Court File and Parties
Ontario Court of Justice
Court File No. 2111-999-13-0096-00
Between:
Her Majesty the Queen Appellant
— AND —
Vito Lamanna Respondent
Court File No. 2111-999-13-0289-00
And Between:
Her Majesty the Queen Appellant
— AND —
Amanda Jane Respondent
Court File No. 2111-999-13-0118-00
And Between:
Her Majesty the Queen Appellant
— AND —
David Caldwell Respondent
Before: Justice D.A. Harris
Heard on: September 29, 2014
Reasons for Judgment on Appeal released: October 21, 2014
Counsel:
- N. Isak, for the Appellant
- T. Walton, for the Respondent, Vito Lamanna
- No one appearing, for the Respondent, Amanda Jane
- No one appearing, for the Respondent, David Caldwell
Reasons for Judgment on Appeal
HARRIS J.:
Introduction
[1] These three appeals were heard together for the following reasons.
[2] All three Respondents were charged with driving while suspended. All three were tried on October 30, 2013 before the same Justice of the Peace. The Respondent Vito Lamanna appeared for his trial and was represented by a licensed paralegal. Neither Respondent Amanda Jane nor Respondent David Caldwell appeared and they were tried in absentia. Their trials took place following that of Mr. Lamanna. In each of the three cases the presiding Justice of the Peace declined to receive into evidence a document tendered by the Appellant pursuant to section 210(7) of the Highway Traffic Act for the purpose of proving that the driver's licence of each Respondent was suspended at the time of the alleged offences. In the case of Mr. Lamanna and that of Mr. Caldwell, she also declined to admit into evidence documents purporting to be their driving records.
[3] The presiding Justice of the Peace dismissed the charges against each Respondent.
[4] The Appellant/Crown appeals against each of those decisions.
[5] While I intend to deal with all three together, it is important to first note the circumstances of each case separately.
Vito Lamanna
[6] Police Constable Mitchell testified that he observed Mr. Lamanna driving a motor vehicle on January 8, 2013.
[7] Crown counsel then attempted to introduce a two-page document under the hand of Robert Fleming, Registrar of Motor Vehicles and the seal of the Ministry of Transportation. This was tendered to prove that Mr. Lamanna's driver's licence had been suspended and that this suspension was in effect on January 8, 2013.
[8] The agent for Mr. Lamanna objected to this on the basis that the second page which purported to be a copy of the Notice of Suspension was not a true copy. Specifically he noted that the bottom line on that page read "Please see reverse side for important information / Veuillez lire les rensignements importants au verso" but that there was no copy of a reverse side.
[9] The presiding Justice of the Peace relied upon the reasons of Justice of the Peace J. Guthrie in R. v. Kramer, and decided that it was "not a true copy because it is an incomplete copy of the original with not having any backside of that document having been photocopied." She was "persuaded that there is a reasonable doubt that there is something missing" and declined to allow the document to be introduced into evidence.
[10] Unfortunately, no one thought to make the proffered document a lettered exhibit so that it might be available for review by an appeal court.
[11] Crown counsel then attempted to introduce Mr. Lamanna's driving record in order to prove that his licence had been suspended.
[12] The presiding Justice of the Peace relied upon the comments of Tetley J. in R. v. Lupo and ruled that "those particular documents are not going to be accepted by the Court because they deal with prior convictions of this particular defendant and it would be prejudicial to the fair trial interests of the defendant for the Court to accept that before the Court has made a ruling in terms of guilt or innocence."
[13] Following this, she dismissed the driving while suspended charge against Mr. Lamanna. She did convict him of drive motor vehicle - no currently validated permit. That offence plays no part in this appeal.
[14] However, during the sentencing proceedings with respect to this latter charge, the presiding Justice of the Peace did receive in evidence a certified copy of Mr. Lamanna's driving record which showed, amongst other things, that Mr. Lamanna's driver's licence had been suspended re unpaid fine on May 24, 2012 and reinstated on January 11, 2013 (three days after the alleged driving while suspended offence).
[15] Prior to the hearing of the appeal against this decision, the Appellant brought a motion to introduce the two-page document referred to above as fresh evidence. The agent for Mr. Lamanna agreed that this document should have been before me and I directed that the document would in fact be placed before me so that I would be aware of what exactly the presiding Justice of the Peace had refused to receive in evidence.
Amanda Jane
[16] Ms. Jane did not appear for her trial which proceeded in her absence.
[17] Police Constable Boyd testified that he observed Ms. Jane driving a motor vehicle on March 19, 2013.
[18] The presiding Justice of the Peace relied upon her reasoning in the Lamanna case and declined to receive a similar two-page document in evidence in this case.
[19] A significant difference here was that the document was made an exhibit in order to identify it later.
[20] The presiding Justice of the Peace dismissed the driving while suspended charge against Ms. Jane. She did convict her of driving a motor vehicle without insurance. That offence plays no part in this appeal.
David Caldwell
[21] Mr. Caldwell did not appear for his trial which proceeded in his absence.
[22] Police Constable Williams testified that she observed Mr. Caldwell driving a motor vehicle on January 24, 2013.
[23] The presiding Justice of the Peace again relied upon her reasoning in the Lamanna case and declined to receive either a similar two-page document or a driving record in evidence in this case.
[24] The two-page document was not made an exhibit in order to identify it later.
[25] The presiding Justice of the Peace dismissed the driving while suspended charge against Mr. Caldwell. She did convict him of operate motor vehicle and fail to have insurance card in vehicle, operate motor vehicle without insurance and knowingly use a false insurance card. Those three offences play no part in this appeal.
[26] The presiding Justice of the Peace did receive in evidence a certified copy of Mr. Caldwell's driving record during the sentencing proceedings. This record indicated that Mr. Caldwell's driver's licence had been suspended re unpaid fine on June 8, 2012 and that the suspension was still in effect as of June 7, 2013.
Law
[27] Section 210(7) of the Highway Traffic Act states:
(7) A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.
[28] This requires a court to receive in evidence (1) a copy of any document, and/or (2) any statement containing information from the records required to be kept under the Highway Traffic Act.
[29] The documents proffered by the Appellant in these three cases purported to include both of these components. The presiding Justice of the Peace however only addressed the former and made no mention of the second component.
[30] I will deal with both.
[31] First, however, I will yet again address the issue of what must be proven, and by whom, in a driving while suspended case.
[32] The Supreme Court of Canada in R. v. Sault Ste. Marie determined that all regulatory offences fell into one of three classifications.
[33] 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.
[34] The effect of this was 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.
[35] The Crown did prove that each Respondent drove a motor vehicle. The Crown then asked the court to receive in evidence documents which would have proven that the driver's licence of each Respondent had been suspended at the relevant time. Had those documents been received in evidence, the Crown would have discharged its burden. It would have then been open to each Respondent 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.
[36] Each Respondent would have had 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 then rebut the presumption set out in section 52(2) of the Highway Traffic Act deeming the Respondent to have received the Notice of Suspension.
[37] That would not, however, have been the end of the matters here.
[38] It was recognized by both MacDonnell J. in R. v. Montgomery, supra and by the Ontario Court of Appeal in R. v. Miller, supra 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".
[39] MacDonnell J. goes on to state "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".
[40] I am aware of the decision of R. v. Bellomo where Fairgrieve J. concluded that the proper test in driving while suspended cases was whether the court had a reasonable doubt as to whether the defendant was aware of the suspension.
[41] The reasoning from that case was also adopted by Tetley J. in R. v. Lupo, supra.
[42] Those two decisions however are contrary to the direction of the Ontario Court of Appeal in R. v. Miller, supra, that the onus would be on each Respondent to prove, on a balance of probabilities that he did not know of his/her suspension and that his/her lack of knowledge was not due to his/her own negligence.
Analysis
[43] As I just stated, Crown witnesses provided evidence that each Respondent had been operating a motor vehicle.
[44] Crown counsel then attempted to introduce documentary proof of the suspension of their respective driver's licences pursuant to section 210(7) of the Highway Traffic Act.
[45] In each case the presiding Justice of the Peace excluded that evidence on the basis that she was not satisfied that the second page of the proposed document was a "true copy" of the original.
[46] This constituted reversible error. The Crown did not have to prove that in order to have the document received in evidence.
[47] Section 210(7) provides that a copy of a document shall be received in evidence in all courts if:
(1) It is a copy of a document filed in the Ministry of Transportation under the Highway Traffic Act, and
(2) It purports to be certified by the Registrar of Motor Vehicles under the seal of the Ministry as being a true copy of the original.
[48] Section 210(7) further provides that the copy of such a document shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy and is proof, in the absence of evidence to the contrary, of the facts contained in the copy.
[49] The following comments refer to the Lamanna and Jane cases only because I do not have a copy of the documents from the Caldwell case.
[50] In both cases, the first page of the document was purported to be under the hand of Robert Fleming, Registrar of Motor Vehicles and under the seal of the Ministry of Transportation.
[51] Each contained the words "I hereby certify from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act that the driver's licence of [each Respondent] was suspended" and that "the said suspension was in effect on" the alleged offence dates.
[52] Each further certified that a notice of each suspension, "a copy of which is annexed," was forwarded by mail to each Respondent at the latest address on the records of the Ministry. He finally certified that "the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation".
[53] This satisfied all of the prerequisites set out in section 210(7) which did not require Crown counsel to further prove that the attached document was in fact a true copy of the original. It was sufficient if the Registrar certified it to be a true copy.
[54] Once these prerequisites were met, section 210(7) is mandatory in directing that the copy of the document "shall be received in evidence".
[55] Any "evidence to the contrary" does not change that fact. Such evidence to the contrary can only affect the use that may be made of the copy after it has been received in evidence by the court.
[56] I point out here that, in each case, the attached second page was included only to provide a copy of the actual Notice of Suspension that had been sent to each Respondent.
[57] In each case the first page included statements that each Respondent's driver's licence was suspended as of the date of the alleged offence, and that a notice of the suspension had been sent by mail to each Respondent at the latest address on the records of the Ministry.
