Court File and Parties

Court File No.: Halton – Milton – Information no. 11-7298

Date: 2012-04-02

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Carl Summerfield

Before: Justice of the Peace Kenneth W. Dechert

Heard on: December 19th, 2011

Reasons for Judgment released on: April 2nd, 2012

Provincial Offences Court – Milton, Ontario

Counsel:

C. Gelbard, for the Crown
The defendant Carl Summerfield on his own behalf

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsection 1(1), section 46, and subsections 52(1), 52(2), 53(1) and 210(7).

Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, subsection 47(3).

Cases Cited

Judgment

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

INTRODUCTION

[1] By means of Information no. 11-7298, sworn on the 26th day of May, 2011, the defendant Carl Summerfield stands charged that he on or about the 14th day of May, 2011, at the Town of Milton 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 the Highway Traffic Act, section 53(1)".

[2] The trial of the subject charge commenced on December 19th, 2011 in the Milton Provincial Offences Court. On that date the defendant entered a plea of not guilty and the trial of the charge then ensued before me. The trial was completed on the said date and the matter was then adjourned to April 2nd, 2012, for my judgment.

[3] The Crown was represented by Mr. C. Gelbard. The defendant was self-represented.

THE LAW

Relevant Statutory Provisions

[4] The defendant is charged with the offence of "driving while under suspension", 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 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…

[5] Subsections 52(1) and (2) of the H.T.A. are also relevant to the issues in this proceeding. Those subsections read as follows:

(1) Where a person's driver's licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a) in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b) in the case of all other suspensions, sent by mail to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

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

[6] The 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 motor cycle, 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 a 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.

[7] Subsection 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.

[8] In light of the fact that subsection 52(2) of the H.T.A. sets forth certain qualifications to the date when the notice of the suspension of a person's driver's licence, which is sent by either registered or ordinary mail, is deemed to have been given to that person, subsection 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, hereinafter referred to as the "P.O.A.", is relevant to the methodology to be used in the adjudication of the subject offence. That subsection reads as follows:

The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

Relevant Common Law

[9] In 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 (S.C.C.): 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 (S.C.C.); 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.

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

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. This defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

[11] The 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 Sault Ste. Marie, 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 [R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5 (S.C.C.)] and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he had done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. …

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

[12] The issues in this 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 either acting on the basis of a reasonable but mistaken belief that his driver's license was not under suspension or by taking all reasonable steps to avoid the prohibited event.

[13] If 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

[14] During the trial of this proceeding on December 19th, 2011, I received verbal evidence from Police Constable Adam Bendiks of the Halton Regional Police Service, as well as documentary evidence, received under the authority of subsection 210(7) of the H.T.A., tendered by the Crown. Following the completion of the Crown's case, I received verbal evidence from the defendant. During the course of cross-examination, the defendant identified his signature on a copy of a document titled "Notice of Suspension (Driver's Licence)", which was admitted into evidence as an exhibit.

The Testimony of Police Constable Adam Bendiks

[15] During his sworn testimony, Constable Bendiks stated that he was employed as a police officer with the Halton Regional Police Service and that he had been so employed since June 2006.

[16] The officer testified that on the 13th day of May, 2011, he was working the night shift, assigned to a marked police vehicle, beginning at 6:00 p.m. and ending at 6:00 a.m. on May 14th, 2011. He advised that starting at approximately 1:00 a.m. he was partnered with Police Constable Singh, for purposes of his ongoing patrol duties.

[17] Constable Bendiks testified that at approximately 1:29 a.m. on May 14th, 2011, he observed a silver-coloured Kia Rio motor vehicle turning out of a parking lot located at the southwest corner of Main Street East and Thompson Road and then travel in a westerly direction on Main Street East, in the Town of Milton. He stated that he then began to follow the said Kia motor vehicle as it travelled in a westerly direction on Main Street East and as it turned to proceed in a northerly direction on Wilson Drive in the said Town of Milton. He advised that upon turning onto Wilson Drive, the motor vehicle immediately entered a commercial plaza located on the east side of the said street.

[18] Constable Bendiks testified that once the vehicle entered the plaza, he stopped it. He advised that he then approached the male driver of the vehicle and demanded that he surrender his driver's licence and the permit and proof of insurance for the vehicle. The officer stated that the driver then provided him with an Ontario driver's license containing a digital photograph. He noted that the driver failed to surrender either the permit or proof of insurance for the vehicle.

[19] Constable Bendiks testified that he compared the digital photograph contained on the driver's license produced with the driver of the said motor vehicle and "found it to be the same person". He stated that the name on the driver's license was Carl Summerfield, who was "the defendant before the Court".

[20] Constable Bendiks testified that while speaking with the defendant, he "formed reasonable grounds to believe that he had been drinking that evening and had a presence of alcohol in his blood". He stated that he then returned to his police vehicle and "queried" the defendant's name and date of birth through the police information system. He stated that based upon the results of his inquiry, he served the defendant with a summons for the offence of "driving while under suspension".

[21] The defendant declined his opportunity to cross-examine the officer.

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

[22] During the course of his examination-in-chief of Constable Bendiks, the prosecutor tendered two documents to the Court under the authority of subsection 210(7) of the H.T.A. These two documents, which had been embossed with the seal of the Ministry of Transportation of Ontario, were entered into evidence collectively as exhibit #1 to the proceeding.

[23] The first of the two said documents contains 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 26th day of September 2011".

[24] The balance of the document sets forth certified statements made by the Registrar. Those statements read 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 CARL L. SUMMERFIELD, a male person, born on the 18th day of July 1955, whose latest address is 420 Main Street E., Ste. 521, Milton, Ontario was suspended effective the 14th day of April 2008 pursuant to a Court Order under the Highway Traffic Act for default of payment of a fine.

I further certify that a notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 14th day of April 2008 to Carl L. Summerfield at 321-99 Coe Hill Rd., Toronto, Ontario which then was the latest address on the records of the Ministry and that the said suspension was in effect on the 14th day of May 2011.

I hereby 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.

[25] The second of the two said documents, embossed with the seal of the Ministry of Transportation and attached to the certification document, is a photocopy of a "Notice of Suspension of Driver's Licence". This document, dated April 14th, 2008, pertains to driver's licence number S9246-11065-50718, and is addressed to Carl L. Summerfield, a male person born on the 18th day of July, 1955 of 321-99 Coe Hill Road, Toronto, Ont., M6S 3E4. It makes reference to driver's licence suspension number 8066205 and the typewritten name of "Mary Anne Henderson", Deputy Registrar of Motor Vehicles, is located on the lower right side of the document.

[26] The Notice of Suspension reads as follows:

Your driver's licence is suspended under section 46 of the Highway Traffic Act for not paying a fine or fines effective Apr. 14, 2008.

Your licence will remain suspended until all fines are paid. Fine payments must be made to a Provincial Offences Act Court Office. Call your local Provincial Offences Act Court Office for fines information and payment locations.

Note: after fines payment is received a minimum of 4 days is needed to process reinstatement of your licence.

Reinstatement fee or monetary penalty: Due to your suspensions (s), you must pay a $150 fee or penalty to obtain a licence after your suspension(s) ends. Please see the back of this form on how to pay.

The Testimony of the Defendant

[27] The defendant proffered the following sworn testimony-in-chief in this proceeding:

I believe my licence because of the plastic card that I had there in my wallet and the vehicle was insured. It is my son's vehicle. I did not know where he lived at the time. I was driving for Chudleigh's Apple Farm the summer before so obviously I thought they had checked me all out. I had no reason to believe that my licence was suspended. I had rented vehicles before with my driver's licence.

When I went to get my driver's licence after the three day suspension, it was not there. It had been destroyed. They couldn't find it at the police station and it wasn't at the – they told me it was at the MOT [Ministry of Transportation] office and the MOT office said they didn't receive it. The other thing they said was it was – the suspension was up on July 24th or something. They informed me at the MOT office that the suspension, the six month suspension, was over on July 24th I believe, but I didn't have this licence here. The three day suspension was up.

[28] I asked the defendant if there was anything more that he would like to say, to which he replied, "No. This licence expired August…". I then interjected to inquire as to what he was referring to when he stated "this licence". In that regard, the defendant testified as follows:

Well, my driver's licence said it expires August 14th, August 2014.

