R. v. Lordon, 2016 ONCJ 460

minicounsel

Ontario Court of Justice

Date: July 12, 2016

Court File No.: Halton - Burlington 14-8092

Location: Provincial Offences Court – Burlington, Ontario

Between:

Her Majesty the Queen

— AND —

William J. Lordon

Before: Justice of the Peace Kenneth W. Dechert

For the Crown: A. Turner

For the Defendant: No appearance by or on behalf of William J. Lordon, even though notified of time and place

Heard: September 30, 2015 and April 6, 2016

Reasons for Judgment Released: July 12, 2016

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsections 1(1), 47(1), 53(1) and 210(7)
Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, paragraph 54(1)(a)

K.W. DECHERT, J.P. (orally):

INTRODUCTION

1In information no. 14-0892, sworn on the 28th day of February, 2014, the defendant William J. Lordon stands charged that he on or about the 23rd day of February, 2014, at the Town of Oakville in the Region of Halton, did commit the offence of "drive a motor vehicle on a highway when his driver's licence was suspended by operation of the Highway Traffic Act, contrary to Section 53(1) of the Highway Traffic Act".

2The trial of the subject charge commenced on September 30th, 2015, in the Ontario Court of Justice, Provincial Offences Court, in Burlington, Ontario. The defendant failed to attend for his trial on that date and the matter proceeded on the basis of a trial in the absence of the defendant, under the provisions of paragraph 54(1)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended. In that regard, upon arraignment on the subject charge, I entered a plea of not guilty on behalf of the absent defendant and the trial then ensued before me.

3As the trial was not completed on September 30th, 2015, it was adjourned to April 6th, 2016, for continuation. Upon completion of the trial on that date, it was adjourned to July 12th, 2016 for my judgment.

4The Crown was represented by provincial prosecutor Ms. A. Turner.

THE LAW

(i) Relevant Statutory Provisions

5The defendant is charged with the offence of driving when his driver's licence was suspended, contrary to subsection 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as the "H.T.A.". That subsection reads, in part, as follows:

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…

6Subsection 47(1) of the H.T.A. is also relevant to the issues in this proceeding. That subsection reads as follows:

Subject to section 47.1, the Registrar may suspend or cancel,

(a) the plate portion of a permit as defined in Part II;

(b) a driver's licence; or

(c) a CVOR certificate,

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reasons not referred to in clause (d), (e) or (f).

7The following terms, which are relevant to this proceeding, are defined in subsection 1(1) of the H.T.A., as follows:

In this Act,

'driver's licence' means a licence issued under section 32 to drive a motor vehicle on a highway;

'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

'Ministry' means the Ministry of Transportation;

'motor vehicle' includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include any street car or other motor vehicle running only upon rails, a power assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled instrument of husbandry or a road building device;

'Registrar' means the Registrar of Motor Vehicles appointed under this Act.

8Subsection 210(7) of the H.T.A. is relevant to this proceeding. That subsection reads as follows:

A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.

(ii) Relevant Common Law

9In his decision in Regina v. Montgomery, 2006 ONCJ 203, MacDonnell J. summarized the legal principles to be considered in adjudicating the offence of driving while under suspension, contrary to subsection 53(1) of the H.T.A. Those principles, which I find to be persuasive and therefore adopt, are set out in paragraphs 11 and 12 of the decision, as follows:

Driving while under suspension contrary to section 53 of the Highway Traffic Act is a strict liability offence within the meaning of the classification scheme described by the Supreme Court of Canada in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353: see R. v. Middlebrook; R. v. Miller; R. v. Laporta (1988), 5 M.V.R. (2d) 236 (Ont. C.A.); R. v. MacDougall, [1982] 2 S.C.R. 605; R. v. Lowe (1991), 29 M.V.R. (2d) 265 (N.S.C.A.). Because it is a strict liability offence, the burden on the Crown is discharged upon proof of the actus reus of the offence, namely (i) that the defendant's license to drive was suspended, and (ii) that while it was suspended, he drove. The Crown does not have to prove knowledge of the suspension, although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act.

In the case at bar, there is no dispute that the evidence proved the actus reus of the offence of driving under suspension beyond a reasonable doubt. Once the Crown establishes the actus reus of a strict liability offence, the burden shifts to the defendant to show that he was not at fault. Accordingly, if the appellant hoped to avoid conviction, the burden was on him to establish that he exercised due diligence – i.e., that he was not negligent – in relation to whether his licence was under suspension. 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: R. v. Middlebrook, supra. 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.

10In his decision in Regina v. Sault Ste. Marie (City), [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.

11The 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 defence of due diligence. If the defendant establishes this defence 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 Regina v. Sault Ste. Marie (City), supra, Dickson J. made the following comments:

The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries 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. …

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 defence 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 defence of reasonable care.

THE ISSUES

12The issues in this trial in absentia proceeding are as follows:

whether the Crown has proven that the defendant committed all of the elements of the actus reus of the subject offence, beyond a reasonable doubt; and
if the Crown has proven the actus reus of the offence, whether the defendant has established, on a balance of probabilities, that in committing the actus reus, he exercised due diligence by either acting on the basis of a reasonable, but mistaken belief, that his driver's licence was not, at the relevant time, under suspension or by taking all reasonable steps to avoid the prohibited event.

13If the Crown discharges its legal burden of proof, then the defendant is presumed to have been negligent in committing the prohibited act. The legal burden of proof then shifts to the defendant to attempt to show that he exercised reasonable care. If he is able to prove the exercise of reasonable care, on a balance of probabilities, his presumed negligence is rebutted and he will be excused of quasi-criminal liability for the offence.

THE EVIDENCE

14On September 30th, 2015, I received testimonial evidence from Mr. Frank Maiurro and Police Officer Jennifer Dewar, tendered on behalf of the Crown. Police Officer Dewar completed her verbal evidence on April 6th, 2016. The Crown then tendered into evidence certain certified documents under the authority of subsection 210(7) of the H.T.A., marked as exhibit #1, and subsequently closed its case.

(i) The Testimony of Mr. Frank Maiurro

15Mr. Maiurro testified that on February 23rd, 2014 at approximately 1:30 p.m. or 2:00 p.m., he was a passenger in a vehicle driven by his father, which was travelling in the vicinity of the "four-way stop" intersection of the streets of Sewell, Napier Crescent and Kent, in the Town of Oakville. He advised that he resided in the general area of that intersection.

16Mr. Maiurro advised that as they approached the said intersection, he observed a vehicle "parked up on the side of the ditch", which had "run over" the stop sign at the intersection. He stated that this vehicle, which he described as a silver or grey-coloured, four-door car, was situated over top of the "bent over" stop sign. He noted that the tires of the vehicle, which were not touching the ground, were "spinning" and that there was smoke emanating from the "front end" of the car.

17Mr. Maiurro testified that upon making these observations, his father stopped the vehicle and both he and his father walked over to the car stuck on the stop sign, to offer assistance to the occupant or occupants of the car.

18Mr. Maiurro stated that once he attended upon the disabled car, he observed an "elderly" white male sitting in the driver's seat, with his seatbelt on. He advised that there were no passengers in the vehicle. Mr. Maiurro observed that at that time, smoke was entering the cab of the said vehicle. He advised that he then took steps to "pull open" the driver's side door in order to help the said male exit the vehicle.

19Mr. Maiurro stated that upon opening the door, he advised the individual in the driver's seat, who appeared to be "confused", that he was there to assist him. He advised that he then "undid" the driver's seat seatbelt worn by the occupant and proceeded to "pull" the said male out of the car. He then led the male over to the curb of the adjacent road. Mr. Maiurro described this individual as an "elderly man", who he believed to be "probably… in his sixties… or even higher".

20Mr. Maiurro testified that as he was in the process of assisting the occupant leave the disabled vehicle, his neighbour arrived at the scene of the collision. He stated that at that time, both he and his neighbour participated in telephoning the police department to report the subject single vehicle collision.

21Mr. Maiurro advised that at that time, he and his father remained at the side of the road with the said "elderly man" for a period of about ten minutes, when the police officer arrived to investigate the circumstances of the collision. He advised that during this time he attempted to engage in a conversation with this individual, without success.

22Mr. Maiurro testified that once the police officer arrived at the scene of the collision, he did not have any further contact with the said elderly male. He advised that he remained at the scene of the collision for a period of approximately one-half hour in total, during which time he was interviewed by the attending police officer.

(ii) The Testimony of Police Officer Jennifer Dewar

23Police Officer Dewar testified that she was employed as a police officer with the Halton Regional Police Service, and had been so employed since August 2001.

24Officer Dewar testified that she had occasion to investigate the circumstances of the subject charge against the defendant, William Lordon, on February 23rd, 2014. She advised that she made notes of the circumstances of her investigation at the time of her involvement with Mr. Lordon or shortly thereafter and sought permission of the Court to make reference to the notes during the course of her testimony, for purposes of refreshing her existing memory of the events recorded.

25Based upon the evidence I received from the officer, I granted her permission to make reference to her investigative notes in order to refresh her existing memory of the events recorded in the notes, under the doctrine of "present memory revived".

26Officer Dewar testified that on February 23rd, 2014 at approximately 1:26 p.m., she was dispatched to the area of the intersection of Sewell Drive and Newton Road, in the Town of Oakville, to investigate an alleged "single motor vehicle collision".

27The officer advised that upon arriving at the said intersection at 1:29 p.m., she observed an "elderly male" standing on the roadway with two other people, as well as a Honda Civic motor vehicle, which had "gone over the stop sign" located on the south-west corner of the intersection.

28In describing the subject intersection, Officer Dewar stated that the intersection is located in a residential area and that it is controlled "by a four-way stop sign". In this regard she indicated that Sewell Drive runs in an east/west direction, that Newton Road runs in a southerly direction off of Sewell Drive and that Napier Crescent runs in a northerly direction off of Sewell Drive. In elaborating on her observations upon arriving at this intersection, Officer Dewar stated that she "observed tire tracks in the snow" running in a westerly direction on Sewell Drive "leading directly to where the vehicle had come to rest"; at the location of the stop sign on the south-west corner of the subject intersection. At a later point in her testimony, Officer Dewar stated that both Sewell Drive and Newton Road are "highways" as defined by the H.T.A.

29Upon conducting some inquiries at the scene of the collision, Officer Dewar was able to determine the identity of the "elderly male" who she observed to be standing on the roadway at the relevant time, by means of an Ontario, class "G" driver's licence, which was produced to her by the said individual. Officer Dewar noted that the photograph on the driver's licence matched the visage of the elderly man who gave the licence to her. The information contained in the said driver's licence identified the said male as William Lordon, born on June 8, 1943, with an address of 2172 Concession Road 4, Brechin, Ontario L0K-1B0.

30Officer Dewar advised that upon speaking with the other two individuals who were standing on the roadway at the relevant time, she determined that they were witnesses, not involved in the apparent collision. One of these witnesses identified himself as Mr. Frank Maiurro.

31Officer Dewar testified that while Mr. Lordon did not appear to be injured, he was, nevertheless"very disoriented". As it was "uncertain" as to whether Mr. Lordon had actually suffered any injuries as a result of the collision, he was transported from the scene of the collision to the Oakville-Trafalgar Hospital for purposes of a medical examination.

32Officer Dewar advised that later that afternoon, she spoke with Mr. Lordon at the Oakville-Trafalgar Hospital. She advised that she interviewed Mr. Lordon at that time, and obtained a verbal statement from him in response to a series of questions which she posed to him.

33I then embarked upon a voir dire, to determine whether the verbal statements made by Mr. Lordon to Police Officer Dewar, were made voluntarily. Following the completion of the voir dire, I ruled that the Crown had established beyond a reasonable doubt that the purported statements were made by Mr. Lordon voluntarily and I permitted the admission of the statements into evidence as an exception to the exclusionary hearsay evidence rule.

34During the course of her testimony during the trial proper, Officer Dewar stated the questions posed by her to Mr. Lordon and the answers given by him, which she had recorded in a verbatim fashion in her notebook, as follows:

Q: Please provide your account of the incident.

A: I don't remember a thing. I remember a thing. I remember coming from Toronto. I remember turning towards the church. The next thing I knew I was in a snowbank. I left my house today around 12:30 p.m. I had a baptism to do at 2:00 p.m. at Saint Mike's Church.

Q: Were you driving?

A: Yes, of course.

Q: Did you know your licence is suspended for medical reasons?

A: Yes, but I have a letter. It's in my car, actually, from my doctor saying it's okay now. It was for my diabetes. I left my pills at home today but I thought I was okay without them.

Q: Your licence is still suspended. Do you understand you're not to be driving from this day forward?

A: Yes, I understand.

35Officer Dewar testified that once she had completed her interview of Mr. Lordon, she served him with a "Part III" summons charging him with the offence of "drive suspended".

36In concluding her testimony, Officer Dewar advised that the "Honda Civic" which she observed to be resting over and in collision with a stop sign located at the south-west corner of the intersection of Sewell Drive and Newton Road was a "motor vehicle" as that term is defined by the H.T.A. Furthermore, at that time, she stated that the "highways", Sewell Drive and Newton Road, were located in the Town of Oakville and the Region of Halton.

(iii) The Documentary Evidence Admitted Under Subsection 210(7) of the H.T.A.

37Following the completion of Police Officer Dewar's testimony, the prosecutor tendered three documents, which had been impressed with the seal of the Ministry of Transportation, under the authority of subsection 210(7) of the H.T.A. These certified documents were received by me into evidence and marked collectively as exhibit #1 to this proceeding.

38The first of the three documents sets forth certified statements containing information derived from the records of the Ministry of Transportation. This document is signed by Robert Fleming, Registrar of Motor Vehicles, immediately below a statement which reads as follows: "Given under my hand and the seal of the Ministry of Transportation, this 20th day of March, 2014."

39The balance of the document sets forth the certified statements of the Registrar as follows:

I hereby certify from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act that the driver's licence of William J. Lordon, a male person, born on the 8th day of June, 1943, whose latest address is 2172 Conc. Rd. 4, Brechin, Ontario was suspended effective the 4th day of July 2013 pursuant to the Highway Traffic Act for evidence of a medical condition that would affect the ability to safely operate a motor vehicle.

I further certify that a notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 25th day of June 2013 to William J. Lordon at 2172 Conc Rd. 4, Brechin, Ontario which then was the latest address on the records of the Ministry and that the said suspension was in effect on the 23rd day of February 2014.

I further certify that the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation.

40The second of the three documents, which was annexed to the aforesaid certification document, is a photocopy of a document titled "Notice of Suspension of Driver's Licence". This document, dated the 25th day of June, 2013, references driver's licence suspension number 3416149 and is addressed to William J. Lordon, 2172 Conc. Rd. 4, Brechin, Ont., L0K 1B0, with the addressee's date of birth being recorded as June 8, 1943. The Notice which has ostensibly been prepared and authorized by "Judy Taggart, Deputy Registrar of Motor Vehicles", states as follows:

Your driver's licence is suspended under section 47(1) of the Highway Traffic Act effective July 4, 2013. Driver's licence suspensions will also affect your combined photo card, known as an enhanced driver's licence (EDL), if you are an EDL holder.

Reason: Evidence of medical condition that would affect your ability to safely operate a motor vehicle.

Your driver's licence will be reinstated when you file a satisfactory medical report.

41The third of the three documents is simply a document setting forth general information as to what suspended drivers should do relative to certain types of driver's licence suspensions.

ANALYSIS

(i) Has the Crown Proven the Actus Reus of the Subject Offence Beyond a Reasonable Doubt?

42In my view, the direct evidence of Police Officer Jennifer Dewar establishes, beyond a reasonable doubt, that the "elderly man" which she observed to be standing on the roadway of the intersection of Sewell Drive and Newton Road, in the Town of Oakville at the material time, was, in fact the defendant in this proceeding, William J. Lordon. When she arrived at the said location, at the scene of the single motor vehicle collision at approximately 1:29 p.m. on February 23rd, 2014, Officer Dewar observed that a Honda Civic motor vehicle had collided with a stop sign located on the south-west corner of the said intersection and based upon the results of her investigation at the time, she concluded that the said elderly male was the driver of the said Honda Civic.

43As part of her investigation, Officer Dewar asked the elderly man to identify himself. He complied with the request by producing an Ontario driver's licence with his photograph on it. Accordingly, based upon the information contained in the driver's licence produced, Officer Dewar was able to determine the identity of the said elderly man as being William Lordon, with a date of birth of June 8, 1943. The officer testified that she was satisfied with the identification provided by the gentleman. Accordingly, based upon this evidence, I am satisfied, beyond a reasonable doubt that the elderly man, who Officer Dewar spoke with on the roadway of the said intersection, is one and the same person as the defendant named in the subject information.

44Furthermore, in my view the documentary evidence adduced in this trial, as exhibit #1, establishes beyond a reasonable doubt that on the 23rd day of February, 2014, the driver's licence of William J. Lordon, born on June 8, 1943, was suspended. These documents were entered into evidence under the authority of subsection 210(7) of the H.T.A., and accordingly, are proof, in the absence of evidence to the contrary, of the certified statements or information contained therein. As there is no evidence before me which contradicts any of the said certified statements or information, I find that the Crown has proved, as an essential element of the actus reus of the subject offence, that at the material time, the defendant's driver's licence was under suspension.

45On the other hand, while there is no direct evidence before me which proves beyond a reasonable doubt that on February 23rd, 2014 the defendant was driving a motor vehicle on a highway located within the Town of Oakville, when I weigh the circumstantial evidence before me with respect to this issue in the context of the statements made by Mr. Lordon to Officer Dewar, I find that I am able to draw a reasonable inference that at or about 1:15 p.m. on February 23rd, 2014, Mr. Lordon was driving a motor vehicle on both Sewell Drive and Newton Road, in the Town of Oakville.

46Mr. Frank Maiurro testified that on February 23rd, 2014, at approximately 1:30 p.m. or 2:00 p.m., he discovered a disabled car situated in a ditch adjacent to the subject intersection, which had collided with a stop sign at that location. Upon approaching the damaged motor vehicle, he observed an elderly male sitting in the driver's seat with his seatbelt buckled. He helped this male person get out of the car and on to the roadway adjacent to the location of the damaged vehicle. This elderly man was later identified as being the defendant. During the course of assisting the defendant in exiting the disabled motor vehicle, Mr. Maiurro and his neighbour contacted the police. Mr. Maiurro advised that the police officer arrived at the scene of the collision about ten minutes after the time that he initially contacted the police department.

47Police Officer Dewar testified that she arrived at the scene of the reported collision, being the intersection of the highways of Sewell Drive and Newton Road, at approximately 1:29 p.m. Upon arrival she observed a disabled Honda Civic motor vehicle resting on top of a damaged stop sign located off of the roadway, on the south-west corner of the intersection. Additionally at this time, Officer Dewar observed three male persons standing on the roadway at the intersection. She described one of the males as being elderly, which was the expression used by Mr. Maiurro to describe the individual who he helped get out of the said motor vehicle. She determined the identity of this elderly individual as being William Lordon, the defendant herein.

48Officer Dewar took a statement from the defendant at the Oakville-Trafalgar Hospital. During the course of his statement, the defendant acknowledged that he was driving a vehicle on February 23rd, 2014 and that he had left his house at approximately 12:30 p.m. He advised that he had to perform a baptism ceremony "at Saint Mike's church" at 2:00 p.m. The defendant stated that had turned his vehicle towards the church and the next thing he knew was that he "was in a snowbank".

49When I consider the defendant's statement that on the date in question at about 12:30 p.m., he began to drive a vehicle from the Toronto area, in the context of Mr. Maiurro's testimony that at or about 1:30 p.m. he discovered the defendant sitting in the driver's seat of a car which was situated in a ditch adjacent to the subject intersection, and the testimony of Officer Dewar that at approximately 1:29 p.m. she attended at the subject intersection and observed a Honda Civic motor vehicle resting on top of a damaged stop sign located off of the roadway on the south-west corner of the intersection, I am able to reasonably and logically deduce that at or about 1:15 p.m., the defendant was driving the said motor vehicle on the highways which comprise the intersection of Sewell Drive and Newton Road.

50Based on the foregoing analysis of the evidence before me in this proceeding, I therefore find that the Crown has proven the following elements of the actus reus of the subject offence, beyond a reasonable doubt:

that on the 23rd day of February, 2014, the defendant, William J. Lordon was driving a motor vehicle, to wit: a Honda Civic motor vehicle on both Sewell Drive and Newton Road, in the Town of Oakville and the Region of Halton, being highways as defined by the H.T.A.; and
that at that time the defendant's driver's licence was suspended under section 47(1) of the H.T.A., based upon evidence that he suffered from a medical condition that would affect his ability to safely operate a motor vehicle.

51The Crown has discharged its burden of proof relative to the issues of the identification of the defendant and the actus reus of the subject strict liability offence, to the required standard. Accordingly, the fault element of negligence is automatically imported into the subject offence and the defendant is therefore presumed to have been negligent in committing the offence.

52In light of my finding in this regard, the legal burden of proof now shifts to the defendant to establish, on a balance of probabilities, that in committing the offence he exercised due diligence. If he meets his onus of proof in this regard, he will be excused of liability for the offence.

(ii) Has the Defendant Proven, on a Balance of Probabilities, That in Committing the Actus Reus, He Exercised Due Diligence?

53The subject charge proceeded before me by way of a trial in the absence of the defendant, and accordingly I did not receive any evidence tendered by or on behalf of the defendant in pursuance of a due diligence defence. It is, however, incumbent on me as the trier of fact and law to consider the totality of the evidence before me to determine whether the evidence shows, on a balance of probabilities, that in committing the prohibited act, the defendant took all reasonable care by acting either on the basis of a honest and reasonable mistaken set of facts or by taking all reasonable steps to avoid committing the said act.