[58] Section 210(7) also mandates that such statements shall be received in evidence if the prerequisites set out above are met, as was the case in all three trials here.
[59] The first page therefore provided evidence that the driver's licence of each Respondent had been suspended, and that each Respondent had been notified of that fact.
[60] In each case it also stated the date on which the notice had been sent by mail to both Respondents. In both cases, this had occurred more than seven days before the alleged offence dates. Accordingly the first page also satisfied the provisions of section 52(2) of the Highway Traffic Act with respect to the deemed date of service.
[61] So, even accepting the reasoning of the presiding Justice of the Peace, the first page should have been received in evidence.
[62] The second page was unnecessary for the Crown to prove its case against the Respondents. However, for the reasons I have set out above, it too should have been received in evidence in each case.
[63] Had the proffered documents been accepted in evidence, the Crown would have discharged its burden of proving that both Respondents had driven a motor vehicle while that Respondent's licence to drive was suspended.
[64] As I stated above, I did not receive a copy of the document which was not received in evidence in the Caldwell case. In the absence of any other evidence, I would have no basis for being satisfied that Mr. Caldwell's driver's licence was suspended at the relevant time. Such other evidence does exist however in the form of his driving record which was received in evidence, albeit during the sentencing phase with respect to another charge.
[65] The question then is whether that driving record could have been received in evidence in order to prove that Mr. Caldwell's licence was in fact suspended.
[66] In order to understand what happened in the Caldwell case, however, it is necessary to revisit what happened during the Lamanna trial.
[67] After having failed to have the one document received in evidence, Crown counsel attempted to introduce Mr. Lamanna's driving record for the purpose of proving that Mr. Lamanna's licence had been suspended.
[68] The presiding Justice of the Peace refused to accept that document into evidence on the basis that "it would be prejudicial to the fair trial interests of the defendant for the Court to accept that … ".
[69] In the Caldwell case, Crown counsel stated that he would be relying on documents similar to those rejected in the Lamanna case and the presiding Justice of the Peace indicated that her decision would be the same.
[70] I know what the documents referred to as driving records were in both cases, and I know what information they contained because the driving records of both were received in evidence during the sentencing phase with respect to the other charges against Mr. Lamanna and Mr. Caldwell.
[71] The first page in each case contained the statement "I hereby certify that the paper or papers annexed hereto constitute true statements containing information from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act ".
[72] Each purported to be under the hand of Robert Fleming, Registrar of Motor Vehicles and under the seal of the Ministry of Transportation.
[73] This satisfies the prerequisites contained in section 210(7) and these documents which consisted of the first page and the attached driving record should have been received in evidence proving, "in the absence of evidence to the contrary", the facts contained in them.
[74] The driving record of Mr. Lamanna indicated that his driver's licence had been suspended re unpaid fine on May 24, 2012 and reinstated on January 11, 2013. It was relevant evidence proving that his driver's licence was suspended on January 8, 2013, the day that he was observed to be driving.
[75] The driving record of Mr. Caldwell indicated that his driver's licence had been suspended re unpaid fine on June 8, 2012 and that the suspension was still in effect as of June 7, 2013. It was relevant evidence proving that his driver's licence was suspended on January 24, 2013, the day that he was observed to be driving.
[76] It was an error for the presiding Justice of the Peace to exclude this otherwise admissible evidence on the basis of an incorrect belief that "it would be prejudicial to the fair trial interests of the defendant".
[77] Any judicial officer is capable of disabusing his or her mind of any prejudicial material and of using the evidence solely for a proper purpose. The presiding Justice of the Peace in this case was a very experienced judicial officer and I have no doubt with respect to her ability to have received a driving record in evidence without any prejudice to Mr. Lamanna or to Mr. Caldwell.
[78] Reference was made by the presiding Justice of the Peace to R. v. Lupo, supra. The comments made in that case however were not applicable here. In R. v. Lupo, Tetley J. held that the driving record had been tendered in order to prove something that it was incapable of proving. It was in that context that he stated that the receiving of that document was highly prejudicial and ought not to have been permitted.
[79] That was very different from the cases here where the driving records were being tendered in order to prove an essential element of the Crown's case and in that regard, were of substantial probative value.
Conclusion
[80] Each appeal is allowed.
[81] In the case of Vito Lamanna, a new trial is ordered. That will allow him the opportunity to advance any other defences which might have been open to him.
[82] The situation is different with respect to Amanda Jane and David Caldwell. Neither appeared for trial. Neither elected to advance any defence. Had the Ministry documents been received in evidence, the Crown would have met its burden in each case and findings of guilt would have been warranted and convictions would have been registered. Accordingly, I am substituting findings of guilt and convictions will be registered against Amanda Jane and David Caldwell.
[83] With respect to each of them, I am imposing the minimum fine, being $1,000 and I am allowing them six months in which to pay the fine plus any costs and surcharges.
[84] In addition, their driver's licences are suspended for six months consecutive to any other period for which the licence is suspended.
Released: October 21, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris