Court of Appeal for Ontario

Citation: R. v. Chuang, 2010 ONCA 555

Date: 20100818

Docket: C50906

Before: Laskin, Sharpe and LaForme JJ.A.

Between:

Her Majesty the Queen

Respondent

and

David Suho Chuang

Appellant

Counsel:

Vincenzo Rondinelli, for the appellant (duty counsel)

David Suho Chuang, acting in person

Christine E. Bartlett-Hughes, for the respondent

Heard: August 17, 2010

On appeal from the conviction entered and sentence imposed by Justice J. Skowronski of the Ontario Court of Justice on July 21, 2009.

ENDORSEMENT

[1] This appeal from conviction on two counts of driving while disqualified must be allowed.

[2] The appellant was charged with operating a motor vehicle “while disqualified from doing so by reason of an order pursuant to s. 259(1) of the Criminal Code contrary to s. 259(4)(a) of the Criminal Code of Canada” in October 2008

[3] The Crown concedes that at the relevant time, the appellant was not disqualified from driving by reason of an order pursuant to s. 259(1). The Crown submits, however, that the appellant was disqualified from driving under the law of the province and relies on the definition of “disqualification” in s. 259(5)(b)(i) that includes “a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle … under the law of a province ... in respect of a conviction” for various specified Criminal Code offences including dangerous driving.

[4] The Crown’s position is that at the relevant time, the appellant’s licence was suspended under provincial law because he had failed to take the required remedial steps to reinstate his licence after it had been suspended as a consequence of his conviction for dangerous driving in March 2005 when he was sentenced, inter alia, to a two-year driving prohibition pursuant to s. 259(1).

[5] We are unable to accept the Crown’s submission for two reasons.

[6] First, as already indicated, the information alleged that the appellant “was disqualified from doing so by reason of an order pursuant to s. 259(1) of the Criminal Code”. It is clear that at the time of these alleged offences, the s. 259(1) order against the appellant had expired and that the appellant was not disqualified from driving under s. 259(1).

[7] Second, even if in the face of the wording of the information the Crown could rely on s. 259(5) and the suspension of the appellant’s licence under provincial law, the Crown would have to demonstrate that the provincial suspension was “in respect of” the appellant’s dangerous driving conviction.

[8] The Crown demonstrated that the appellant’s licence was suspended under provincial law for failure to complete a remedial programme in October 2008. However, the evidence relied on by the Crown – a certificate and Notice of Suspension effective November 30, 2005 – failed to prove that that suspension was in consequence of the appellant’s dangerous driving conviction in March 2005 so as to bring the suspension within the definition under s. 259(5).

[9] Accordingly, the appeal is allowed, the convictions are set aside and acquittals on both counts are entered.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“H.S. LaForme J.A.”