54In this regard, it is noted that during the course of his statement to the investigating police officer, Mr. Lordon stated that while he knew that his driver's licence was suspended "for medical reasons", he believed that he was justified in driving a motor vehicle at the relevant time, as his doctor had purportedly provided him with a letter stating that it was now "okay" for him to drive. The defendant advised Officer Dewar that this letter was located in his car.

55Based on the limited information contained in the defendant's statement to the police officer, I find that while the statement raises a reasonable doubt as to the defendant's awareness that his driver's licence continued to be in a state of suspension at the relevant time, it does not, in my view, establish on a balance of probabilities, that he drove the subject Honda Civic on the basis of an objectively reasonable mistake of fact.

56It is an essential element of the reasonable mistake of fact branch of the due diligence defence, that the mistaken belief be not only genuine but objectively reasonable. As stated by Mr. Justice Whitten in his decision in Regina v. Stelco Inc."due diligence imports a standard of objective reasonableness, a honest subjective belief is not enough".

57In his decision, written on behalf of a unanimous panel of the Supreme Court of Canada in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, LeBel J. made the following comments respecting the efforts expected of a defendant to establish the due diligence of defence of reasonable mistake of fact:

In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of due diligence is based upon the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. …

58In the case at bar there is some evidence that at the material time, the defendant believed that he was permitted to drive a motor vehicle despite the fact that his driver's licence remained under suspension, as he advised that he was in possession of a letter from his doctor apparently supporting the lifting of the suspension. This letter has not been produced as evidence in this proceeding.

59As stated above, while the defendant's statement constitutes some evidence which raises a reasonable doubt as to his awareness that the subject suspension remained in force on February 23rd, 2014, the statement does not, in my view establish, on a balance of probabilities, the defence of due diligence so as to negate the defendant's presumed negligence in committing this regulatory offence.

60It is noted that there is no evidence before me of any steps that the defendant may have taken to inform him-self of the administrative requirements involved in seeking to lift the suspension and reinstate his driver's licence, based upon the opinion of his doctor relative to his medical condition. The defendant has failed to take action to determine his obligations in this regard and has, therefore, chosen to remain passively ignorant. Accordingly, he has failed to prove that he exercised all reasonable care in committing the subject regulatory offence.

THE DECISION

61The Crown has proven the actus reus of the subject offence of driving while under suspension, beyond a reasonable doubt.

62There is insufficient evidence before me to prove, on a balance of probabilities that in committing the subject offence, the defendant exercised due diligence. The defendant has failed to discharge his legal burden to prove the defence of due diligence.

63The defendant is therefore presumed negligent in committing the subject strict-liability offence and he has failed to rebut that presumption. He is not, therefore, entitled to be excused of quasi-criminal liability for the subject offence.

64Accordingly, William J. Lordon is found guilty of the offence that he, on or about the 23rd day of February, 2014, at the Town of Oakville in the Region of Halton drove a motor vehicle on a highway when his driver's licence was suspended by operation of the H.T.A., contrary to section 53(1) of the H.T.A., as charged and a conviction is registered.

Released: July 12th, 2016

Signed: "Justice of the Peace Kenneth W. Dechert"

R. v. Lordon, 2016 ONCJ 460

Case Summary

INTRODUCTION

THE LAW

(i) Relevant Statutory Provisions

(ii) Relevant Common Law

THE ISSUES

THE EVIDENCE

(i) The Testimony of Mr. Frank Maiurro

(ii) The Testimony of Police Officer Jennifer Dewar

(iii) The Documentary Evidence Admitted Under Subsection 210(7) of the H.T.A.

ANALYSIS

(i) Has the Crown Proven the Actus Reus of the Subject Offence Beyond a Reasonable Doubt?

(ii) Has the Defendant Proven, on a Balance of Probabilities, That in Committing the Actus Reus, He Exercised Due Diligence?

THE DECISION

R. v. Lordon, 2016 ONCJ 460

Case Summary

INTRODUCTION

THE LAW

(i) Relevant Statutory Provisions

(ii) Relevant Common Law

THE ISSUES

THE EVIDENCE

(i) The Testimony of Mr. Frank Maiurro

(ii) The Testimony of Police Officer Jennifer Dewar

(iii) The Documentary Evidence Admitted Under Subsection 210(7) of the H.T.A.

ANALYSIS

(i) Has the Crown Proven the Actus Reus of the Subject Offence Beyond a Reasonable Doubt?

(ii) Has the Defendant Proven, on a Balance of Probabilities, That in Committing the Actus Reus, He Exercised Due Diligence?

THE DECISION