Court File and Parties

Court File No.: COUNTY OF NORTHUMBERLAND 2760-999-13-0107

Date: 2013-11-20

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Spencer Kell

Before: Justice of the Peace R. J. Le Blanc

Heard on: October 21, 2013

Reasons for Judgment released on: November 20, 2013

Counsel:

• Mr. A. Fordham, for the Crown
• Ms. N. Greig, for the defendant Spencer Kell

Regulations and Case Law Considered

• s. 53(1) of the Highway Traffic Act
• s. 35(1)(b) of the Highway Traffic Act
• R. v. MacDougall, [1982] 2 S.C.R. 605
• R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299
• Lévis (City) v. Tétreault, 2006 SCC 12
• R. v. Krupa, [2002] O.J. No. 1650
• R. v. Summerfield, 2012 ONCJ 183
• R. v. Montgomery, 2006 ONCJ 203
• R. v. Ariganello, 2013 ONCJ 13
• R. v. Defaria, 2008 ONCJ 687
• R. v. Sirianni, 2010 ONCJ 725
• R. v. Clothier, 2011 ONCA 27
• R. v. Kurtzman
• R. v. Stelco Inc.
• R. v. Nitrochem Inc., [1993] O.J. No. 3336
• R. v. Courtaulds Fibres Canada, [1992] O.J. No. 1972
• R. v. Zwicker

JUSTICE OF THE PEACE R. J. LE BLANC:

The Charges

[1] Spencer Kell stands charged with the offence of driving while suspended contrary to s. 53(1) of the Highway Traffic Act, and displaying a licence that has been suspended, altered, etc., contrary to s. 35(1)(b) of the Highway Traffic Act.

The Evidence

[2] The evidence

[3] OPP Const. Jeremy Foley, whose notes were qualified on consent, initiated a traffic stop on February 12, 2013 at 9:58 a.m. on Highway (Hwy.) 401 approaching the Burnham Street exit in Cobourg, in Northumberland County.

[4] The vehicle, a 2001 Dodge Ram pickup truck that Const. Foley described as being "in bad shape" continued onto Burnham Street, eventually stopping at a strip mall.

[5] The driver produced an Ontario photo driver's licence in the name of Spencer Kell, date of birth Sept. 11, 1978, of Fergus Ontario.

[6] Const. Foley also received a registration for the vehicle and compared the vehicle identification number (VIN) on that document to the plate in the front window of the vehicle. The VIN numbers on the registration matched those on the plate located in the driver's side of the front window of the pickup truck.

[7] Const. Foley identified a photocopy of an Ontario photo driver's licence in the name of Spencer C. Kell of Fergus Ontario as a document he made (Exhibit 1). Mr. Kell's Ontario photo driver's licence was seized and returned to the Ministry of Transportation.

[8] Const. Foley conducted an investigation and laid the charges of displaying a cancelled or revoked driver's licence, contrary to s. 35(1)(b) of the Highway Traffic Act and drive while suspended contrary to s. 53(1) of the Highway Traffic Act.

[9] Under cross-examination Const. Foley said its "customary" to seize a driver's licence upon a traffic stop involving an allegation of driving while under suspension. "I would seize the licence if it was provided to me as identification," Const. Foley said. "We want to prevent the commission of any other offence."

[10] A document under the sign and seal of the Registrar of Motor Vehicles of the Ministry of Transportation (Exhibit 2) shows Spencer C. Kell, date of birth September 11, 1978, was a suspended driver as of January 2, 2013 for failing to complete remedial measures. The document, sent by regular mail, is deemed to have been served seven days later, and was in effect on February 12, 2013.

[11] This was the case for the Crown.

[12] Mr. Kell testified he owns and operates a small renovations company. In the winter he does snow removal. He said he was travelling to Belleville to do home renovations when Const. Foley conducted the traffic stop.

[13] Mr. Kell said he had not received notice of his suspension (Exhibit 2) adding mail to his home at 487 St. Andrews St. E. in Fergus is sometimes delivered to a bar located at 487 St. Andrews St. W. in the same municipality.

[14] "I honestly believed my licence was valid," he said. "It was an honest mistake. I don't have the best driving record but I always take the necessary action because I rely on my licence for a living. It's not a joke. I take it seriously and understand the severity of the consequences."

