Her Majesty the Queen v. Molina Her Majesty the Queen v. Bell Her Majesty the Queen v. Pejic [Indexed as: R. v. Molina]

90 O.R. (3d) 223

Court of Appeal for Ontario,

Gillese, Armstrong and Blair JJ.A.

March 28, 2008

Criminal law -- Driving while disqualified -- Standard pre- printed prohibition order form signed by accused not setting out full penal consequences of driving while disqualified -- Order not complying with requirement in s. 260(1)(c) of Criminal Code that offender be "informed of subsection 259(4)" -- Presumption of regularity not operating to cure deficiency -- Accused properly acquitted of driving while disqualified -- Criminal Code, R.S.C. 1985, c. C-46, ss. 259(4), 260(1)(c). [page224]

All three accused were charged with driving while disqualified. They had each signed a standard pre-printed form for a prohibition order in use in Ontario between 2003 and 2005. It stated that upon conviction for driving while disqualified, a person is "liable to a term of custody and supervision" (in the case of two of the accused) or "liable to a term of imprisonment" (in the case of the third accused). Section 260(1)(c) of the Criminal Code requires that prohibition orders cause the offender to be informed of s. 259(4) of the Code. Section 259(4) states that everyone who drives while disqualified is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction. In each case, the accused was acquitted on the basis that s. 260(1)(c) of the Code was not complied with. The summary conviction appeal court affirmed the acquittals. The Crown appealed.

Held, the appeal should be dismissed.

Compliance with s. 260(1) of the Code is a precondition to a conviction for driving while disqualified under s. 259(4). Section 260(1)(c) was not complied with when the accused were given the prohibition orders as it was not brought home to them that they could be imprisoned for up to five years. The presumption of regularity did not apply. There was no reason to presume that the court clerk, in explaining the orders to the accused, went beyond the terms prescribed in the orders in doing so. Moreover, informing an offender about the penal consequences of a breach is not simply a routine formality or procedural detail.

APPEALS from judgments of Glithero J., 2006 32633 (ON SC), [2006] O.J. No. 3806, 215 C.C.C. (3d) 149 (S.C.J.), dismissing appeals from acquittals on charges of driving while disqualified.

Cases referred to R. v. McNamara (1982), 1982 2157 (ON CA), 36 O.R. (2d) 308, [1982] O.J. No. 3217, 66 C.C.C. (2d) 24 (C.A.) [Leave to appeal to S.C.C. refused (1982), 36 O.R. (2d) 308n, [1982] S.C.C.A. No. 271, 42 N.R. 607n, 66 C.C.C. (2d) 24n], consd Other cases referred to R. v. Buchwald, [1987] O.J. No. 723 (C.A.); R. v. Burton, 1969 275 (ON SC), [1970] 2 O.R. 512, [1969] O.J. No. 1598, [1970] 3 C.C.C. 381, 8 C.R.N.S. 269 (H.C.J.); R. v. Justice of the Peace, Ex parte Robertson, 1971 607 (ON SC), [1971] 2 O.R. 12, [1971] O.J. No. 1589, 2 C.C.C. (2d) 416 (C.A.); R. v. Kapoor, 1989 7250 (ON SC), [1989] O.J. No. 1887, 52 C.C.C. (3d) 41, 19 M.V.R. (2d) 219, 8 W.C.B. (2d) 510 (H.C.J.); R. v. Molina, 2006 32633 (ON SC), [2006] O.J. No. 3806, 215 C.C.C. (3d) 149, 38 M.V.R. (5th) 156, 70 W.C.B. (2d) 992 (S.C.J.); R. v. Morton (1992), 1992 12800 (ON SC), 7 O.R. (3d) 625, [1992] O.J. No. 179, 70 C.C.C. (3d) 244, 15 W.C.B. (2d) 234 (Gen. Div.); R. v. Peavoy, 1974 1665 (ON SC), [1974] O.J. No. 103, 15 C.C.C. (2d) 97 (H.C.J.); R. v. Scott, 1980 ABCA 299, [1980] A.J. No. 645, 14 Alta. L.R. (2d) 227, 26 A.R. 181, 56 C.C.C. (2d) 111, 5 W.C.B. 186 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 259 [as am.], 260 [as am.], 732.1 [as am.], 732.2 [as am.], 733.1 [as am.] [previously ss. 663(4), 664(4), 666]

James V. Palangio, for apellant. Harald A. Mattson, for respondent Marlon Molina. Timothy E. Breen, for respondent David Ernest Bell. Slavko Pejic, in person. [page225]

The judgment of the court was delivered by

BLAIR J.A.: -- Overview

[1] Mr. Molina, Mr. Bell and Mr. Pejic were all acquitted at separate trials in the Ontario Court of Justice of driving while disqualified contrary to s. 259(4) of the Criminal Code, R.S.C. 1985, c. C-46. Their appeals were heard together, both in Summary Conviction Appeal Court and in this court, because they raise a common issue. That issue is whether s. 260(1)(c) of the Code had been complied with when the appellants signed their respective prohibition orders.

[2] Compliance with s. 260(1) of the Code -- which requires the court to ensure that an offender who is disqualified from driving is informed of the provisions of s. 259(4) -- is a pre- condition to a conviction for driving while disqualified under s. 259(4). The appellants were each provided with a prohibition order that was prepared using a standard, pre- printed form. They each signed the form, acknowledging an understanding of its terms. The courts below concluded that the forms were deficient, however, in that they did not specifically alert the offenders to the full penal provisions contained in s. 259(4). They also held that the "presumption of regularity" did not operate to cure these deficiencies in the circumstances.

[3] I agree, and would dismiss the Crown's appeals essentially for the reasons given by Justice Glithero on the summary conviction appeal below. I add the following brief comments. Background

[4] The relevant portions of ss. 259 and 260 of the Criminal Code state:

259. . . . . .

(4) Every one who operates a motor vehicle . . . in Canada while disqualified from doing so (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. . . . . .

260(1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause [page226] (a) the order to be read by or to the offender; (b) a copy of the order to be given to the offender; and (c) the offender to be informed of subsection 259(4).

(2) After subsection (1) has been complied with in relation to an offender who is bound by an order referred to in that subsection, the offender shall endorse the order, acknowledging receipt of a copy thereof and that the order has been explained to him.

(3) The failure of an offender to endorse an order pursuant to subsection (2) does not affect the validity of the order. (Emphasis added)

[5] There was no issue at the appellants' trials that each had been driving while subject to a prohibition order. The only issue was whether the requirements of s. 260(1)(c) had been complied with at the time the orders were made. Were the appellants properly "informed of subsection 259(4)"?

[6] When made subject to their respective prohibition orders, each of the appellants was provided with a prohibition order that was prepared using a standard, pre-printed form then in use in the South Central Region of the Ontario Court of Justice. They each signed the order, acknowledging in the process that the order had been read by or to them, that they had received a copy of it, that the order had been explained to them and that they "understood its terms and conditions". However, the forms did not include the following notification, which is included in the forms presently being used:

AND TAKE NOTICE THAT everyone who operates:

a motor vehicle on any street, road, highway or other public place . . . . .

while disqualified from so doing under the Criminal Code, or in the case of motor vehicles, for such longer period provided for in the Highway Traffic Act is, upon conviction: (a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction

and, in addition to the above in the case of motor vehicles, is subject to an additional twelve month driver's licence suspension under the Highway Traffic Act. (Emphasis in original)

[7] Instead, the prohibition order provided to, and signed by, Mr. Molina simply warned that everyone who operated a motor vehicle, etc. while disqualified is "upon conviction, guilty of an [page227] offence and is liable to a term of custody and supervision". Mr. Pejic's prohibition order was drafted in the same language. In the case of Mr. Bell, the comparable warning was that upon conviction for operating a vehicle while disqualified the offender "is liable to a term of imprisonment". None of these warnings brought home to the appellants the specifics of s. 259(4), namely that they could be found guilty of an indictable offence and imprisoned for up to five years or found guilty of an offence punishable on summary conviction.

[8] At Mr. Molina's sentencing, the trial judge advised Mr. Molina that "you have to realize that every time you breach court orders, you are going to end up in jail. It is as simple as that." On the record, that is the closest any of the trial judges came to conveying verbally the warning mandated by s. 260(1)(c). There is no evidence of any comparable admonition by the trial judges in the cases of Mr. Bell or Mr. Pejic.

[9] In the Ontario Court of Justice, the trial judges all held that the foregoing circumstances were insufficient to ground a conviction for driving while disqualified; the Crown had failed to prove an essential element of the offence, namely, that the appellants had been "informed of subsection 259(4)", as required by s. 260(1)(c). The summary conviction appeal judge arrived at the same conclusion. I agree. Analysis

The presumption of regularity

[10] The Crown argues here -- as it did below -- that the "presumption of regularity" operates to cure any deficiencies in the s. 260(1)(c) notification procedure in the absence of evidence from the defence establishing that the provisions of the section were not complied with.

[11] The presumption of regularity is a reflection of the Latin maxim: omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium (everything is presumed to be rightly and duly performed until the contrary is shown). As Watt J. noted in R. v. Kapoor, 1989 7250 (ON SC), [1989] O.J. No. 1887, 52 C.C.C. (3d) 41 (H.C.J.), at p. 68 C.C.C., it "has especial application in the case of persons who discharge a public or statutory duty".

[12] Various authorities have drawn on the treatise of the great American authority on evidence, Professor John Henry Wigmore, in dealing with the underpinnings of the doctrine. For example, Prowse J.A., speaking for the Alberta Court of Appeal in the context of a breach of probation case in R. v. Scott, 1980 ABCA 299, [1980] A.J. No. 645, 56 C.C.C. (2d) 111 (C.A.), at pp. 113-14 C.C.C., said: [page228]

This statement [See Note 1 below] constitutes an admission by the accused, and is therefore admissible as evidence of compliance with s. 663(4)(a) and (b). The issue is whether, in the absence of positive evidence, the statement supplies an element of probability justifying the presumption that the explanation of sections 664(4) and 666 was delivered by the sentencing judge himself, as required.

In [Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law on Evidence, 3rd ed. (1940), vol. IX, p. 488,] that learned author proposes several conditions for the application of the omnia praesumuntur rule:

. . . first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability. (Emphasis added)

[13] This court approved that statement in R. v. McNamara (1982), 1982 2157 (ON CA), 36 O.R. (2d) 308, [1982] O.J. No. 3217, 66 C.C.C. (2d) 24 (C.A.), at pp. 28-29 C.C.C., leave to appeal to S.C.C. refused (1982), 36 O.R. (2d) 308n, [1982] S.C.C.A. No. 271, 66 C.C.C. (2d) 24n. It also approved the following additional admonition by Prowse J.A. in Scott at p. 114 C.C.C.:

I am in respectful agreement with the observation of Parker L.C.J. in Scott v. Baker (1968), 52 Cr. App. R. 566 at p. 571, that very great care must be taken in applying the presumption of regularity in criminal proceedings. To purport to establish the guilt of an accused solely or largely by reliance on such a presumption would amount to a fundamental contradiction of the principles upon which our system of criminal law is based. That is not to say, however, that the presumption has no application. (Emphasis added)

[14] Generally, the presumption of regularity has been resorted to in circumstances where there has been an irregularity in the creation of an official court document. For example, it has been used where an information or summons is regular on its face but is attacked on the basis of some irregularity pertaining to the way in which it was signed or sworn: see R. v. Burton, 1969 275 (ON SC), [1970] 2 O.R. 512, [1969] O.J. No. 1598, [1970] 3 C.C.C. 381 (H.C.J.); R. v. Justice of the Peace, Ex parte Robertson, 1971 607 (ON SC), [1971] 2 O.R. 12, [1971] O.J. No. 1589, 2 C.C.C. (2d) 416 (C.A.) [page229]; R. v. Peavoy, 1974 1665 (ON SC), [1974] O.J. No. 103, 15 C.C.C. (2d) 97 (H.C.J.). The presumption has also been used to regularize an information by presuming that a justice of the peace -- in the absence of evidence to the contrary -- had held the necessary hearing prior to issuing process: R. v. Morton (1992), 1992 12800 (ON SC), 7 O.R. (3d) 625, [1992] O.J. No. 179, 70 C.C.C. (3d) 244 (Gen. Div.).

[15] In McNamara, this court considered the application of the presumption of regularity in circumstances similar to these -- in the context of a probation order. That case would be analogous to this one if the content of the prohibition forms were also analogous. However, they were not.

[16] The background of McNamara is as follows. As in the case of a driving prohibition, the Criminal Code mandates that a person placed on probation be informed of the consequences of failure to obey the probation order. At the time the relevant provisions were found in ss. 663(4), 664(4), and 666 of the Code. [See Note 2 below] Subsection 663(4)(c) was the counterpart to the proviso in s. 260(1)(c) dealing with driving while disqualified; it required the court, when making a probation order, to "inform the accused of the provisions of subsection 664(4) and the provisions of section 666". Section 666 made it an offence to fail to comply with a probation order and s. 664(4) specified the penalties that could be imposed for doing so.

[17] Mr. McNamara was on probation and was charged with failing to comply with his probation order. The police gave evidence of the particulars of the breach and tendered the probation order as an exhibit. The Crown proffered no evidence showing that the accused had been informed of the potential consequences of a breach of probation. Mr. McNamara called no evidence. The probation order was based on a standard form from the Code and had been used in three provinces, including Ontario. The special terms of probation applicable to the offender were typed into blank spaces in the form and Mr. McNamara had signed the form acknowledging it had been read to him, that he understood its terms and conditions, that he had received a copy of the order and that he had been informed of the provisions of ss. 664(4) and 666 of the Code. Significantly, the provisions of subsection 664(4) and s. 666 were printed on the reverse side of the form in their entirety.

[18] This court held that the decision of the judge below could have been upheld on the basis of the presumption of regularity [page230] (which presumed, in the absence of evidence to the contrary, that the judge below had complied with his statutory duty when he imposed the term of probation by informing the offender of the consequences of breaching the order). [See Note 3 below] Thus, the McNamara decision would be comparable to the present appeals if the forms used in the appellants' cases included the potential consequences of a breach, like the form used in McNamara and the forms presently in use. But that is not the case.

[19] The reasoning in McNamara has been subsequently adopted by this court in R. v. Buchwald, [1987] O.J. No. 723 (C.A.).

The presumption of regularity applied to this case

[20] Once the Wigmore conditions have been satisfied and the presumption of regularity has been found to apply, it is open to the accused to rebut it by way of evidence. The degree of proof required to displace the application of the presumption has been held to be proof on a balance of probabilities. See Kapoor at p. 70 C.C.C. That evidence need not originate from the alleged offender or witnesses for the defence, however. Here, the trial judges and the summary conviction appeal judge all concluded that there was evidence tendered by the Crown that rebutted the presumption, namely the prohibition order itself.

[21] I agree with the result reached by the summary conviction appeal judge and with the reasons he articulates, namely (a) that the orders were defective or deficient in that they did not advise the appellants that they could be charged with an indictable offence and receive up to five years in jail if they drove while disqualified, and (b) that there is no reason to presume that the court clerk, in explaining the orders to the appellants, went beyond the terms prescribed in the orders in doing so. As the summary conviction judge noted at para. 25 of his reasons:

Far from making it probable that the act [required by s. 260(1)(c)] had been done, the evidence available to the trial court here made it unlikely that there was compliance with Section 260(1) in that the only evidence on point, the signature and acknowledgment of the accused, relates to a deficient and inadequate level of warning. There is no basis upon which to utilize the presumption of regularity to assume, as proof, that the officer who [page231] witnessed the signature of Mr. Molina went beyond the form of the order that the accused signed, and either read from a correct version of an order, or advised the accused orally out of his own knowledge. There would be no point in having the accused sign and acknowledge a lesser and deficient form of warning if in fact the accused had been provided with a proper warning. (Emphasis added)

[22] In short, the fourth Wigmore requirement for the application of the presumption -- "that the circumstances of the particular case add some element of probability" -- did not exist in this case.

[23] Nor, for that matter, did the second Wigmore requirement -- "that [the matter] involves a mere formality, or detail of required procedure, in the routine of a . . . public officer's action" -- apply on the facts here. The requirement that an offender disqualified from driving be "informed of subsection 259(4)" means more than that the offender be simply advised of its existence; "informed" means that the details of the significant penal exposure triggered by the application of that section must be brought home to the offender. Nothing less than that prerequisite is an element of the offence of driving while disqualified. Informing an offender about the penal consequences of a breach is not simply a routine formality or procedural detail. Disposition

[24] For the reasons outlined above, including the reasons articulated by the summary conviction appeal judge, I reject the Crown's submission that the presumption of regularity applies to sustain a conviction in the circumstances of these appellants. I would therefore dismiss the Crown's appeals.

Appeals dismissed.

Notes

Note 1: The signed statement of the accused on a probation order form acknowledging that he or she has read the order, that a copy has been given to him or her, that he or she understands its contents, and that the provisions of the relevant sections in the Criminal Code have been explained to him or her.

Note 2: The comparable provisions are now ss. 732.1(5), 732.2(3), 732.2(5), and 733.1.

Note 3: In fact, this court upheld the decision on a different basis. It held that the obligation of "the court" in relation to the warning regarding the consequences of breaching the probation order could be performed by a properly delegated court offical. The signed acknowledgment of compliance by the offender was therefore sufficient to ground the conviction.