[29] The defendant went on to state that he was having a hard time "paying these exorbitant fines". He then made the following comments pertaining to his personal circumstances:

Well, I volunteer at the Salvation Army. I was driving a tractor trailer. I worked at Home Depot. I can't do the full eight hour shifts. I make less than $12.00 per hour, just barely enough to survive and pay for my room. I was driving a tractor-trailer for Chudleigh's Apple Farm in the summer of 2010.

[30] During cross-examination, the defendant was asked to clarify his testimony-in-chief that someone at the Ministry of Transportation had advised him that his six-month suspension "was up on July 24th". In this regard, the defendant stated that he interpreted this statement as meaning that his six-month driver's licence suspension had expired on July 24th, 2010.

[31] When the defendant was asked to explain the legal basis for the said six-month driver's licence suspension, he stated that he did not know the reason for the suspension, but speculated that the suspension was related to "unpaid fines". He then suggested that this suspension might have been connected to an unpaid fine from 2008.

[32] The prosecutor and the defendant then engaged in the following question and answer exchange:

Q: You stated that you can't pay these exorbitant fines. What exorbitant fines are you talking about, sir?

A: They told me that there is a $2,000.00 fine outstanding.

Q: Have you paid that fine, sir?

A: No. I haven't.

Q: Did you do any further checking to find out where this fine is from, sir?

A: No, I haven't.

Q: On the 14th day of May of this year, 2011, were you still living on Coe Hill Road in Toronto?

A: No, I wasn't, sir.

Q: Where were you living, sir?

A: I was living in Milton.

Q: How long have you been living in Milton for, sir?

A: On and off for the last three years. I was living in Mississauga for awhile and sometimes in Etobicoke.

Q: Did you notify the Ministry of Transportation that you'd moved, sir?

A: No, I haven't.

Q: And when had you moved from Coe Hill, sir?

A: In 2009 I believe.

Q: And you said that you were living on and off for three years in Milton. Were you still living on Coe Hill during that time, sir?

A: In 69 Galley and I did reside in Mississauga for awhile. I lived at 69 Galley where my driver's licence is stated.

[33] The defendant testified that the address "69 Galley" was located in Toronto. When he was asked when he last changed his address with the Ministry of Transportation prior to May 14th, 2011, he advised that he couldn't recall.

[34] The prosecutor and the defendant then engaged in the following question and answer exchange pertaining to the issue of unpaid fines dating back to 2008:

Q: Back in 2008, as we've heard you were suspended for unpaid fines. Did you have any outstanding fines that you were aware of, sir?

A: At that time in 2008, there's a discrepancy on my insurance. I was insured, went to court, but I was out by a few hours and so I was fined for not having insurance even though I did have insurance that same day.

Q: Did you pay that fine sir?

A: No, I didn't. I paid a paralegal quite a bit of money to represent me and nothing happened of it.

Q: But you didn't pay the fine, is that correct, sir?

A: No, he said he got it reduced. He said he got the fine reduced but I paid him all the money that I had and I didn't have any more money to pay the fines.

[35] Prior to concluding his cross-examination of the defendant, the prosecutor approached the witness and showed him a copy of a document, titled "Notice of Suspension (Driver's Licence)", dated May 7, 2008. When he asked the defendant if he recognized his signature anywhere on the document, the defendant pointed to his signature stating "Yes, down here". Once the defendant acknowledged the presence of his signature on the said "Notice of Suspension" in the location reserved for the "signature of person served", the prosecutor tendered the document into evidence as exhibit #2 to this proceeding.

[36] As stated above, exhibit #2 is a "Notice of Suspension (Driver's Licence)", in the form designed by the Toronto Police Service. The relevant portion of the said notice, reads, in part, as follows:

On the 7th day of May, 2008 at 16:60 hours, Name - Summerfield, Carl L. - Address – 321-99 Coe Hill Rd. Toronto - Driver's Licence No.-S9246-11065-50718 Ont.… Date of Birth - 55/07/18 - at Rambert Cres. Toronto … was notified of his suspension '08 Susp. 8066205. Reason-'unpaid fine' (started 2008/4/14).

The document indicates that Mr. Summerfield's licence was not seized at the time.

