Court File and Parties

Court File No.: St. Catharines - 2111-999-11-1326-00

Date: 2013-12-09

Ontario Court of Justice

Between:

Her Majesty the Queen Appellant

— And —

Geoffrey Beatty Respondent

Before: Justice D.A. Harris

Heard: August 26, 2013

Released: December 9, 2013

Counsel:

• P. Riley for the Appellant, Crown
• No one appearing for the Respondent, Geoffrey Beatty

Reasons for Judgment

HARRIS J.:

Introduction

[1] Geoffrey Beatty was charged with driving while suspended contrary to the Highway Traffic Act of Ontario. He did not appear to contest the charge and a trial was held in his absence. Following that trial, the presiding Justice of the Peace dismissed the charge.

[2] This is an appeal against that acquittal.

[3] The appeal is allowed for the following reasons.

Facts

[4] The presiding Justice of the Peace heard evidence that Mr. Beatty was operating a motor vehicle on September 25, 2011 and that at that time, his licence to operate a motor vehicle was suspended as a result of an unpaid fine.

[5] A certified copy of a notice of suspension was introduced into evidence as an exhibit.

[6] In addition, the presiding Justice of the Peace heard evidence that when asked by the police officer for his driver's licence, ownership and insurance, Mr. Beatty looked into his wallet and made the statement "It's suspended". The presiding Justice of the Peace had previously ruled that this statement had been made voluntarily.

Trial Judge's Reasons

[7] After hearing the submissions made by Crown counsel, the presiding Justice of the Peace gave the following Reasons for Judgment:

With respect to Mr. Beatty, I do have a letter under the hand and seal of the Ministry of Transportation that he was a suspended driver on September 23rd, 2011, and the letter was sent on that day. He was subsequently caught on September 25th, two days after that. Now there is no evidence to the contrary other than his own utterance to the officer that he was a suspended driver. Now he may have suspected that he was a suspended driver, but there is no evidence saying that he knew for sure whether he was a suspended driver. He may have been responding to some other item. I can only respond to what I have before me. I am not giving – I am giving very little weight to the utterance as hearsay on that day and the Act is very clear that the Notice of Suspension is deemed served seven days following the suspension. The letter is only two days so we are clearly within that seven day period. I have a reasonable doubt as to whether or not Mr. Beatty knew he was a suspended driver as per Bellomo, R. v. Bellomo [1995] O.J. No. 313, in this instance, and therefore I am entering a finding of not guilty and I think that concludes the list.

Crown's Arguments on Appeal

[8] Crown counsel has argued that the presiding Justice of the Peace erred in ruling:

(1) that the Crown was required to prove beyond a reasonable doubt that Mr. Beatty knew that his licence had been suspended, and

(2) that, in any event, the Crown had failed to do so here.

[9] I agree with both arguments.

Legal Framework for Strict Liability Offences

[10] I have summarized the law regarding who has to prove what in a driving while suspended case on previous occasions. I will however summarize it again here.

[11] The Supreme Court of Canada in R. v. Sault Ste. Marie determined that all regulatory offences fall into one of three classifications. One of these classifications is that of strict liability offences.

[12] The Supreme Court of Canada in R. v. MacDougall and the Ontario Court of Appeal in R. v. Miller stated that driving while suspended falls into the classification of a strict liability offence.

[13] The effect of this is set out in R. v. Montgomery where MacDonnell J. stated that:

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 licence 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.

[14] So, applying the principles set out in Sault Ste. Marie, once the Crown had proved the actus reus beyond a reasonable doubt, it would have then been open to Mr. Beatty 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. 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.

[15] The onus was therefore on Mr. Beatty to prove on a balance of probabilities that he reasonably believed that his driver's licence was not suspended at the time that he was caught driving.

[16] There was no evidence before the presiding Justice of the Peace that Mr. Beatty believed this. In fact, there was evidence that he did not believe this.

The Deeming Provision

[17] The presiding Justice of the Peace was correct in finding that the presumption, set out in section 52(2) of the Highway Traffic Act, did not apply here.

[18] Section 52 reads as follows:

52. (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 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.

(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.

[19] Mr. Beatty was caught driving less than seven days after the notice of suspension was mailed and accordingly he could not be deemed to have received that notice.

[20] That should not, however, have been the end of the matter.

The Due Diligence Defence

[21] It was recognized by both MacDonnell J. in Montgomery and by the Ontario Court of Appeal in Miller that:

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.

[22] But MacDonnell J. then continued:

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.

[23] I am aware of the decision of R. v. Bellomo where Fairgrieve J. concluded that the proper test in drive suspended cases was whether the defence had left the court with a reasonable doubt as to whether the defendant was aware of the suspension.

[24] I note also that the reasoning from Bellomo was also adopted by Tetley J. in R. v. Lupo.

[25] These decisions by two Justices of the Ontario Court of Justice however are contrary to the ruling by the Ontario Court of Appeal in Miller where it was clearly stated that the onus would be on Mr. Beatty to prove, on a balance of probabilities that he did not know of his suspension and that his lack of knowledge was not due to his own negligence.

[26] So it was an error for the presiding Justice of the Peace to rule that the Crown had to prove beyond a reasonable doubt that Mr. Beatty had received the notice of his suspension.

[27] The Crown needed to prove beyond a reasonable doubt that Mr. Beatty was driving and that, at that time, his licence to drive was suspended. In the absence of evidence that Mr. Beatty reasonably believed that his licence was not suspended, that was all that was needed to convict Mr. Beatty here.

[28] Evidence that Mr. Beatty had not received the notice of suspension mailed by the Registrar of Motor Vehicles would not necessarily discharge the burden on him to prove due diligence unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his own negligence.

[29] There was no evidence that Mr. Beatty did not know about his suspension.

[30] In fact, there was evidence that he did know that his licence was suspended.

Treatment of the Accused's Statement

[31] When asked to produce his licence, he said "It's suspended".

[32] The presiding Justice of the Peace dismissed this as hearsay deserving of very little weight in the face of the deeming provision in section 52 of the Highway Traffic Act.

[33] That too was an error.

[34] The statement was a clear admission by Mr. Beatty. It was ruled to have been made voluntarily and was properly admitted as evidence.

[35] The Supreme Court of Canada has stated that:

statements made by an accused are admissions by an opposing party and, as such, fall into an exception to the hearsay rule. They are admissible for the truth of their contents.

[36] The statement also went to the state of mind of Mr. Beatty.

[37] According to Professors Paciocco and Stuesser:

Many statements going to a person's state of mind are not hearsay at all. They are admissible, not for their truth, but for the fact that they were said. Only where the statements as to state of mind are going in for their truth is there need to resort to the hearsay exception.

[38] They rely in part on the comments of Doherty J., (as he then was), in R. v. P. (R.):

If those statements permit an inference as to the speaker's state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems arising out of the inference drawing process.

[39] Either way, the statement of Mr. Beatty was before the court as evidence establishing that he knew or, at the very least, believed that his licence was suspended. That belief was quite reasonable in that his licence was in fact suspended at that time.

Remedy

[40] That leaves the question of what remedy, if any, is available here.

[41] Section 121 of the Provincial Offences Act provides:

121. Where an appeal is from an acquittal, the court may by order,

(a) dismiss the appeal; or

(b) allow the appeal, set aside the finding and,

(i) order a new trial, or

(ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law.

[42] That section does not enumerate the instances in which I may allow or dismiss such an appeal and it is necessary to look for guidance from decisions of the Supreme Court of Canada dealing with similar provisions in the Criminal Code.

[43] These cases make it clear that the Crown Appellant has to demonstrate that the verdict would not inevitably have been the same, absent the errors.

[44] Durno J. adopted the same test in the Provincial Offences Act appeal in R. v. Kinch.

[45] I am satisfied that the Crown has demonstrated that the verdict would not inevitably have been the same, absent the errors by the presiding Justice of the Peace.

[46] The evidence proved beyond a reasonable doubt that Mr. Beatty was driving and that, at that time, his licence to drive was suspended. In the absence of any evidence that Mr. Beatty reasonably believed that his licence was not suspended, that was all that was needed to convict Mr. Beatty.

[47] There is therefore no need for a new trial.

[48] I allow the appeal, set aside the acquittal and enter a finding of guilt.

Sentencing

[49] I was provided with nothing to suggest that Mr. Beatty had a prior record for the same offence. Accordingly, I can sentence him as a first offender and impose the minimum fine and minimum licence suspension.

[50] Accordingly, Mr. Beatty is fined $1,000.00. He has nine months in which to pay that fine.

[51] Finally, his driver's licence is suspended for six months.

Released: December 9, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris