstatement has been paid:

Contingent validity

32(7) Where a driver's licence issued under subsection (5) has been suspended, it is not valid for purposes of subsection (1) until the prescribed administrative fee for its reinstatement has been paid.

25Furthermore, s. 34(1)(b) of the H.T.A. provides for an exception to the licensing requirement under s. 32 for visitors or non-residents in Ontario, who are from another country and who wish to drive a motor vehicle in Ontario. In particular, these visitors or non-permanent residents from another country are not required to obtain or have a valid Ontario driver's licence to drive on an Ontario highway as required by the licensing requirement of s. 32 and the regulations passed under that section in two situations: First, if the out-of-country visitor or non-permanent resident is at least sixteen years of age and the holder of a valid International Driver's Permit issued by their home country, then they are not required to obtain an Ontario driver's licence before they are legally permitted to drive in Ontario, and may use their valid International Driver's Permit issued by their home country in conjunction with their valid driver's licence issued by their home country to drive in Ontario. Second, if the out-of-country visitor or non-permanent resident is at least sixteen years of age and has not resided in Ontario for more than three months in any one year, and has a valid driver's licence issued by their home country where they have complied with the law of the country in which he or she resides as to the licensing of drivers of motor vehicles, then they are also not required to obtain an Ontario driver's licence before they are legally permitted to drive in Ontario, and may use their valid driver's licence issued by their home country to drive in Ontario:

Exemption as to non-residents, licensing requirements

34(1) Section 32 and any regulation made thereunder do not apply to any person who is,

(a) resident of any other province of Canada, who is at least sixteen years of age and has complied with the law of the province in which he or she resides as to the drivers of motor vehicles; or

(b) a resident of any other country or state,

(i) who is at least sixteen years of age and is the holder of a valid International Driver's Permit, or

(ii) who is at least sixteen years of age and has not resided in Ontario for more than three months in any one year and has complied with the law of the country or state in which he or she resides as to the licensing of drivers of motor vehicles.

26And, in respect to the out-of-country visitor's ability to use their valid driver's license or their International Driver's Permit issued by their home country to legally drive a motor vehicle in Ontario or in Canada, that legal authorization is found in article 24 of the 1949 Geneva Convention on Road Traffic, in which Canada became a contracting party to the convention on December 23, 1965. However, it is noteworthy in respect to the defendant's Nigerian International Driver's Permit that the Federal Republic of Nigeria did not become a signatory to the 1949 Geneva Convention on Road Traffic until February 3, 2011, just a few months before the defendant had his Ontario driver's licence suspended on May 30, 2011. Moreover, an International Driver's Permit is an identity document that allows the holder to drive a private motor vehicle in any country, such as Canada, that recognizes these International Driver's Permits. To be valid, the International Driver's Permit must be accompanied by a valid driving licence issued by the holder's home country:

Article 24

1. Each Contracting State shall allow any driver admitted to its territory who fulfils the conditions which are set out in Annex 8 and who holds a valid driving permit issued to him, after he has given proof of his competence, by the competent authority of another Contracting State or subdivision thereof, or by an Association duly empowered by such authority, to drive on its roads without further examination motor vehicles of the category or categories defined in Annexes 9 and 10 for which the permit has been issued.

2. A Contracting State may however require that any driver admitted to its territory shall carry an international driving permit conforming to the model contained in Annex 10, especially in the case of a driver coming from a country where a domestic driving permit is not required or where the domestic permit issued to him does not conform to the model contained in Annex 9.

3. The international driving permit shall, after the driver has given proof of his competence, be delivered by the competent authority of a Contracting State or subdivision thereof, or by a duly authorised Association, and sealed or stamped by such authority or Association. The holder shall be entitled to drive in all Contracting States without further examination motor vehicles coming within the categories for which the permit has been issued.

4. The right to use the domestic as well as the international driving permit may be refused if it is evident that the conditions of issue are no longer fulfilled.

5. A Contracting State or a subdivision thereof may withdraw from the driver the right to use either of the abovementioned permits only if the driver has committed a driving offence of such a nature as would entail the forfeiture of his driving permit under the legislation and regulations of that Contracting State. In such an event, the Contracting State or subdivision thereof withdrawing the use of the permit may withdraw and retain the permit until the period of the withdrawal of use expires or until the holder leaves the territory of that Contracting State, whichever is the earlier, and may record such withdrawal of use on the permit and communicate the name and address of the driver to the authority which issued the permit.

6. During a period of five years beginning with the entry into force of this Convention, any driver admitted to international traffic under the provisions of the International Convention relative to Motor Traffic signed at Paris on 24 April 1926, or of the Convention on the Regulation of Inter-American Automotive Traffic opened for signature at Washington on 15 December 1943, and holding the documents required thereunder, shall be considered as fulfilling the requirements of this Article.

27However, under s. 34(2) of the H.T.A., in the situation where an individual from another country moves to or takes up permanent residence in Ontario, then that individual can only use their driver's licence or International Driver's Permit issued by their home country to drive in Ontario for a maximum period of 60 days after moving to or becoming a permanent resident of Ontario. After which, the licensing requirement set out in s. 32 of the H.T.A. would apply to that individual, which would require that an Ontario driver's licence be obtained by that individual before that individual can continue driving on an Ontario highway:

Exemption of new residents

34(2) Section 32 and any regulation made thereunder do not apply to a person for sixty days after he or she has become a resident of Ontario if during such period he or she holds a subsisting driver's licence in accordance with the laws of the province, country or state of which he or she was a resident immediately before becoming a resident of Ontario.

28In addition, the fine or penalty for an individual who is convicted of committing an offence under the H.T.A. or its regulations is a minimum fine of $60 to a maximum fine of $500, which is the general penalty set out in s. 214(1) of the H.T.A., unless there is a specific penalty or fine set out in the H.T.A. for the contravention in question:

General penalty

214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.