[37] As stated above, the defendant testified that the signature located in the box reserved for the signature of the person served, was his signature. The following statement is contained in the box immediately below the defendant's signature: "Notice of the suspension was served upon the person above". It appears that the said notice was signed by Police Constable Dybowski, #8262 of the Toronto Police Service.

ANALYSIS

Has the Crown proved the actus reus of the subject offence beyond a reasonable doubt?

[38] In my view, the following elements of the actus reus of the subject offence have been established by the undisputed evidence in this proceeding, beyond a reasonable doubt:

that on the 14th day of May, 2011, at approximately 1:29 a.m., the defendant, Carl Summerfield was driving a motor vehicle, to wit: a Kia motor vehicle on two highways, to wit: Main Street East and Wilson Drive, in the Town of Milton; and
that at that time, the defendant's licence to drive was suspended, pursuant to a court order under the H.T.A. for default of payment of a fine.

[39] The Crown has discharged its burden of proof relative to the issues of the identification of the defendant and the actus reus of this strict liability regulatory 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.

[40] In light of my finding in this regard, the legal burden of proof now shifts to the defendant to attempt 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 and is entitled to be acquitted of it.

Has the defendant proven, on a balance of probabilities, that in committing the actus reus, he exercised due diligence?

[41] During the course of his testimony and final legal argument in this proceeding, the defendant submitted that he did not, at the material time, know that his driver's licence was under suspension. It is reasonable for me to infer that the defendant is requesting that I find that on May 14th, 2011, he drove a motor vehicle on a highway while harbouring a reasonable, but mistaken belief that his driver's licence was not suspended. He is therefore arguing that he committed the prohibited act herein on the basis of an honest and reasonable mistake of fact; one of the two branches of the due diligence defence.

[42] One of the factors in the determination of whether the defendant reasonably believed that his driver's licence had been suspended is whether or not notice of the suspension had been delivered to him personally or, if sent to him by mail was deemed to have been given to him by operation of the provisions of subsection 52(2) of the H.T.A.

[43] In the case at bar, the documentary evidence entered collectively as exhibit #1 establishes that on April 14th, 2008, formal notice of the suspension of the defendant's driver's licence, being suspension no. 8066205, was forwarded by mail to the defendant at 321-99 Coe Hill Road, Toronto, Ontario, M6S 3E4, by the Deputy Registrar of Motor Vehicles. According to that exhibit, the said address was, as of that date, the latest address for the defendant recorded in the records of the Ministry of Transportation. The said notice of suspension advised the defendant that his driver's licence had been suspended under section 46 of the H.T.A., for not paying a fine or fines, effective April 14th, 2008.

[44] According to subsection 52(2) of the H.T.A., the said notice of suspension, sent by ordinary mail, is deemed to have been given to the defendant on the seventh day after the mailing, being April 21st, 2008. The subsection, however, sets forth a statutory qualification to the deemed date of service of the mailed notice of suspension. The text of the subsection states that a notice of suspension of a person's driver's licence forwarded to that person by mail, shall be deemed to have been given on the seventh day after the mailing "unless the person to whom notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice".

[45] As stated above, the provisions of subsection 47(3) of the P.O.A. apply to determine whether this statutory qualification operates in favour of the defendant. Therefore the defendant bears the onus of proving, on a balance of probabilities that he did not, acting in good faith, receive the notice of driver's licence suspension in the mail, for the reasons identified in subsection 52(2). If the defendant is able to establish the operation of the qualification contained in subsection 52(2), in his favour, then it cannot be presumed that he was given notice of the subject suspension on April 21st, 2008.

[46] After carefully considering the totality of the evidence in this proceeding, I find that the defendant has failed to prove, on a balance of probabilities, the operation of the statutory qualification to the deemed date of service of the notice of suspension, in his favour.

[47] During the course of his testimony, the defendant asserted that on May 14th, 2011 he was not aware that his driver's licence was suspended. He did not, however, state specifically that he did not receive the subject notice of suspension in the mail.

[48] On the other hand, there is credible evidence before me that on May 7th, 2008 the defendant had been personally served with written notice of the fact that his driver's licence had been suspended by reason of an unpaid fine, being suspension no. 8066205, effective April 14th, 2008. This evidence was contained in a document entered as exhibit #2 to this proceeding. During the course of his cross-examination in this proceeding, the defendant identified his signature on this document. Accordingly, I am able to reasonably infer that he directly received a copy of the notice of suspension from Police Constable Dybowski, badge no. 8262 of the Toronto Police Service, on the 7th day of May, 2008.

[49] In his decision in Regina v. Montgomery, supra, Mr. Justice MacDonnell expressed the view that if a person generally denies knowledge that his/her driver's licence had been suspended as of a certain date, then the lack of knowledge necessarily implies that the person did not receive the notice of suspension. In the opinion of the said jurist, this inferential reasoning is sufficient to prove the statutory qualification prescribed by subsection 52(2) of the H.T.A., which, in turn, serves to rebut the presumption that the notice of suspension was given to the licence holder on the seventh day after the day it was mailed to him or her.

[50] In the case at bar, the strength of the defendant's assertion that he was unaware of the suspension of his driver's licence has been significantly weakened by the contents of exhibit #2. The circumstances of the subject case are, in my view, distinguishable from those in Montgomery, supra. I am not, therefore, able to reasonably infer that the defendant did not receive the notice of the suspension of his driver's licence, which had been sent to him by mail on April 14th, 2008, simply based upon his bare assertion that he was not, at the material time, aware of the fact that his licence was under suspension.

[51] The said notice of suspension was forwarded by mail to the defendant at his address on Coe Hill Road in Toronto, Ontario, on April 14th, 2008. Based on the contents of exhibit #2, it would appear that the defendant was residing at that address on May 7th, 2008. Furthermore during cross-examination, the defendant testified that he moved from the Coe Hill Road address in 2009.

[52] When I weigh these pieces of evidence in the context of the evidence as a whole, I am of the view that the defendant has failed to discharge his burden of proving that he did not, acting in good faith, receive the notice of suspension sent to him by mail on April 14, 2008, on account of absence, accident, illness or other cause beyond his control. Accordingly, by operation of subsection 52(2) of the H.T.A., the subject notice of suspension is deemed to have been given to the defendant on April 21st, 2008.

[53] In light of my conclusion that the said notice of the suspension is deemed to have been given on April 21st, 2008 and in light of my finding that the defendant was actually made aware of the subject suspension on May 7th, 2008, I must now consider whether the defendant has established that his mistaken belief that his driver's licence was not in a state of suspension on May 14th, 2011, was a reasonable one. If the defendant's belief in this regard can be characterized as being reasonable, then I am able to conclude that he exercised reasonable care in the course of committing the prohibited act herein.

[54] During the course of his testimony, the defendant submitted that his belief that his driver's licence was not suspended on May 14th, 2011, was based upon a number of circumstances which had taken place between May 2008 and May 2011.

[55] The defendant noted that as of the date of the subject offence he was in possession of a current and subsisting driver's licence. He advised that throughout the subject period of time, he had rented vehicles with his driver's licence. Furthermore, he stated that during the summer of 2010, he was employed as a truck driver for a farm business, noting that he thought that his employer had conducted a check of his background. I am therefore able to infer that the defendant assumed that his employer had satisfied itself that the defendant's driver's licence was valid at the time that it hired the defendant. In this regard, during his testimony-in-chief, the defendant remarked that he had no reason to believe that his driver's licence was suspended.

[56] Finally the defendant testified that he had been advised by a representative of the Ministry of Transportation that his "six-month suspension" had expired on July 24th, 2010. The defendant's evidence in respect to this issue is both vague and confusing. He was unable to provide details of this alleged communication or the basis of the purported six-month driver's licence suspension. In this regard, he was only able to advise that his conversation with the Ministry of Transportation representative took place at the time when he went to the Ministry office to re-claim his driver's licence after the expiry of a three-day licence suspension period. Unfortunately, there is no evidence before the Court to explain the timing of or the basis for the alleged three-day licence suspension.

[57] Furthermore, when the defendant was asked to explain the reason for the alleged six-month driver's licence suspension which had expired on July 24th, 2010, he stated that he did not know the reason. He speculated, however, that the suspension was related to "unpaid fines". He "guessed" that it might have been related to the unpaid fine "in 2008". The defendant's speculation in this regard is not, however, logical as a fixed six-month period of licence suspension expiring on July 24th, 2010, would likely have been related to a court order made on the 24th day of January, 2010, rather than in 2008.

[58] As stated in Regina v. City of Sault Ste. Marie, supra, the defence of reasonable care "involves a consideration of what a reasonable man would have done in the circumstances". In that decision, Dickson J. stated that the 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".

[59] In Regina v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.), Tarnopolsky J.A. stated that "the due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably".

[60] In Regina v. Stelco Inc., [2006] O.J. No. 3332 (Ont. Sup. Ct.), Whitten J. noted that "due diligence imports a standard of objective reasonableness, a honest subjective belief is not enough".

[61] In commenting on the defence of due diligence in Regina v. Nitrochem Inc., [1993] O.J. No. 3336 (Ont. Prov. Div.), Anderson J. stated as follows:

An analysis of the defence reveals two possible arguments. First it is open to the accused to establish that he reasonably believed in a mistaken set of facts which if true would have rendered the act or omission harmless. The second branch of the argument is that the accused did everything within his power to avoid the event. In practical terms however, the two aspects of the defence ultimately converge since to establish the reasonableness of the mistaken belief an inquiry is necessary to determine whether the accused did everything reasonably within his power to ascertain the true state of affairs.

[62] In the case of Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Div.), Fitzpatrick J. made the following remarks pertaining to the definition of the defence of due diligence:

Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.

[63] In his decision in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), hereinafter referred to as Lévis v. Tétreault, LeBel J. writing on behalf of a unanimous panel of the Supreme Court of Canada, made the following comments respecting the defence of due diligence:

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 diligence is based on 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. …

[64] In determining whether the defendant has met his burden of proving the defence of due diligence, I must remind myself that the defence need only be established on a balance of probabilities. Accordingly, I must carefully examine the testimony of the defendant in the context of the totality of the evidence in order to determine whether the defendant, in committing the actus reus of the offence, did so while harbouring an honest and reasonable, but mistaken, belief that his driver's licence was not under suspension.

[65] As stated above, I am persuaded that the notice of the defendant's licence suspension under section 46 of the H.T.A., effective April 14th, 2008, is deemed to have been given to the defendant on April 21st, 2008. Furthermore, and in my view, more importantly, I am satisfied that the defendant actually received notice of his said licence suspension on May 7th, 2008. It would appear, therefore, that the defendant's assertion that he was not aware of the fact that his driver's licence was suspended as of May 14th, 2011, by reason of the unpaid fines from 2008, lacks credibility.

[66] On the other hand, during his testimony the defendant presented a number of circumstances which took place between May 2008 and May 2011, which may have caused the defendant to subjectively believe that his licence suspension of April 14th, 2008 was no longer in effect on May 14th, 2011. I certainly understand the defendant's submission that his ability to rent vehicles using his driver's licence and to undertake gainful employment as a truck driver in the summer of 2010, are factors which caused him to be confused as to whether his driver's licence remained in a state of suspension on May 14th, 2011. The question to be determined at this juncture is whether, at the material time, the defendant did everything reasonably within his power to ascertain the true state of affairs with respect to the status of his driver's licence.

[67] The defendant was aware of his 2008 driver's licence suspension on May 7th, 2008. During his testimony, he acknowledged that in 2008 he was convicted of the offence of owning and operating a motor vehicle without insurance and that a fine was imposed upon him by the Court. He further acknowledged that as of the date of his testimony, the said fine, which he believed to be in the amount of $2,000.00, remained unpaid.

[68] Furthermore, the defendant testified that he moved from his address on Coe Hill Road in Toronto, Ontario, in 2009 and that between that time and May 14th, 2011, he had resided at 69 Galley in Toronto, Ontario, an address in Mississauga, Ontario and at 420 Main Street, East, Suite #521, Milton, Ontario. He advised that during the said period of time, he failed to notify the Ministry of Transportation of the changes to his address from time to time.

[69] While I am satisfied that the defendant honestly believed that his driver's licence was in good standing and not under suspension on May 14th, 2011, I am of the view that his subjective belief in this regard cannot be characterized as a reasonable belief.

[70] In order to determine whether the defendant's mistake of fact defence rises to a standard equivalent to due diligence, I must measure the defendant's explanation for his actions in the context of what a reasonable man would have done in the circumstances. Specifically I must examine the defendant's personal circumstances as disclosed by the evidence before me, during the period between May 7th, 2008 and May 14th, 2011.

[71] I have found that the defendant became aware of the fact that his driver's licence had been suspended for an unpaid fine or fines in 2008, on May 7th, 2008. The defendant had knowledge of the outstanding fine against him and he acknowledged that he had not paid that particular fine. While I acknowledge that a number of circumstances took place which might have caused the defendant to believe that his driver's licence suspension had been lifted prior to May 14th, 2011, this belief lacks an objective foundation. Under the circumstances the defendant's belief that his licence was, as of May 14th, no longer under suspension, might be properly described as either wishful thinking or a bald assumption.

[72] As stated in Regina v. Nitrochem Inc., supra, the reasonableness of a mistaken belief is tied to the sufficiency of the efforts undertaken by the person possessing such a belief, to ascertain the true state of affairs. Furthermore, as stated in Lévis v. Tétreault, supra, "the concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are", noting that "passive ignorance" is not a valid defence.

[73] The totality of the evidence before me in this proceeding shows, on a balance of probabilities, that even though the defendant had knowledge of his 2008 driver's licence suspension as of May 7th, 2008, he did nothing to monitor the status of the suspension from that date to the date of the subject offence. The defendant testified that throughout the period between early 2009 and May 14th, 2011, he moved to three different residences, yet he failed to notify the Ministry of Transportation of the new addresses from time to time. In this regard, he was negligent in his duty to advise the Ministry of the changes in his address and therefore failed to maintain a line of communication with the Ministry of Transportation relative to the status of his driver's licence during the said period of time.

[74] In my view, a reasonable person would not have elected to drive a motor vehicle on a highway in the circumstances similar to those which the defendant faced on May 14th, 2011. On May 7th, 2008, the defendant learned that his driver's licence had been suspended for his default in the payment of a fine or fines. On May 14th, 2011, the defendant knew that the subject fine or fines remained outstanding and that he had not advised the Ministry of Transportation of the changes in his address. In these circumstances a reasonable person would likely conclude that as of May 14th, 2011 his or her driver's licence remained in a state of suspension, necessitating further investigation to determine the true status of the licence.

[75] As stated above, while I accept that the defendant may have honestly believed that his 2008 driver's licence suspension was, as of May 14th, 2011, no longer in effect, given the fact that he had worked as a truck driver in the summer of 2010, given his ability to use his driver's licence to rent vehicles and given the information which he had received from a Ministry of Transportation representative, that his licence suspension for a six-month period had expired on July 24th, 2010, his belief in that regard was not objectively reasonable.

[76] The defendant has failed to establish on a balance of probabilities that his mistaken belief as to the validity of his driver's licence on May 14th, 2011, was reasonable. His actions in driving a motor vehicle on the subject offence date without first making a thorough inquiry as to whether his driver's licence remained as of that date, in a state of suspension, fails to rise to the standard of due diligence enunciated in Regina v. Courtaulds Fibres Canada, supra, being "a high standard of awareness and decisive, prompt and continuing action".

[77] Based on the totality of the evidence in this proceeding, I find that the defendant has failed to discharge his burden of proving the first branch of the due diligence defence on a balance of probabilities. In particular, the defendant has failed to establish that in committing the prohibited act, he acted on the basis of an honest and reasonable mistake of fact.

THE DECISION

[78] The prosecution has proven all of the elements of the actus reus of the offence of drive while under suspension contrary to subsection 53(1) of the H.T.A. Accordingly, the fault element of negligence is presumed.

[79] The defendant has failed to establish on a balance of probabilities that in committing the subject offence, he acted with due diligence so as to negate the presumption of negligence. He is not, therefore, entitled to be excused of quasi-criminal liability for this strict liability offence.

[80] The defendant is therefore found guilty of the subject offence and a conviction is registered.

Released: April 2nd, 2012

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

R. v. Summerfield, 2012 ONCJ 183

Case Summary