Court Information
Ontario Court of Justice
Date: January 15, 2016
Court File No.: Central East Region (Durham)
Parties
Between:
Her Majesty the Queen
— AND —
Ahmad Emam-Nazar
Judicial Officer and Counsel
Before: Justice F. Javed
Heard on: June 11, July 15, October 28, 2015
Reasons for Judgment released on: January 15, 2016
Counsel:
- N. Trbojevic — counsel for the Crown
- M. Fahmy — counsel for the defendant Ahmad Emam-Nazar
F. JAVED J.:
Introduction
[1] The defendant Ahmad Emam-Nazar is charged with the offence of Drive Disqualified contrary to s. 259(4) of the Criminal Code. He was driving a motor vehicle on highway 401 in Pickering when he was bound by a provincial suspension preventing him from doing so. The Crown called one witness, the investigating officer, Police Constable Ian Jolicoeur of the Durham Regional Police Service. Mr. Emam-Nazar testified in his defence.
Procedural History
[2] Despite being a straightforward matter, the litigation has a protracted history. At trial, Mr. Fahmy objected to the admissibility of documentary evidence tendered by the Crown. On July 15, 2015, in a written judgment, I ruled several items to be admissible on the basis of both the common law principles and the Canada Evidence Act (CEA). In addition, other documentary exhibits were tendered on consent.
The Position of the Parties
[3] Mr. Fahmy submits that the Crown hasn't proven that Mr. Emam-Nazar had notice of the disqualification and/or whether he knew he was suspended at the time of driving. He argues that the court should accept his evidence that he didn't know he was suspended. Alternatively, he was mistaken in law, thus the doctrine of officially induced error applies to excuse his conduct.
[4] Mr. Trbojevic submits that I should reject the evidence of Mr. Emam-Nazar as to his lack of knowledge that he was suspended. Alternatively the court should find that he was reckless and/or willfully blind given his history with the MTO. Further, officially induced error does not apply.
The Evidence
(i) Account of Mr. Emam-Nazar
[5] Mr. Emam-Nazar is 31 years old and president of a company that designs kitchens and luxury homes. He has lived at 24 Jaguar St. in Scarborough since July, 2005. Since that time, he has not changed his address. This is borne out by the MTO records in exhibit 3(a). English is his third language, however, he conducts his business in english and has a "fair" command of the language.
[6] He acknowledged having an extensive driving history with the MTO. He drives frequently for business related purposes and counts on having a license. Without it, he would not be able to run his business. He could not recall all the entries on his driver's abstract but confirmed that while his license was suspended on fifteen occasions, he was only convicted once for driving while under suspension in 2002, under the Highway Traffic Act (HTA).
[7] Mr. Emam-Nazar's evidence spanned a few days. He was extensively cross-examined by Mr. Trbojevic and in particular, on the steps he took to renew his license each time it was suspended. Clearly, Mr. Trbojevic's purpose was to paint him as an unbelievable historian or at the very least, reckless about his position that he didn't know he was suspended. To place this part of his evidence in context, I propose to reproduce this aspect of the MTO records below. Certified copies of these records were entered as exhibit 2(b). Mr. Fahmy tendered similar records, albeit not certified copies, as exhibit 3(a).
| Date of Suspension | Date of Reinstatement |
|---|---|
| March 7, 2001 | July 31, 2001 |
| January 18, 2002 (for HTA offence of Drive Under Suspension). Suspended until July 18, 2002. | July 18, 2002 |
| July 12, 2005 (unpaid fines) | September 8, 2005 |
| September 8, 2006 (unpaid fines) | February 7, 2007 |
| November 23, 2007 (unpaid fines) | May 21, 2008 |
| May 30, 2008 (ADLS until August 28, 2008) | August 28, 2008 |
| March 2, 2010 | March 10, 2010 |
| March 17, 2010 (administrative until March 20, 2010) | March 20, 2010 |
| October 28, 2010 (unpaid fines) | December 23, 2010 |
| March 4, 2011 (ADLS until June 2, 2011) | April 26, 2011 (unpaid fines) |
| July 25, 2011 | — |
| September 10, 2011 (ADLS until December 9, 2011) | December 9, 2011 |
| March 2, 2012 (Over 80 until March 2, 2013) | — |
| June 19, 2012 (Over 80 until June 19, 2015) | — |
| January 9, 2013 (unpaid fines) | — |
| November 9, 2013 (alleged offence date) | — |
[8] Mr. Emam-Nazar agreed that when his license was suspended for the first time he received a notice of this at his home, which at the time, was an address on Dawes Rd. in Toronto. He "believed" he paid a reinstatement fee to have it reinstated. When asked about other suspensions, spanning some thirteen years, he couldn't remember the sequence of events. However, he did have some memory of physically going to the MTO shortly after receiving a notice to pay unpaid fines to have his license reinstated.