5. ISSUES

29The following are issues that have arisen in the trial, which need to be resolved:

(1) Did the defendant come within any exemptions under the H.T.A. that would have permitted him to drive a motor vehicle on an Ontario highway using an International Driver's Permit issued by the Nigerian government and that would also exempt him from the requirement of having to obtain, or of having, a valid Ontario driver's licence issued under s. 32 of the H.T.A. before being permitted to operate a motor vehicle on an Ontario highway?

(2) Has the defendant met his burden of proving the defence of officially induced error of law on a balance of probabilities, which would justify a stay of the charges under s. 53(1) and s. 36 of the H.T.A.?

(3) Is the out-of-court statement supposedly made by the person on the telephone to the defendant admissible for the purpose that it had been actually said and not for the purpose that it is being offered for the truth of its contents?

6. ANALYSIS

(A) IN WHAT CIRCUMSTANCES IS THE DEFENDANT LEGALLY PERMITTED TO OPERATE A MOTOR VEHICLE ON AN ONTARIO HIGHWAY USING AN INTERNATIONAL DRIVER'S PERMIT ISSUED BY THE NIGERIAN GOVERNMENT?

30Before determining whether the defendant has met his burden of proving the defence of officially induced error on a balance of probabilities, it will have to be first determined under what circumstances, or under what provisions, of the H.T.A. and its regulations that an individual can legally operate a motor vehicle in Ontario using an International Driver's Permit.

31In addition, there is another issue that has to be resolved, which concerns the nature of the defendant's testimony in respect to what someone had supposedly stated or told the defendant over the telephone, which was then repeated in court by the defendant in his testimony. Specifically, what the person on the telephone supposedly stated to the defendant that he could drive with his Nigerian International Driver's Permit when his Ontario licence had been under suspension is an out-of-court statement being repeated by the defendant, who is not the maker of that out-of-court statement. As such, the use of this out-of-court statement would offend the hearsay rule where the out-of-court statement is being offered for the truth of its contents, but not if the out-of-court statement is not being offered for its truth but for the fact that it had been said, then it may be admitted if it does not infringe any other evidence principle, rule, or policy. In other words, if the out-of-court statement made by someone to the defendant on the telephone, supposedly from the Ministry of Transportation's customer service line, is being offered by the defendant for its truth then it would not be admissible, but if it is being used for the fact that it had been said, so as to cause the defendant to drive a motor vehicle on June 6, 2014, in the City of Brampton, despite having his Ontario driver's licence suspended, then it would be admissible for the purpose that it had been said, so long as it does not offend any other evidence principle, rule, or policy.

32But, before deciding whether the statement in question would be admissible for the purpose that the statement had been actually said to the defendant, it would be expedient first of all, and for only the purpose of resolving whether the defendant has met his burden in proving the defence of officially induced error of law, to treat the out-of-court statement supposedly made to the defendant as if it had actually been made to the defendant.

In What Circumstances Is the Defendant Legally Permitted to Operate a Motor Vehicle on an Ontario Highway Using an International Driver's Permit Issued by the Nigerian Government?

33For out-of-country visitors, they are legally permitted to legally drive a motor vehicle on an Ontario highway using their International Driver's Permit in conjunction with their valid driver's licence issued by their home country for as long as they are only visitors or non-residents to Ontario. However, by virtue of s. 34(2) of the H.T.A., once the out-of-country individual moves to or permanently takes up residence in Ontario then they are only legally permitted to use their International Driver's Permit in conjunction with their valid driver's licence issued by their home country for a maximum period of 60 days after the date on which they actually moved to or taken up permanent residence in Ontario. And, after 60 days of moving to or taking up permanent residence in Ontario, then the new permanent resident to Ontario has to legally obtain a valid Ontario driver's licence issued under s. 32 of the H.T.A., if they wish to continue driving in Ontario.

34Ergo, since the defendant had a validly issued Ontario driver's licence, which had been suspended on May 30, 2011, and the defendant's charges relate to being observed operating a motor vehicle on an Ontario highway on June 6, 2014, which is more than three years after the defendant's Ontario licence had been suspended; and, as there is no evidence that the defendant was still an actual visitor from another country or had just moved to or taken up permanent residence in Ontario less than 60 days before June 6, 2014, then it is reasonable and logical to infer that the defendant had moved to or had taken up permanent residence in Ontario, since at least May 30, 2011. Moreover, before someone can be found to be in default for a payment of a fine, there would have to have been a charge and then time to deal with the charge before a conviction is entered on the charge, which naturally would be some time before the defendant's driver's license had actually been suspended on May 30, 2011.

35As such, there is no evidence that on June 6, 2014, when the defendant had been stopped, investigated, and had provided his Nigerian International Driver's Permit to Officer Orgill, that the defendant would be specifically exempt under s. 32 of the H.T.A. from obtaining an Ontario driver's license to drive in Ontario and that he would be permitted to use his valid Nigerian-issued International Driver's Permit in conjunction with his valid Nigerian-issued driver's licence to operate a motor vehicle in Ontario by virtue of s. 34(1)(b) as a visitor from outside Canada who is only visiting Ontario and has not taken up permanent residency in Ontario, or by virtue of s. 34(2) for having only recently moved to or taking up permanent residence in Ontario on a date that had been less than 60 days prior to June 6, 2014.

36The evidence, on the other hand, would indicate that the defendant has resided in Ontario since at least May 30, 2011 (the date his Ontario driver's licence was suspended), which is for a period of at least three years, and that he had being having difficulty in obtaining full-time employment in order to pay off his fines, which would indicate that the defendant was not a visitor to Ontario but a permanent resident of Ontario, which would have then have legally obligated the defendant to obtain an Ontario driver's licence issued under s. 32 of the Ontario H.T.A. in order to drive in Ontario, since the three year period is more than the 60 day exemption period allowed to drive in Ontario using their International Driver's Permit under s. 34(2) when an individual from another country has moved to or taken up permanent residency in Ontario. More important, the use of an International Driver's Permit from another country to operate a motor vehicle on an Ontario highway only applies to people without an Ontario driver's licence and who are not legally obligated or required under the Highway Traffic Act to obtain an Ontario driver's licence.

37Correspondingly, an individual from outside Canada who moves to or takes up permanent residence in Ontario can only use their International Driver's Permit or licence issued by their home country for up to 60 days after moving to or becoming a permanent resident of Ontario under the exception set out in s. 34(2), after which, the licensing requirement under s. 32 of the H.T.A. would apply to the individual and would require that individual obtain, or have, an Ontario driver's licence if they wish to continue driving in Ontario.

38Accordingly, based on the evidence, the defendant did not fall within the exemptions to s. 32 of the H.T.A., that would have permitted the defendant to legally operate a motor vehicle on a highway in Ontario using his valid Nigerian International Driver's Permit. In particular, the defendant was not an out-of-country visitor to Ontario, nor was the defendant an individual who had just moved to Ontario from another country to take up permanent residence in Ontario and that he had been only permanently residing in Ontario for less than 60 days prior to the events of June 6, 2014, the date the defendant had been stopped by Officer Orgill.

(B) THE DEFENCE OF OFFICIALLY INDUCED ERROR OF LAW

39In his defence to the two charges of driving while under suspension and for using a driver's licence issued by another jurisdiction while his Ontario driver's licence was under suspension, the defendant contends that someone he had talked to by telephone on the Ministry of Transportation's customer service line had informed him that he could drive with his Nigerian International Driver's Permit, even though his Ontario driver's licence had been suspended. Furthermore, if the defendant meets his burden of proving the defence of officially induced error of law on a balance of probabilities, then the two charges laid against the defendant of driving while under suspension and using a driver's licence from another jurisdiction while his Ontario driver's licence had been suspended will be judicially stayed.

40However, when asked, the defendant had testified that he had been unable to name the person he spoke to on the telephone, when that telephone call had been specifically made, the job title of the person he had spoken to who had advised him that he could drive with his Nigerian International Driver's Permit when his Ontario driver's licence was under suspension, and the context or nature of the questions and information he had provided to the person on the telephone about his Ontario driver's licence being under suspension, except that the person he had been talking to on the telephone had been aware his Ontario driver's licence had been suspended. The defendant further argued that he should able to rely on any information given to him by a person from the government as being correct.

41Although the defendant believes he had been lawfully permitted to drive in Ontario using his Nigerian International Driver's Permit, despite his Ontario driver's licence being suspended, a mistake of law is not an excuse or a defence to committing the prohibited act of driving while under suspension or using a driver's licence from another jurisdiction to drive in Ontario while his Ontario licence was under suspension. However, the Supreme Court of Canada in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, has recognized a limited exception to the legal principle that ignorance of the law is not an excuse in the circumstances where an accused can establish the defence of officially induced error of law on a balance of probabilities.

42In respect to the defendant's mistake of law, the defendant claims that he had been informed in January of 2014 by someone that he had been speaking to on the Ministry of Transportation's customer service line that the defendant was permitted to use his Nigerian International Driver's Permit to legally drive in Ontario for up to six months, as long as he carried his Nigerian passport with him, even though his Ontario driver's licence was suspended.

43Consequently, the defence or excuse of officially induced error must be considered and understood in light of the common law rule that a mistake of law does not excuse or afford a defence to the commission of an offence. This common law principle that ignorance of the law is not a defence is also specifically set out in s. 81 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which governs regulatory trials or proceedings in Ontario:

Ignorance of the law by a person who commits an offence is not an excuse for committing the offence

44However, in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, Lamer C.J. had held in his minority opinion at paras. 25 and 26, that because of the complexity of contemporary regulation there would be justification for recognizing the defence of officially induced error of law, but only as a limited exception to the rule that ignorance of the law does not excuse:

Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.

As complexity of regulation is linked to the justification for this excuse, it is predictable that it will arise most often in the realm of regulatory offences. Nonetheless, this excuse is equally valid for "true crimes" with a full mens rea component. As the involvement of the state in our day to day lives expands, and the number of officials from whom advice can potentially be sought increases, the chance that an official may give advice about an enactment which would not be classified as "regulatory" multiplies. Officially induced error is distinct from a defence of due diligence, and there is no reason to confine it to the regulatory offence context, though it is obvious that for certain crimes, such as those involving moral turpitude, the chances of success of such an excuse will be nearly nil.

45Moreover, in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, at paras. 20 to 27, LeBel J., writing for the Supreme Court, had to consider the accused's reliance on the actions or advice of government officials in which the accused had been convicted under Quebec's Highway Safety Code, and acknowledged that the Supreme Court had never fully accepted the defence of officially induced error of law, since ignorance of the law is not accepted in criminal law as a means to erase or mitigate criminal liability. However, in reviewing the law in respect to this defence, LeBel J. held that the defence is available to those who had reasonably relied on an erroneous legal opinion or advice from an official responsible for the enforcement or administration of a particular law, which would address the injustice of the state with one hand approving of conduct that it prosecuted as illegal with the other hand, and that the actions of government officials would be akin to the notion of entrapment in which the remedy of a stay of proceedings, instead of an acquittal, would be the remedy if the defence of officially induced error is made out by the defendant on a balance of probabilities. However, LeBel J. emphasized that the defence of officially induced error of law would be a fairly limited defence, in which it would be used as an exception to the general principle that ignorance of the law is not an excuse, and that when using the framework of analysis set out by Lamer C.J. in R. v. Jorgensen, that it would not be sufficient to conduct a purely subjective analysis of the reasonableness of the information provided by the government official, but that it had to be considered from the perspective of a reasonable person in a situation similar to that of the accused:

Because the respondent company argues that it was misled by erroneous information obtained from an SAAQ official regarding the procedure for paying the fees relating to the registration of its vehicle, we must now consider the nature and availability of the defence of officially induced error. This Court has never clearly accepted this defence, although several decisions by Canadian courts have recognized it to be relevant and legitimate.

First of all, to place the nature and limits of this defence in the proper perspective, it should be noted that ignorance of the law is not accepted in Canadian criminal law as a means to erase or mitigate criminal liability, despite occasional criticism of the inflexibility of this rule (D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 322-31). Section 19 of the Criminal Code, R.S.C. 1985, c. C-46, states that ignorance of the law is not an excuse for committing an offence. Pursuant to art. 60 C.P.P., this principle applies to regulatory offences created by Quebec legislation. As a result of art. 60, the rules and principles of Canadian criminal law relating to the definition and conduct of available defences against criminal charges apply in Quebec penal law (G. Létourneau and P. Robert, Code de procédure pénale du Québec annoté (6th ed. 2004), at pp. 8-9 and 88).

This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356; Pontes). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in Jorgensen (R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55), by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed.

In that case, which involved a charge of selling obscene material, Lamer C.J. carefully reviewed the development of this defence by the courts. He pointed out that the defence had surfaced gradually in criminal law and had been applied by trial and appeal courts to both crimes and regulatory offences (Jorgensen, at paras. 12-24). He noted that the judges of this Court, including Ritchie J. in R. v. MacDougall, 1982 CanLII 212 (SCC), [1982] 2 S.C.R. 605, at p. 613, had at times appeared to acknowledge the appropriateness of such a defence (Jorgensen, at para. 17). Later, Gonthier J., too, discussed the framework and nature of the defence of officially induced error in his dissenting reasons in Pontes, at p. 88 (Jorgensen, at para. 23).

In Lamer C.J.'s view, this defence constituted a limited but necessary exception to the rule that ignorance of the law cannot excuse the commission of a criminal offence:

Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.

(Jorgensen, at para. 25)

Lamer C.J. equated this defence with an excuse that has an effect similar to entrapment. The wrongfulness of the act is established. However, because of the circumstances leading up to the act, the person who committed it is not held liable for the act in criminal law. The accused is thus entitled to a stay of proceedings rather than an acquittal (Jorgensen, at para. 37).

After his analysis of the case law, Lamer C.J. defined the constituent elements of the defence and the conditions under which it will be available. In his view, the accused must prove six elements:

(1) that an error of law or of mixed law and fact was made;

(2) that the person who committed the act considered the legal consequences of his or her actions;

(3) that the advice obtained came from an appropriate official;

(4) that the advice was reasonable;

(5) that the advice was erroneous; and

(6) that the person relied on the advice in committing the act.

(Jorgensen, at paras. 28-35).

Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established. Provincial appellate courts have followed this approach to consider and apply the defence of officially induced error (R. v. Larivière (2000), 2000 CanLII 8295 (QC CA), 38 C.R. (5th) 130 (Que. C.A.); Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 2003 CanLII 41182 (ON CA), 64 O.R. (3d) 417 (C.A.)). I would also note that, in this appeal, neither the prosecution nor the intervener, the Attorney General of Canada, has questioned the existence of this defence in Canadian criminal law as it presently stands. At most, the Attorney General of Canada has suggested another condition in addition to those enumerated by Lamer C.J., namely that the act was committed contemporaneously with the reception of the information. I do not think this addition is necessary. The Attorney General of Canada's concerns relate more to the need to demonstrate that the advice was reasonable and that the accused relied on it. It should be noted, as the Ontario Court of Appeal has done, that it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice (R. v. Cancoil Thermal Corp. (1986), 1986 CanLII 154 (ON CA), 27 C.C.C. (3d) 295; Cranbrook Swine). Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion (Cancoil Thermal, at p. 303). It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the accused.

46Furthermore, in R. v. Key, [2012] S.J. No. 193 (Sask. Prov. Ct.), the defence of officially induced error of law had been raised in the case where the accused had been charged with driving while disqualified and breaching a probation order while he had been on a three-year driving prohibition. In that case, the Saskatchewan Provincial Court had permitted the accused to rely on the defence of officially induced error that had not been based on receiving erroneous information or advice from someone, but in the circumstances where a special government board had actually granted the accused a restricted driver's licence after he had already been sentenced to a driving prohibition for a period of three years when convicted earlier of the criminal offences of refusing to take a breath test and for driving while disqualified. However, the restricted licence that the accused had been granted by that government board had come with conditions that he only drive while going to and from and for his employment at a mill or for driving within a 24 kilometer radius of his farm when conducting activities related to running his farm and when he had zero alcohol in his body. In accepting the defence of officially induced error, the Saskatchewan Provincial Court had held at paras. 38 and 39 that there was an obvious injustice with the state approving conduct with one hand (when the Highway Traffic Board ordered that the accused be given a restricted licence) and seeking to bring criminal sanction for that conduct with the other (by charging him with driving while disqualified under the Criminal Code), and that the accused's case had been one of the clearest cases where a judicial stay was appropriate:

I am satisfied on a balance of probabilities that Mr. Key has made out the defence of officially induced error, under the six requirements for that defence set out by Lamer C.J. in Jorgensen. I am further satisfied that this is one of the clearest of cases where a judicial stay is appropriate. I am satisfied that this was a case in which - using the language of Chief Justice Lamer in Jorgensen (at para. 30) - there was an obvious injustice with the state approving conduct with one hand (when the Highway Traffic Board ordered that Mr. Key be given a restricted licence) and seeking to bring criminal sanction for that conduct with the other (by charging him with driving while disqualified under the Criminal Code). I am further satisfied that Mr. Key did not mislead the Highway Traffic Board in his application or presentation to the Board and that he did not mislead the employees or agents of SGI he spoke to.

I direct a judicial stay on the charge of drive while disqualified under the Criminal Code (count #1). As a result, I am left with a reasonable doubt that Mr. Key failed to keep the peace and be of good behaviour on December 27, 2010, and he is found not guilty of breaching his probation order (count #2).

(C) HAS THE DEFENDANT PROVEN ON A BALANCE OF PROBABILITIES THE DEFENCE OF OFFICIALLY INDUCED ERROR OF LAW?

47In considering whether the defendant has met his burden of establishing on a balance of probabilities the defence of officially induced error of law, the six criteria or elements set out by Lamer C.J. in R. v. Jorgensen will have to be analyzed in respect to the evidence adduced at trial:

(1) Did the defendant make an error of law or an error of mixed law and fact?

48The defendant was stopped and investigated by Officer Orgill while driving a motor vehicle on June 6, 2014, with an expired validation sticker on the vehicle's rear licence plate, and had provided the police officer with his Nigerian International Driver's Permit. Moreover, the defendant contends that at that time he had believed that he could legally drive in Ontario using his Nigerian International Driver's Permit because someone that he had been talking to on the Ministry of Transportation's customer service line had supposedly informed him that he could use his International Driver's Permit to drive in Ontario for up to six months, even though his Ontario driver's licence had been suspended, as long as he carried his Nigerian passport with him. And, that it had been the result of receiving this information from that government person that had caused him to believe that he could still legally drive in Ontario, although his Ontario licence had been under suspension, and that this had been why he had been driving on that day and why he had produced his Nigerian International Driver's Permit to Officer Orgill when the defendant had been stopped and investigated by Officer Orgill on June 6, 2014.

49Although this information or advice supposedly given to the defendant is not correct in law, since s. 36 of the H.T.A. clearly prohibits the defendant from using another driver's licence or permit issued by another jurisdiction when his Ontario driver's licence is under suspension, the defendant contends that he should nevertheless be able to rely on such information from a government person to be reliable and accurate.

50Hence, the defendant believing that he could still legally drive in Ontario for six months using a Nigerian International Driver's Permit, while his Ontario driver's licence had been under suspension, would be an error of law or an error of mixed fact and law made by the defendant.

(2) Did the defendant consider the legal consequences of driving on a highway in Ontario when his driver's licence had been suspended?

51The contention that the defendant had called the Ministry of Transportation's customer service line in January of 2014 to seek information about being able to use his Nigerian International Driver's Permit, while his Ontario licence was under suspension, is evidence that the defendant had considered the legal consequences of driving on an Ontario highway when his Ontario driver's licence was under suspension. However, the defendant's suspension had started on May 30, 2011, and it is curious why he had not made that call to the Ministry of Transportation's customer service line back in 2011, and why he had waited nearly two and on-half years to inquire about being able to still use his Nigerian International Driver's Permit to drive in Ontario while his Ontario licence was under suspension.

52It is also noteworthy that the Republic of Nigeria did not become a signatory to the 1949 Geneva Convention on Road Traffic until February 3, 2011, at which time Canada would have been obligated to recognize the International Driver's Permit issued by the Republic of Nigeria, and which is just a few months before the defendant had his Ontario driver's license suspended on May 30, 2011.

(3) Did the advice or information supposedly obtained by the defendant come from an appropriate official?

53For the third question to consider in determining whether the defendant has proven the defence of officially induced error of law, the defendant, when asked about who he had spoken to on the telephone, had stated that he did not obtain the name of the person he had been speaking to on the telephone who had advised the defendant that he could drive in Ontario with a Nigerian International Driver's Permit for six months, even though his Ontario driver's licence had been suspended. Moreover, the defendant testified that when he had asked for that person's name, the person on the telephone had told the defendant that the defendant did not need that person's name. In addition, the defendant did not provide what position the person on the telephone had held or that person's job title in the government of Ontario.

54However evidence about that person's job title or their position in the Ministry of Transportation is important for evaluating and determining whether the person who had provided the erroneous information had been a person in a position that could have provided proper and reliable information or advice, which would have reasonably misled the defendant about his ability to legally continue driving in Ontario.

55In considering whether the person providing the information or advice is in an appropriate position to provide such information, which could reasonably be relied upon by the defendant, Lamer C.J., explained in R. v. Jorgensen, at para. 30, that in determining whether the erroneous information or advice had come from an appropriate official, such government officials would have to be specifically involved in the administration of the law in question in order to be considered to be appropriate officials, and that such determination must be made in respect to the circumstances of each case, and that the government official must be one whom a reasonable individual in the position of the accused would normally consider them to be responsible for providing such advice about the particular law in question:

The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official. One primary objective of this doctrine is to prevent the obvious injustice which O Hearn Co. Ct. J. noted -- the state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other. In general, therefore, government officials who are involved in the administration of the law in question will be considered appropriate officials. I do not wish to establish a closed list of officials whose erroneous advice may be considered exculpatory. The measure proposed by O Hearn Co. Ct. J. is persuasive. That is, the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. Therefore, the Motor Vehicle Registrar will be an appropriate person to give advice about driving offences, both federal and provincial. The determination of whether the official was an appropriate one to seek advice from is to be determined in the circumstances of each case.

56Consequently, since the defendant did not obtain the person's name or their title, or their position within the Ministry of Transportation, who had provided the incorrect information or advice to the defendant, the defendant has not established on a balance of probabilities that this person had been an appropriate official or someone involved in the administration of the law in respect to the suspension of Ontario driver's licences under the H.T.A., so that a reasonable person in the same shoes of the defendant would have considered them to be responsible for providing advice about the law in question. Moreover, without the person's job title or position within the Ministry of Transportation it cannot be determined whether the person is someone authorized or is sufficiently knowledgeable to provide reliable information about using a driver's licence issued by another jurisdiction to drive in Ontario, while the Ontario driver's licence is under suspension.

57As Lamer C.J. indicated in R. v. Jorgensen, not every government person who a member of the public speaks to and who had provided erroneous information to an accused, which led to the accused committing an offence under a mistake of law, is an appropriate official for the purposes of determining whether the information had been provided by someone who is normally responsible for providing advice or information about the particular law in question.

58Accordingly, the defendant has not proven on a balance of probabilities that the person who had supposedly provided the information to him on the telephone about being able to continue driving legally in Ontario with his Nigerian International Driver's Permit, while his Ontario licence was under suspension, was an appropriate official with the Ministry of Transportation who would normally provide advice or information on the law, as it applied to the use of driver's licence from another jurisdiction when the defendant's Ontario driver's licence had been suspended.

(4) Was the advice or information supposedly obtained by the defendant reasonable?

59For the fourth criteria of whether the advice given to the defendant by the person on the telephone had been objectively reasonable, s. 36 of the H.T.A. clearly states that when an individual's Ontario driver's licence has been suspended, then the individual cannot use a driver's licence or permit issued by another jurisdiction to drive a motor vehicle in Ontario while their Ontario licence is under suspension:

36. A person whose driver's licence or privilege to drive a motor vehicle in Ontario has been suspended shall not drive a motor vehicle or street car in Ontario under a driver's licence or permit issued by any other jurisdiction during the suspension.

60Furthermore, in R. v. Miller, [1994] N.J. No. 299 (Nfld. S.C.), at para. 18, the Newfoundland court held that in order for an accused to establish the defence of officially induced error of law, the accused must prove that the information had come from an appropriate official who is vested with the responsibility, duty, or authority to enforce the law in question and that such advice had contained a degree of certainty and clarity:

In order for the respondents to rely on the defence of officially induced error they must establish that the erroneous advice was given by an official vested with the responsibility, duty or authority to enforce the law in question and such advice contained a degree of certainty and clarity.

61In addition, Lacourciere J.A. for the Court of Appeal for Ontario in R. v. Cancoil Thermal Corporation (1986), 1986 CanLII 154 (ON CA), 27 C.C.C. (3d) 295, held that the reasonableness of relying on advice from an appropriate official will depend upon several factors, including the efforts the accused had made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given:

The defence of "officially induced error" is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.

62In respect to the circumstances of the instant case, the information or advice supposedly given to the defendant by the person on the telephone would not have been objectively reasonable, since an appropriate official from the Ministry of Transportation, if asked whether someone could legally drive in Ontario using a driver's licence from another jurisdiction while their Ontario driver's licence was under suspension, would not have advised someone that they could continue driving in Ontario for six months using an International Driver's Permit while their Ontario licence was under suspension, in light of the explicit prohibition set out in s. 36 of the H.T.A., which bars a person from driving in Ontario using a valid driver's licence or permit issued by another jurisdiction during the suspension of that person's Ontario driver's licence.

63Furthermore, s. 36 is contained in the H.T.A. and not in a regulation enacted under the H.T.A., and if a person with the Ministry of Transportation had been properly informed and asked the question about using a driver's licence from another jurisdiction to operate a motor vehicle in Ontario when the individual's Ontario driver's licence had been suspended, the response suggested by the defendant would not have been an objectively reasonable response from that person on the telephone, since information about their Ontario licence being suspended ought to have triggered concern or doubt to the person on the telephone supposedly with the Ministry of Transportation about the ability of a suspended driver in Ontario being able to use a driver's licence from another jurisdiction to drive a motor vehicle in Ontario.

64In addition, s. 36 is not a new or recent piece of legislation added to the H.T.A., nor a complicated provision that contains or provides for exceptions or exemptions to that prohibition of using a driver's licence from another jurisdiction while the Ontario driver's licence had been under suspension, and would also not have been a unique or novel question posed to someone working at the Ministry of Transportation. As well, the correct answer to whether someone could legally drive in Ontario using a driver's licence issued by another jurisdiction during the suspension of that person's Ontario driver's licence, could have also been easily found by anyone looking at the provisions contained in the H.T.A.

65Moreover, if the question being posed by the defendant to the person on the Ministry of Transportation's customer service line had only concerned the ability to use the Nigerian International Driver's Permit to drive a motor vehicle in Ontario, without mentioning that their Ontario driver's licence had been suspended, then the response that the Nigerian permit could be used to drive in Ontario would have some cogency, especially in the context of the defendant still being a visitor or non-resident in Ontario, and who had not moved to or chosen to reside permanently in Ontario, or had just moved to Ontario less than 60 days before June 6, 2014.

66Furthermore, the defendant had testified that when he had called the customer service number he had supposedly been informed by the person he had been speaking to, that as long as he had his Nigerian passport with him, he could drive in Ontario using with his Nigerian International Driver's Permit for "six months". This particular information or advice supposedly given to the defendant also would have been more logical and plausible if the person on the telephone had been providing information to someone from another country, who was only a visitor or non-resident in Ontario, and who had been asking about the ability to drive in Ontario using their International Driver's Permit issued by another country. In any event, this so-called advice that the defendant could legally drive in Ontario using his International Driver's Permit for six months would have been still incorrect, since s. 34(2) only permits an out-of-country individual, who is no longer a visitor or non-resident to Ontario and who has moved to or taken up permanent residence in Ontario, to only use their valid driver's license in conjunction with their International Driver's Permit issued by their home country to drive in Ontario for a maximum period of 60 days after the date of moving to or taking up permanent residence in Ontario, after which they are legally obligated to obtain an Ontario driver's license under s. 32 of the H.T.A. to be able to legally drive in Ontario, and not for the six months that the defendant alleges had been told to him.

67Moreover, the information supposedly given to the defendant about being able to use his Nigerian International Driver's Permit to drive in Ontario, even though his Ontario driver's licence had been suspended, is not objectively reasonable or plausible, and only makes logical sense if the defendant's query to the person on the customer service line had been in reference to the defendant being only a visitor to Ontario who was from outside Canada, and who had not moved to or taken up permanent residence in Ontario, and who did not already have an Ontario driver's license.

68Ergo, the information or advice supposedly given to the defendant had not been plausible, logical, or objectively reasonable in light of the existence of s. 36 of the H.T.A. In addition, the defendant had not been straightforward, but rather evasive in his testimony, in respect to what he had actually told or informed the person on the telephone about his driving suspension in Ontario, and whether the defendant had in fact advised the person on the telephone that his Ontario driver's licence had been suspended when inquiring about using his Nigerian International Driver's Permit to operate a motor vehicle in Ontario.

(5) Was the advice or information supposedly obtained by the defendant erroneous?

69The information supposedly provided to the defendant by the person on the telephone was clearly erroneous in light of the existence of s. 36 in the H.T.A., which explicitly and clearly states that an individual cannot use a driver's licence or permit issued by another jurisdiction to operate a motor vehicle in Ontario when their Ontario driver's licence had been suspended. Moreover, s. 36 is not a new section or provision that has been recently added or introduced into the H.T.A. That particular section had been ensconced in the H.T.A. for at least 24 years when the defendant it had been charged, since this particular section had already been contained in the H.T.A. under the Revised Statutes of Ontario of 1990, and that particular section has not been amended since 1990.

70Moreover, the defendant contends that he had been informed that he could drive with his International Driver's Permit for six months as long as he carried his Nigerian passport with him is patently erroneous in two ways. Firstly, by virtue of s. 34(2) of the H.T.A., an out-of-country individual who has just moved to or has taken up permanent residence in Ontario may only use their International Driver's Permit in conjunction with their valid driver's license issued by their home country to legally operate a motor vehicle in Ontario for up to 60 days after they have moved to or taken up permanent residence in Ontario, before having to obtain an Ontario driver's licence under s. 32 of the H.T.A. And secondly, s. 36 clearly prohibits anyone from using a valid driver's licence issued by another jurisdiction to drive in Ontario while their Ontario driver's licence is under suspension.

71Furthermore, if the advice or information had actually been provided to the defendant by an appropriate official from the Ministry of Transportation, it would have been so clearly incorrect that it would not have been plausible for an official with the Ministry to have likely provided such erroneous advice or information, if the defendant had unequivocally asked whether he could drive in Ontario with a Nigerian International Driver's Permit while his Ontario driver's licence was suspended, considering that the exemptions to the s. 32 licensing requirement of using an International Driver's Permit to drive in Ontario only applies to out-of-country visitors or non-residents to Ontario or to people from another country who have only recently moved to or taken up residence in Ontario and have not been in Ontario for more than 60 days, and not to someone, by virtue of s. 36, who already possesses an Ontario driver's licence that is under suspension.

(6) In committing the prohibited act, did the defendant rely on the advice or information supposedly obtained by the defendant?

72The defendant contends that he should be able to rely on information from government people as being correct and reliable, and as such, had acted and relied on the information supposedly given to him by the person on the telephone in January of 2014 that he could use his Nigerian International Driver's Permit to operate a motor vehicle in Ontario for up to six months, even though his Ontario driver's licence had been suspended on May 30, 2011 (which is confirmed by Ex. 1), as long as he carried his Nigerian passport with him. And, it is this erroneous information supposedly provided to him in January of 2014 that would have induced him on June 6, 2014, to drive a motor vehicle in Ontario, even though his Ontario driver's licence had been suspended since May 30, 2011.

73Therefore, based on the evidence that the defendant had been observed, stopped, and investigated for driving a motor vehicle on June 6, 2014, at approximately 1:10 p.m. on Hurontario Street in the City of Brampton, while his Ontario driver's licence had been suspended, and then producing his Nigerian international permit to Officer Orgill during the traffic stop, and from the defendant's testimony about being informed that he could drive in Ontario using is Nigerian International Driver's Permit, even though his Ontario licence had been under suspension, would be sufficient to establish that the defendant had relied on the incorrect advice or information supposedly given to the defendant by the person on the Ministry of Transportation's customer service line in January of 2014, if it were to be believed that the erroneous information had been given to the defendant while his Ontario driver's licence had been under suspension. However, establishing the defendant had relied on the incorrect information supposedly given to him does not in itself mean that he has established on a balance of probabilities the defence of officially induced error of law.

(7) Conclusion on whether the defence of officially induced error of law has been proven on a balance of probabilities

74In sum, the defendant has not met its burden of proving on a balance of probabilities the defense of officially induced error of law, since the supposed information given to the defendant in January of 2014 by a person on the telephone is not objectively reasonable, logical, or plausible, in light of s. 36 of the H.T.A., which prohibits anyone with an Ontario driver's licence that has been suspended from using a driver's licence or permit from another jurisdiction while the defendant's Ontario licence is under suspension. Moreover, the defendant has failed to prove on a balance of probabilities that the person on the telephone had been an appropriate official with the Ministry of Transportation who could properly provide the advice or legal information in question, since not all government people would be able to properly advise or give a legal opinion on a point of law or the legal consequences of a particular action.

