Information and Parties

Information No.: F12-4217

Ontario Court of Justice (at St. Catharines, Ontario)

Between:

Her Majesty the Queen

• and -

Julia Helen Martinovs

Counsel: Mr. G. Leach for the Crown Mr. D. Hurren for Ms. Martinovs

Reasons for Judgment on a Non-Suit Motion

NADEL, J.:

Introduction

[1] On October 11, 2012, Julia Martinovs was charged with driving while disqualified. At the conclusion of the Crown's case-in-chief the defence submitted that there was no evidence called from which a jury acting reasonably and under proper instructions could find that the defendant knew that she was disqualified from operating a motor vehicle on that date.

The Evidence

[2] At about 5:00 p.m., Officer Neufeld recognized the vehicle Martinovs was driving on the date. He had seen it previously parked at 342 Pleasant Avenue North, in Fort Erie. He was also aware that Martinovs was a "prohibited" driver in Ontario on that date. He followed her a short distance until she turned into the driveway of 342 Pleasant Avenue where he arrested her for driving while disqualified.

[3] In lieu of a driver's licence Martinovs identified herself with an Ontario photo OHIP card showing a date of birth of September 5, 1985. Neufeld released her at the scene of the arrest but before doing so he served her with a s. 260(6) notice of intention to introduce documentation purporting to prove that she was a prohibited or disqualified driver. Martinovs made no utterances or admissions that she knew she was a disqualified driver on the date of her arrest.

[4] The following items were exhibited in or conceded to be part of the Crown's case:

• the original information No. F10-4614 which documented that Martinovs had pled guilty on December 14, 2010, to a count of impaired driving;

• the 15-month Prohibition Order made by Madam Justice D.T. Vyse on that date;

• Certificates under the hand and seal of the Registrar of Motor Vehicles which stated, inter alia, that:

  1. Martinovs' driver's licence was suspended March 14, 2012 for failing to complete the Remedial Program;

  2. Martinovs' date of birth was September 5, 1985;

  3. Martinovs' latest address was 342 Pleasant Ave. N., Ridgeway, Ontario;[1]

  4. A notice of this suspension was forwarded to Martinovs by mail (sic) on March 6, 2012.

The Defence Submissions

[5] Mr. Hurren submits that s. 260(4) requires that a notice of disqualification referred to in s. 259(5)(b), {a provincially-imposed driving suspension or restriction consequent upon a Criminal Code conviction,} must be sent by registered or certified mail and that was not done so the deemed notice provisions of that section have no application to Martinovs. Further, Martinovs made no admission or utterance from which a fact-finder could infer that she knew she was a disqualified driver on the occasion.

[6] Finally, the prohibition order made was for 15 months as of December 14, 2010. That order expired on March 14, 2012 and Martinovs was driving on October 11, 2012. Given this timeline, the inapplicability of the s. 260(4) deeming provision on these facts to impute knowledge to Martinovs that she was disqualified from driving and the complete absence of any admission from Martinovs that she knew that she was disqualified from driving on October 11, 2012, the defence submitted that there was no evidence of mens rea and the charge should be summarily dismissed.

Judgment

[7] The motion for a non-suit on the issue of knowledge is dismissed for the following reasons.

[8] Martinovs signed and acknowledged the Prohibition Order made against her by Judge Vyse December 14, 2010. The original copy of that order was presented to the Court and on consent its contents were duly noted. Those contents include Martinovs' acknowledgment that the order was read by or to her, that she received a copy of the order and that it was explained to her and that she understood its terms and conditions.

[9] In addition to the Molina warning required by s. 259(4) and s. 260(1)(c), the Prohibition Order stated:

"TAKE NOTICE THAT IF you have been prohibited from operating a motor vehicle, the Province of Ontario will suspend your driver's licence under the Highway Traffic Act for a period of time that may be different or longer than the length of the prohibition order. Please see the second page of this order for information on provincial periods of suspension."

[10] The second page of the Prohibition Order acknowledged by Martinovs contains, inter alia, the following information:

"If you were convicted under section 253 … of the Criminal Code, s. 41.1 of the Highway Traffic Act requires that you complete a Remedial Measures Program for licence reinstatement. The Ministry of Transportation (MTO) will send you a notice of suspension, which will indicate your remedial requirement. To register in the remedial program, call 1-888-814-5831. Register immediately to prevent delays in getting your licence reinstated as it may take 11 months to complete the entire remedial program."

[11] In my view Martinovs' acknowledgment of the contents and effect of the Prohibition Order, including the portions quoted above at paragraph [9], taken together with the Certificate of the Registrar of the MTO that Martinovs' driver's licence was suspended on March 14, 2012 for failing to complete the Remedial Program is some evidence from which a jury acting with reason under proper instructions could find that she knew she was a disqualified driver when she drove on October 11, 2010. That by itself is a sufficient reason to dismiss the application for a non-suit.

[12] In addition, the Crown may "rely upon the wording of s. 219(2) of the Highway Traffic Act to constitute prima facie evidence of the defendant's mens rea herein and at least succeed in blocking the non-suit motion[.] … [T]he Crown may so rely on the deemed knowledge that all persons have of the Acts of the Legislature including s. 41 of the Highway Traffic Act which imposes the driver's licence suspension here, and s. 219(2) of the same Act which makes such a suspension valid even without proof of the statutory caution." (see B.E. Pugsley J.'s ruling in R. v. Ryan, [2007] O.J. No. 3580 (O.C.J.) at [8])

[13] Likewise, in addition to the information set out at paragraph [9] that was contained in the Prohibition Order and that the defendant has acknowledged receiving and understanding, the Crown may rely upon the defendant knowing the contents of sections 41.1(1), 41.1(3), 41.1(4) and 52(1)(b) of the Highway Traffic Act, pursuant to the ratio in Ryan. On the evidence before me from Exhibit 2, notice of the suspension of Martinovs' driver's licence for not completing the Remedial Program was sent by ordinary post to her on March 6, 2012 to her address at 342 Pleasant Avenue North in Ridgeway, Ontario. By s. 52(1)(b) of the Highway Traffic Act, she is deemed to have notice of that suspension seven days after that mailing (subject to other evidence on the point.)

[14] Finally, there is no doubt that a provincially-imposed driver's licence suspension or restriction for failure to complete remedial measures is a disqualification within the meaning of s. 259(5)(b)(i). (see R. v. Clark, 2000 ABCA 246; leave to appeal to the S.C.C. dismissed without reasons at [2000] S.C.C.A. No. 560)

[15] For these reasons, the application for a non-suit is dismissed.

Released at St. Catharines, Ontario this 19th day of December 2013

J.S. Nadel, (O.C.J.)

[1] Ridgeway is a suburb of Fort Erie, Ontario.