[15] Mr. Kell said he'd received a three day licence suspension for a 'warning' roadside breath sample, and was given a second, seven day suspension" for the same reason "a few months later."

[16] Mr. Kell said he paid the licence reinstatement fee and "asked if there was anything else I have to do. I was informed I was up-to-date and should be good to go. I believed registering for a course (remedial measures) was sufficient to meet the requirements. The course is now complete. I went to residential treatment and I'm coming up to six months of sobriety on November 6, 2013."

[17] Mr. Kell said his driver's licence was never taken from him and he believed "I was fine or I wouldn't be driving. The remedial action people said I had to complete the course so I could drive again. It took 30 days to get into the course. I was honestly confused."

[18] Under cross-examination Mr. Kell said he would "do anything necessary to keep my licence in good standing. If I can't drive it's more difficult to work."

[19] He admitted he received the three day suspension on August 17, 2012, and the seven day suspension on September 4, 2012. He said he underwent rehabilitation on May 27, 2013.

[20] Under cross-examination he admitted he had been stopped at 3 a.m. on February 11, 2013 by a Const. S. Hawley of the Toronto Police Service, and he admitted he was served a roadside notice of suspension (Exhibit 3). Mr. Kell said Const. Hawley noted during the roadside stop that the licence was suspended for failing to complete remedial measures. He said Const. Hawley did not take his driver's licence at the time of the traffic stop.

[21] Mr. Kell said he contacted the Ministry of Transportation and the Centre for Addiction and Mental Health (CAMH) later in the day on February 11, 2013, and was told he had to register for remedial measures in order to drive.

[22] "I believed once I registered it would be okay to drive because I had still had my driver's licence."

[23] Mr. Kell said he provided his driver's licence to Const. Hawley as proof of identification during the February 11, 2012 traffic stop.

[24] Defence witness Mason Kell testified he had been hired to drive his brother from time to time, including to Court, while his driver's licence was suspended. Under cross-examination he said he was not with his brother during the traffic stops on February 11 or February 12, 2013, adding he is not aware of his brother's record for driving infractions.

[25] This was the case for the defence.

Submissions

[26] In submissions Ms. Greig said she is not contesting Mr. Kell was a suspended driver on the date, time and place in question. "It's a question of whether or not he knew of his suspension."

[27] He was personally served with notice of suspension on February 11, 2013 after providing a photo driver's licence to Const. Hawley. Ms. Greig said Mr. Kell addressed the issues with regard to the remedial course by speaking to representatives of the Ministry of Transportation and CAMH the same day. "After applying for the remedial course he didn't believe he was suspended. The issue with the mail (not receiving the notice of suspension) was not within his control."

[28] Mr. Fordham says a due diligence defence comes down to "reasonableness."

[29] The roadside notice of suspension (Exhibit 3) speaks of an indefinite suspension had Mr. Kell read it, the Crown says. "It clearly states his driver's licence is suspended. He acknowledges receipt of this. He knew or ought to have known as a reasonable person would, that his driver's licence is suspended."

Legal Framework

The Offence of Driving While Suspended

[30] S. 53 (1) of the Highway Traffic Act reads, "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 regulation made thereunder is guilty of an offence and on conviction is liable …."

[31] R. v. MacDougall, [1982] 2 S.C.R. 605 holds that the offence of driving while suspended is a strict liability offence. A defence is available to the accused if he "reasonably believed in a mistaken set of facts which if true, would render" the act of continuing to drive without a valid licence an innocent one.

[32] R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 states 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 which involves consideration of what a reasonable man would have done in the circumstances.

[33] R. v. Sault Ste. Marie (supra) determined public welfare offences tend to be strict liability offences.

[34] Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), states, "Nothing in the words of this provision (driving without a valid licence) indicates an intention … to exclude a due diligence defence. … A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations … The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence."

[35] R. v. Krupa, [2002] O.J. No. 1650 suggests that a Court must consider the defence of due diligence where there is a reasonable inference of such by way of evidence.

[36] R. v. Summerfield, 2012 ONCJ 183 cites R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 (Ont. C.J.), as the case that summarizes the legal principles to be applied to the allegations before the Court. Essentially the Crown must prove guilt beyond a reasonable doubt before a due diligence defence can be considered. The onus then is with the defendant to prove that they've done what a reasonable person would have done in similar circumstances. The test to be applied is on a balance of probabilities.

