Court Information

Court: Ontario Court of Justice – Newmarket Date: 2014-09-25

Between: Her Majesty the Queen — and — Carlos Samaniego/Espinoza

Before: Justice Joseph F. Kenkel

Heard: September 25, 2014 Judgment: September 25, 2014

Counsel:

• Mr. Martin Dionne for the Crown
• Mr. John Navarette for the accused

Decision

KENKEL J.:

Introduction

[1] A Ministry of Transportation enforcement officer conducting a regulatory inspection of a dump truck discovered that the accused was required to have an ignition interlock installed as a condition of operating the vehicle. There was no interlock installed in the truck.

[2] The defence concedes the Crown has proved that the accused drove the truck, that he was required by law to have an ignition interlock installed and that there was no interlock in that truck. The sole remaining issue is whether the Crown has proved the mens rea of the offence where the accused says that over a year had passed since his conviction and since the Criminal Code prohibition had expired he was unaware of the further interlock requirement.

Drive Disqualified

[3] Section 549(5) of the Criminal Code prohibits a person from operating a motor vehicle while disqualified from doing so. Disqualification in this context includes a prohibition under that part or "any other form of legal restriction of the right or privilege to operate a motor vehicle" under the law of a province in respect of a criminal conviction for a drinking and driving offence.

[4] On March 15, 2011, Mr. Samaniego/Espinoza (Mr. Samaniego per his abbreviation) was convicted of Refusing to Provide a Breath Sample contrary to s. 249 of the Criminal Code. That conviction and the driving restrictions that flowed from it engage s. 549(5).

[5] At the time he was sentenced for refuse he was served a Notice of Prohibition. A certified copy of that prohibition was marked as Exhibit #2. The Notice of Prohibition includes advice to the person sentenced that the provincial Highway Traffic Act requires that he or she complete a Remedial Measures Program prior to license re-instatement. Just below that section the same prohibition form also advises that pursuant to s. 41.2 of the Highway Traffic Act an Ignition Interlock condition applies upon reinstatement.

[6] Mr. Samaniego testified that upon release from the penitentiary he completed a one day "back on track" remedial program. He did not recall being told by anyone in that program that there is also an interlock requirement. He did not recall whether he read or paid attention to the prohibition conditions when he signed that form. He didn't know how he became aware of the need for the remedial program but not aware of the interlock component.

[7] Ministry records confirm that shortly after completion of the remedial program Mr. Samaniego was issued a new license. The evidence of the Ministry of Transportation officer confirms common experience that when a license is changed or re-issued at a Service Ontario location, a paper temporary license is issued until the plastic card is mailed from a central authority to the driver's permanent address. That paper license would contain any current restrictions.

[8] The OPP officer who arrested Mr. Samaniego for this offence photocopied the driver's license the accused was using. The evidence shows that Mr. Samaniego did not surrender the license issued to him on February 14, 2014. Instead he used his prior license issued June 15, 2010. Mr. Samaniego's testimony that he remembered surrendering that license at the time of his Refuse conviction is not credible given his repeated lack of memory for most other surrounding details and the fact that the license was still in his possession on March 14, 2014. Mr. Samaniego's evidence as to the new license issued was vague and he could not remember whether he received a paper temporary permit or if he was directly issued a plastic card. He provided no explanation for using the prior card that should have been surrendered in 2011.

[9] The only reasonable inference on all of the evidence is that the accused was aware of the interlock condition and had a recently issued temporary license bearing that restriction, but was unable or unwilling to have that device installed in the company's commercial truck. He still had his old license which bore an expiry date of May 28th, 2014 so he chose to use that license to regain his job as a truck driver as it would not show the interlock restriction.

Conclusion

[10] I find that the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Released: September 25, 2014

Signed: Justice Joseph F. Kenkel