(D) IS THE OUT-OF-COURT STATEMENT SUPPOSEDLY MADE BY THE PERSON ON THE TELEPHONE TO THE DEFENDANT ADMISSIBLE FOR THE PURPOSE THAT IT HAD BEEN SAID AND NOT FOR THE TRUTH OF ITS CONTENTS?

75Now, to consider the hearsay rule and the admissibility of the out-of-court statement that a person on the telephone in January of 2014 had supposedly made to the defendant that he could drive in Ontario using his Nigerian International Driver's Permit, despite having his Ontario driver's licence suspended, would be presumptively inadmissible as offending the hearsay rule, unless it fell within an exception, or if the statement is not being offered by the defendant for the truth of its contents, but for some other purpose, such as that it had been said, then it may be admissible if it does not contravene any other evidence rule, principle, or policy.

76Authors Paciocco and Stuesser in their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), at pp. 105-106, have neatly summarized the admissibility of out-of-court statements that are not offered for the truth of its contents, but for the fact that it had been said:

Only those statements offered for their truth offend the rule against hearsay. In other words, hearsay evidence is not identified by the nature of the evidence, but by the use to which the evidence is to be put. When an out-of-court statement is offered simply as proof that the statement was made, it is not hearsay, and it is admissible as long as it has some probative value. The person relating that the statement was made is in court and can be cross-examined. For example, take the following scenario:

The plaintiff fell on steps leading into the defendant's store and sues in negligence for injuries caused. A delivery driver is called. The driver testifies that one hour prior to the accident a customer came into the store and told the manager, "Your steps are covered with ice and need to be cleared." The customer cannot be located.

Consider the use to which the delivery driver's testimony is to be put. Knowledge of a potential hazard relates to what is reasonable or unreasonable in the circumstances. The customer's statement amounts to a warning that a hazard existed. Its significance is that it was made and presumably heard by the manager. The delivery driver can be cross-examined on these points. Now if the statement were offered to prove that ice indeed covered the steps, it would be hearsay and, in order to test the truth of this statement, the customer would need to be cross-examined.

The question becomes one of relevancy: What relevant purpose does the statement have aside from its truth? If the statement has some probative value, it may be admissible for that limited purpose, though it is incumbent upon the trial judge to caution the jury as to its limited relevancy and to the fact that it is not admissible for its truth. Juries should not be left to determine the proper and improper uses of evidence. In the example above, the jury would need to be told that the delivery driver's statement was admissible as evidence of notice of an ice hazard, but was not admissible to prove that the ice hazard actually existed.

77In respect to whether the statement had been actually been made to the defendant by someone on the telephone from the Ministry of Transportation's customer service line to the defendant in January of 2014, the reliability and sincerity of the person who supposedly made that out-of-court statement to the defendant, that he can legally drive in Ontario using his Nigerian International Driver's Permit while his Ontario licence is under suspension, cannot be tested since the maker of that out-of-court statement is not in the courtroom to be cross-examined. Hence, the defendant's testimony that such advice or information had been actually made to him would be self-serving evidence.

78Moreover, the out-of-court statement supposedly made to the defendant by the person on the customer service line was not likely made or said in the manner that the defendant suggests, considering that s. 36 of the H.T.A., definitively states that an individual who had their Ontario driver's licence suspended cannot use a driver's licence from another jurisdiction to drive in Ontario while their Ontario licence is under suspension. Accordingly, because of the existence of s. 36, it would not have been objectively reasonable, plausible, or logical for anyone with the Ministry of Transportation, whose job was to inform the public of their legal obligations in respect to suspended driver's licence and the ability to use a driver's permit or licence from another jurisdiction, if that person from the Ministry of Transportation had been asked specifically about whether a resident of Ontario who had their driver's licence suspended could still drive in Ontario using a driver's permit or licence from another jurisdiction. As such, the defendant has not met the evidential obligation to prove that the out-of-court statement supposedly made on the telephone to the defendant in January of 2014 had actually been said in the manner that had been testified to.

79On the other hand, if the out-of-court statement in question had been actually said, then it would not be admissible for the truth of its contents, but only for the fact that it had been said. However, it is very doubtful that the out-of-court statement supposedly made to the defendant had actually been said to the defendant in the context and the circumstances described by the defendant because of the existence of s. 36 of the H.T.A., and as such, this out-of-court statement made by an unknown person by telephone supposedly to the defendant would not carry any weight, nor would it be credible or reliable evidence.

7. DISPOSITION

80Therefore, based on the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that the defendant, Daniel Lawend, has committed the offences set out in counts #1 and #2 of the information, specifically of operating a motor vehicle on a highway when his Ontario driver's licence was suspended, contrary to s. 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and for using a driver's licence issued by another jurisdiction when his Ontario driver's licence was still under suspension, contrary to s. 36 of the Highway Traffic Act, R.S.O. 1990, c. H.8, and that the defence of officially induced error has not been proven by the defendant on a balance of probabilities to justify a judicial stay of the two charges set out in counts #1 and #2. In addition, during arraignment the defendant, Daniel Lawend, had entered a guilty plea to count #3 for operating a motor vehicle on a highway without a current validation being displayed on the number plate of the vehicle, contrary to s. 7(1)(c)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8. As such, convictions in respect to counts #1, #2, and #3 will accordingly be entered against Daniel Lawend.

Dated at the City of Brampton on April 16, 2015.

QUON J.P.

Ontario Court of Justice