Court File and Parties
Court File No.: 2111-999-11-3710-00
Date: 2013-03-01
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mark MacLeod
Before: Justice D.A. Harris
Heard on: January 14, 2013
Reasons for Judgment delivered: March 1, 2013
Counsel:
- A. Balachandran, for the Appellant, Mark MacLeod
- S. A. McCartan, for the Respondent, Her Majesty the Queen
Reasons for Judgment
HARRIS J.:
Introduction
[1] Mark MacLeod was charged with driving while suspended contrary to the Highway Traffic Act of Ontario. Following a trial, the presiding Justice of the Peace convicted Mr. MacLeod.
[2] This is an appeal against that conviction.
[3] The appeal is dismissed for the following reasons.
Facts
[4] The presiding Justice of the Peace heard evidence that Mr. MacLeod was operating a motor vehicle on June 12, 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 Exhibit 1.
[6] The attached certificate indicated that the Notice of Suspension had been mailed to "MARK WILLIAM MAC LEOD at 1401 Progressive Ave, Niagara on Lake, Ontario which then was the latest address on the records of the Ministry". It had been mailed on March 29, 2011 and the suspension was in effect on June 12, 2011.
[7] By virtue of s. 52(2) of the Highway Traffic Act, Mr. MacLeod was deemed to have received that document on April 5, 2011 unless Mr. MacLeod established "that he did not, acting in good faith, through absence, accident, illness or other cause beyond his control, receive the notice".
[8] Mr. MacLeod testified that he did not receive the document until a couple of weeks after he had been stopped by the police officer.
[9] With respect to his mail delivery, he testified that there was a postal strike at one point. He believed that it was going on at the time of this offence. It was somewhere around the time that he was stopped.
[10] In any event, he did not know that his licence had been suspended prior to being stopped.
[11] The presiding Justice of the Peace convicted Mr. MacLeod.
Trial Judge's Reasons
[12] In doing so she said:
The actus reus as I said has been acknowledged in this. It has been proven beyond a reasonable doubt that he was driving while his licence was suspended.
It is then [open] to defence to prove due diligence on the balance of probabilities. With regard to due diligence there are a few problems with the evidence of defence. Originally he was going to plead and forgot, so there's no question in my mind that he knew he got the ticket. And then he forgot about it again. So, once when he was going to enter his plea and once when he simply forgot to pay it.
Those two things would not be the hallmarks of a due diligence defence on the balance of probabilities, either to avoid having his licence suspended or addressing a suspension.
Defence then says I didn't know I'd be suspended if I got a ticket. This falls dangerously close to being ignorant of the law which, of course, is no excuse.
Taking that logic of defence that he did not know he would be suspended, taking that logic one step further, if police officers issue tickets and there was no mechanism set in place by the Province to enforce those tickets and fines it would lead to a ludicrous outcome. Officers would be issuing tickets and everyone would be ignoring them because they would think that there would be no consequence for that.
A final point here is that defence says that there was a mail strike, but there is no evidence led with regard to that mail strike. The onus is on defence to prove in order to make out due diligence on the balance of probabilities that there was a mail strike directly affecting him at this time or at bare minimum, even a mail strike, … rotating through his neighbourhood or something like that.
The effort for due diligence does not have to be perfect. That is not the standard. The effort is on the balance of probabilities that somebody was duly diligent, but in my view, in the circumstances of Mr. MacLeod, I find that there was no effort at all. He forgot once, he forgot twice and then there was a mail strike which does not add up to due diligence.
It is a fact then that Mr. MacLeod is operating a motor vehicle on a highway on the day that he was stopped by Constable Choy and that his licence to drive was suspended at the time.
There will be a finding of guilt and a conviction will be registered.
Grounds of Appeal
[13] Counsel for the appellant argued that the presiding Justice of the Peace erred in two ways.
[14] Firstly, she erred in finding that Mr. MacLeod had not proven on a balance of probabilities that there had in fact been a mail strike.
[15] Secondly, she erred in finding that Mr. MacLeod had failed to establish on a balance of probabilities that he had exercised due diligence.
[16] Combining both of these arguments then, she erred in finding that Mr. MacLeod had failed to establish on a balance of probabilities that he did not otherwise know of the suspension and that his lack of knowledge was not due to his negligence.
[17] I disagree. The presiding Justice of the Peace did not err on either point.
Legal Framework for Strict Liability Offences
[18] I have reviewed the law regarding who has to prove what in a driving while suspended case on previous occasions. I will however summarize it again here.
[19] 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.
[20] 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.
[21] The effect of this is set out in R. v. Montgomery where MacDonnell J. stated at para. 11 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.
[22] 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. MacLeod
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.
[23] So one thing that Mr. MacLeod could have done was to prove, on a balance of probabilities, "that he did not, acting in good faith, through absence, accident, illness or other cause beyond his control, receive the notice". That would have rebutted the presumption set out in s. 52(2) of the Highway Traffic Act.
[24] That would not, however, have been the end of the matter.
[25] It is 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".
[26] 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".
[27] I am aware of the decision of R. v. Bellamo, [1995] O.J. No. 313 (Ont. C.J.) 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.
[28] The reasoning from Bellamo was also adopted by Tetley J. in R. v. Lupo, [2008] O.J. No. 5591 (Ont. C.J.).
[29] These decisions however are contrary to the ruling by the Ontario Court of Appeal in Miller where it is clearly stated that the onus would be on Mr. MacLeod 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.
Application to the Facts
[30] So did Mr. MacLeod meet that onus here?
[31] As I stated earlier, Mr. MacLeod testified that he did not receive the Notice of Suspension until a couple of weeks after he had been charged with this offence. He suggested that this was a result of a postal strike around that time.
[32] The presiding Justice of the Peace rejected that explanation stating:
A final point here is that defence says that there was a mail strike, but there is no evidence led with regard to that mail strike. The onus is on defence to prove in order to make out due diligence on the balance of probabilities that there was a mail strike directly affecting him at this time or at bare minimum, even a mail strike, … rotating through his neighbourhood or something like that.
[33] During submissions before me, counsel for Mr. MacLeod gave me a copy of the Restoring Mail Delivery for Canadians Act, S.O. 2011, c.17.
[34] Counsel argued that this legislation proves that there was a postal strike at the relevant time. He argued that the presiding Justice of the Peace could and should have taken judicial notice of this legislation and found it to corroborate the evidence of Mr. MacLeod.
[35] His argument is flawed however.
[36] The statute in question did in fact order the postal workers back to work effective June 26, 2011.
[37] The statute does not however state the nature of the work stoppage that existed at the time. It does not state when this work stoppage began. It does not state anything that would confirm that the work stoppage had necessarily interfered with Mr. MacLeod receiving the Notice of Suspension from the Ministry of Transportation or affected him in any way at all.
[38] To find some of that information, I did a simple "Google" search and discovered that the postal workers began rotating strikes on June 3, 2011 and that Canada Post then locked the postal workers out on June 15, 2011. The back to work legislation changed this situation as of June 26, 2011.
[39] So there was no strike at all for more than two months following March 29, 2011 when the Notice of Suspension was mailed to Mr. MacLeod. Mr. MacLeod offered no other explanation for why he might not have received the notice during that time.
[40] There were rotating strikes for 12 days. Mr. MacLeod did not provide any indication during his evidence as to when, if ever, mail delivery to his residence was affected by a rotating strike.
[41] I note further that once I became aware that rotating strikes had taken place during those 12 days, I was better able to understand the comments of the presiding Justice of the Peace when she said:
There are several cases that came before the Court recently focusing on the defence of a mail strike or a revolving mail strike taking place in 2011, and this Court has judged each one on its merits by listening carefully to the evidence of both sides.
[42] Clearly the presiding Justice of the Peace had a better grasp of the facts regarding any postal strike than counsel did. Just as clearly she was not requiring that Mr. MacLeod prove that there was a postal strike. She was requiring that he establish "on the balance of probabilities that there was a mail strike directly affecting him at the time".
[43] I have taken note of the vagueness of Mr. MacLeod's evidence regarding a postal strike. I have noted that, if he is telling the truth, then the Notice of Suspension was not delivered during the two months preceding the strikes, or during the 12 days in which strikes occurred on a rotating basis only. It was however delivered a couple of weeks after he was stopped by the police, which would work out to be about the same time that the back to work legislation was enacted.
[44] I have also noted, as did the presiding Justice of the Peace, that Mr. MacLeod also testified that when he got the ticket initially, he was going to plead not guilty but he forgot to do that. It slipped his mind. He forgot to pay it.
[45] He was not then aware that an unpaid ticket would result in a licence suspension.
[46] He gave no evidence however of any effort on his part to determine what had happened with respect to the ticket or what the legal ramifications might be.
Standard of Review on Appeal
[47] Section 120 of the Provincial Offences Act sets out my powers on an appeal against conviction stating:
120.--(1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order,
(a) may allow the appeal where it is of the opinion that,
(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground, there was a miscarriage of justice; or
(b) may dismiss the appeal where,
(i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of an information, was properly convicted on another count or part of the information,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or
(iii) although the court is of the opinion that on any ground mentioned in subclause (a) (ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
[48] Case law makes it clear that, in my capacity as a Provincial Offences Appeals Court Judge, I must not re-try a case and substitute my own view. My function is to determine on the whole of the evidence whether the evidence is so weak that the verdict of guilty is unreasonable, whether the finding of guilt resulted from a misapprehension of the law or whether a miscarriage of justice has occurred.
Conclusion
[49] I find in all of these circumstances that there was nothing unreasonable about the presiding Justice of the Peace finding that Mr. MacLeod had failed to prove due diligence on a balance of probabilities. The presiding Justice of the Peace most definitely did not misapprehend the law. Finally, there was no miscarriage of justice.
[50] The appeal is dismissed.
Released: March 1, 2013
Signed: "Justice D.A. Harris"
Justice D.A. Harris