[37] R. v. Summerfield (supra) states the Crown must prove that a defendant's driver's licence was suspended, and that the defendant drove while his licence was suspended. The Crown does not have to prove knowledge of the suspension, given s. 52(2) of the Highway Traffic Act.

[38] Ms. Greig agrees in submissions that the Crown has proven beyond a reasonable doubt that Mr. Kell was a suspended driver on the day in question, and that he was driving. As such the offence is automatically imported and a due diligence defence is now available to Mr. Kell.

[39] R. v. Ariganello, 2013 ONCJ 13 says that an analysis as per R. v. W. (D.), [1997] S.C.R. 742 does not apply to regulatory offences where the defence of due diligence is to be assessed by a trial Court. The party with the onus of proof on a balance of probabilities has the obligation to prove that the existence or non-existence of a fact of issue is more likely than not.

[40] R. v. Defaria, 2008 ONCJ 687, [2008] O.J. No. 5427 (paragraph 16), says, "The direction in W.D. speaks to the proper assessment of a defendant's evidence in the context of a criminal case where the Crown bears the burden of proof beyond a reasonable doubt. As mentioned, in this case, the matter in issue was due diligence, a point on which the appellant carried the burden on the balance of probabilities. In my view, it would be illogical and inappropriate to give the defendant the benefit of reasonable doubt on credibility when he bears the burden of proof on a balance of probabilities. I am firmly of the view that W.D. has no application to regulatory offences where the defence of due diligence is to be assessed by the trial Court."

Categories of Offences

[41] R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 provides for three distinct categories of offence based on the mental element required for conviction:

[42] Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;

[43] 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 or she took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. 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. These offences may properly be called offences of strict liability;

[44] Offences of absolute liability are those where it is not open to the accused to exculpate himself by showing that he was free of fault.

[45] R. v. Sirianni, 2010 ONCJ 725 states that once the Court has determined the Crown has proven the essential elements to the test of 'beyond a reasonable doubt' it must then consider whether the defendant has proven a 'due diligence' defence on a balance of probabilities.

[46] At this point the defendant is presumed to have been negligent in committing the prohibited act and so the burden of proof shifts to him on a balance of probabilities to show he exercised reasonable care. If he is able to do so his presumed negligence is rebutted and the Court must acquit.

[47] Applying R. v. Sirianni (supra), it stands to reason that the Crown has proven the defendant was driving on the date, time and place, and that his licence was suspended. This has been done by way of Const. Foley's evidence and by way of Exhibits one through three.

[48] It now becomes available to the defendant, on a balance of probabilities, to show that driving while suspended was the action of a 'reasonable' person.

Court's Analysis

[49] The Court, having heard the evidence, dismisses Mr. Kell's evidence regarding failure to receive notice of a suspension (Exhibit 2) by mail since the testimony becomes a moot point given the roadside suspension provided by Toronto Police Services Const. Hawley on February 11, 2013 -- some 30-hours prior to the traffic stop by Northumberland OPP Const. Foley.

[50] It is clear on the non-contradicted evidence that Mr. Kell knew he was a suspended driver as of February 11, 2013. Exhibit 3, notice of suspension served personally to Mr. Kell, shows a 'tick box' indicating Mr. Kell never provided a driver's licence to Const. Hawley.

[51] R. v. Clothier, 2011 ONCA 27 (Ont. C.A.) notes the objective of regulatory legislation is to protect the public or broad segments of the public (e.g. motorists) from potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of the public and social interest. Regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

[52] R. v. Summerfield (supra) speaks to the concept of permitting a defendant an opportunity of avoiding quasi-criminal liability by proving that he took all reasonable care, on a balance of probabilities, committing the offence on an honest and reasonable mistake of fact, or taking all reasonable steps to avoid it. The defendant, having proved so, should be acquitted.

[53] As per R. v. Summerfield (supra), a defendant's evidence does not necessarily discharge his burden on a balance of probabilities unless he also establishes he did not otherwise know of legislation pertaining to motor vehicles, and, that his lack of knowledge was not due to his negligence. It is available to the defendant to claim they committed the prohibited act as a result of an honest and reasonable mistake of fact or as a result of officially-induced error.

[54] R. v. Sault Ste. Marie (supra) states the defendant must provide evidence that he took all reasonable steps in the circumstances, or was operating under a reasonable mistake of fact, which if true, would render the act lawful.

[55] R. v. Sault Ste. Marie (supra) defines the defence of taking all reasonable care as involving consideration of "what a reasonable man would have done in the circumstances," and it is "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".

Case Law Regarding What is 'Reasonable'

[56] R. v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.) more narrowly defines the defence as relating "to the commission of the prohibited act, not some broader notion of acting reasonably".

[57] R. v. Stelco Inc., [2006] O.J. No. 3332 (Ont. S.C.J.), speaks of a due diligence defence importing "a standard of objective reasonableness; an honest subjective belief is not enough".

[58] R. v. Nitrochem Inc., [1993] O.J. No. 3336 (Ont. Prov. Ct.), suggests it is open to a defendant 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 reasonably 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.

[59] R. v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.), determined that "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, move a strict liability offence dangerously close to one of absolute liability."

Case Law on Being Passive

[60] In Lévis (City) v. Tétreault (supra), the Court said trial judiciary should not confuse passivity with diligence. In this case the defendant testified he expected to receive a licence renewal notice and confused the licence expiry date with the due date necessary to keep the licence valid. The defendant took no further nor did he attempt to obtain information. Lévis (City) v. Tétreault (supra) states the concept of diligence is based on a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence.

The Court's Findings

[61] It is open to the Court to find the Crown has proven the offence of displaying a licence that has been suspended or altered, etc. contrary to s.35(1)(b) of the Highway Traffic Act.

[62] s. 35(1)(b) of the Highway Traffic Act reads: Displaying licence that has been suspended, altered etc.: No person shall (b) display or cause or permit to be displayed or have in his or her possession a cancelled or suspended driver's licence or a driver's licence that has been changed with respect of its class, other than a licence card that has been marked by the Ministry as valid to show the driver's photograph.

[63] Without Toronto Police Service Const. Hawley's viva voce evidence the Court is unable to determine exactly what transpired during the February 11, 2013 traffic stop.

[64] Did Const. Hawley ask for, and did he receive Mr. Kell's driver's licence? Exhibit 3 would appear to suggest Mr. Kell failed to produce a driver's licence.

[65] Mr. Kell contradicts this evidence by saying he provided a driver's licence for identification purposes.

[66] If so, is it Const. Hawley's practice to seize the driver's licence or to return it?

[67] The only facts that can be relied upon are that Mr. Kell was served a roadside notice of his suspension on February 11, 2013, and that he still had an Ontario photo driver's licence to present as identification to Const. Foley approximately 30 hours later.

[68] The Court finds this to be an absolute liability offence and as such, the Crown need prove – beyond a reasonable doubt – that a driver was suspended in the province of Ontario and that he or she still had an Ontario driver's licence to secure a conviction.

[69] As such the Crown has proven beyond a reasonable doubt that Mr. Kell's Ontario driver's licence was suspended, that he knew his driver's licence was suspended, and that he had a driver's licence on the date, time and place in question.

[70] The only remaining question before the Court is whether or not Mr. Kell's actions following his roadside notice of suspension served by Const. Hawley some 30 hours earlier were the actions of a reasonable man. Again, Mr. Kell knew his driver's licence was suspended by way of Exhibit 3.

[71] It is open to the Court to find the Crown has proven its case with regard to the offence of driving while suspended contrary to s. 53(1) of the Highway Traffic Act proven beyond a reasonable doubt. As a strict liability offence the defence of due diligence is now open to Mr. Kell. The burden of proof shifts to the defendant; the test "on a balance of probabilities."

[72] Mr. Kell's due diligence defence is officially induced error. He said he called Ministry of Transportation and CAMH just hours after the roadside stop and notice of suspension.

[73] The only evidence the Court has to this effect is Mr. Kell's word.

[74] Clearly, given legal counsel, it was available to Mr. Kell to provide by way of evidence some proof that these calls took place. This would be considered 'best practice.'

[75] While this was not the case it is open to the Court to find on a balance of probabilities that these calls are as likely as not to have taken place, though there is no evidence, circumstantial or otherwise, to support this conclusion.

[76] Where Mr. Kell's defence falls apart is his belief that simply registering for a remedial program would ensure the validity of his licence which is clearly self-serving.

[77] Even were the Court to give Mr. Kell the benefit of the doubt on these matters on a balance of probabilities – it is as probable as not that he made the calls to the Ministry of Transportation and to CAMH -- there is no evidence whatsoever to support his contention of officially induced error.

[78] Mr. Kell could not tell the Court who he spoke to, or exactly what he was told. Mr. Kell produced generalities from the conversations that were said to have taken place, which he says led him to believe his licence was still in good standing in large part because he still had a driver's licence.

[79] As per Lévis (City) v. Tétreault (supra) the defendant took no further action nor did he attempt to obtain information as a reasonable person would have, and as such, failed in his due diligence which is based on a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence.

[80] The Court finds Mr. Kell chose to believe his licence was valid rather than making more fulsome inquiries which would have provided him with information to the contrary. Clearly Mr. Kell was in possession of a roadside notice of suspension 3000003 which was handed to him personally indicating an "indef. Suspend drive .05 BAC."

[81] The Court also finds the Ontario Court of Appeal decision in R. v. Zwicker, 17 O.R. (3d) 171 [1994] O.J. No. 197, to be of some assistance. R. v. Zwicker (supra) deals with a charge under the Compulsory Automobile Insurance Act (CAIA). In Zwicker the defendant argued that the vehicle ownership had not been transferred into their name and that as such, they were not required to have a valid contract of automobile insurance.

[82] R. v. Zwicker (supra) reads: "The CAIA is intended to ensure every car operated in the province is insured. The term 'owner' as it appears in s. 2(1) of this act, in our view, cannot properly be limited solely to the 'registered owner". To interpret 'owner' in that manner would permit the person with all the rights of common law ownership to avoid the corresponding responsibilities of ownership. Under the present HTA the appellant was required to register her ownership within six days of purchase. In direct contravention of this Act she failed to do so. It would be anomalous indeed if a breach of the HTA could amount to a shield against liability under the CAIA."

[83] R. v. Kell is similar in that it would be "anomalous indeed" if merely calling to for a program to address an outstanding remedial action requirement would be sufficient in and of itself to allow a suspended driver to resume driving legally.

[84] Motorists facing a similar charge could simply call and arrange for such remedial programs without any intention whatsoever of complying with such treatment. Essentially this is the "cheque is in the mail" defence; empty promises with little or no substance.

[85] It is open to the Court to find that a 'reasonable person' would have made more fulsome inquiries and would have concluded they could not drive until their remedial action program was complete. As per R. v. Stelco (supra) Mr. Kell's defence does not reach the "standard of objective reasonableness" on a balance of probabilities.

[86] As per R. v. Nitrochem (supra) Mr. Kell does not meet the standard, on a balance of probabilities, of doing "everything reasonably within his power to avoid the event."

[87] As per R. v. Courtaulds Fibres (supra) Mr. Kell did not on a balance of probabilities meet "a high standard of awareness and decisive, prompt and continuing action." Mr. Kell made two telephone calls at best and was told he had to register for a course. He then chose to interpret this to mean he could continue to drive because he still had an Ontario photo driver's licence that he should not have had.

[88] The analogy the Court draws is simple. It does not follow that making an appointment to take a driving test does automatically guarantee a driver's licence will be issued.

Conclusion

[89] The Court, having considered the evidence, exhibits and submissions, finds the Crown has proven its case -- with regard to the offence of driving while suspended – beyond a reasonable doubt. As such it is now open to Mr. Kell to prove the defence of due diligence – in this case officially induced error – on a balance of probabilities. It is open to the Court to find that Mr. Kell has not met this test; that his actions fall short of what a reasonable person would have done in similar circumstances.

[90] As such there will be a finding of guilt and a conviction registered on the charge of driving while suspended contrary to s. 53(1) of the Highway Traffic Act, and a finding of guilt of displaying a licence that has been suspended, contrary to s. 35(1)(b) of the Highway Traffic Act.

Released: November 20, 2013

Justice of the Peace R. J. Le Blanc