[9] In or around 2012, his business started to take off. Leading up to 2012, each time his driver's license had been suspended, it was eventually reinstated – either on its own or more likely by him attending at the MTO to pay a reinstatement fee. This resulted in several duplicates of his license but he acknowledged that only one driver's license would be valid at any given time. He never paid attention to the "issuing date but rather only the expiry date".
[10] When asked about receiving letters from the MTO, he stated: "usually if I got a letter, I took care of it". He added, this wasn't always the case as sometimes, he didn't get a letter from MTO. He thought this happened "about two times". On the second day of his cross-examination, this changed to "I think it was more than two times or three times".
[11] He was also questioned about paying unpaid fines. His evidence was in 2010 when he started his business, he realized the importance of being able to drive so he took less risks about not paying unpaid fines. Prior to 2010, he candidly acknowledged taking more risks of not paying them. Early in his business, his expenses were high and he had to worry about cash flow issues, thus, he was more prepared to take risks. This changed as his business matured. Regardless, when he received a notice from the MTO, his general practice was to do something about it which meant either going to court (to dispute the offence) or the MTO to pay the fines.
[12] On March 4, 2011 he recalled having his license suspended for 90 days as an administrative driving license suspension (ADLS). This was a significant event as it was for a criminal, not traffic related matter. On April 26 2011, it was suspended again for unpaid fines. He recalled going to the MTO to have it reinstated. On September 10, 2011, his license was administratively suspended a second time, again for a criminal matter. By the end of 2011, when his ADLS suspension expired, he got his license back but couldn't recall if he paid a $10.00 reinstatement fee. Exhibit 2(b) confirms that on December 9, 2011, his license was reinstated. He was aware that he had to attend at the MTO to have it reinstated.
[13] Given his involvement with the MTO, he had several copies of his driver's license. He couldn't recall if they were all submitted to the MTO. When he received a license, he didn't pay close attention to the issuing date. His focus was on the expiry date. Exhibit 2(b) confirms that on March 17, 2011, MTO received a plastic copy of his driver's license. I can reasonably infer that this was sent to the MTO by the police after his first ADLS suspension. He agreed that as of July 25, 2011, he had been issued a replacement license. An amended license was issued on January 16, 2012 and again, MTO was sent a driver's license on February 8, 2012. There is no triggering mechanism for the return of this license (such as police involvement in February 2012) thus I can reasonably infer it was Mr. Emam-Nazar who sent it back. Having said that, it's unclear as to whether the license that was returned was the same one that was issued or a previous copy that was no longer valid.
[14] On March 4, 2011, Mr. Emam-Nazar was charged with the offence of over 80 contrary to the Criminal Code. Six months later, on September 10, 2011, he was charged again with over 80.
(ii) Driving Prohibition 1 - March 2, 2012
[15] On March 2, 2012, he plead guilty to over 80 before Ritchie J. in Toronto. The clerk of the court cautioned him that his license would be suspended for a period prescribed by statute. He was aware that after pleading guilty he was prohibited from driving for one year. The prohibition order, which has a place for his signature, was not acknowledged by him. There is no evidence about the steps, if any, that the clerk took to inform him of the suspension and the consequences of driving therein. He didn't provide his drivers license to the court as he left it in his wallet, which was in his car. Initially, he said he parked his car at the courthouse but later on, he said the car was parked at the Go station. When confronted with this discrepancy, Mr. Emam-Nazar explained that he didn't really think through his answer as he was rushing through his evidence.
[16] Regardless, his plan was to have his brother who works downtown, to drive him home. This is borne out by the transcript of the guilty plea [exhibit 4(a)] in which he remembered saying: "I'm sure my license is no good anymore".
[17] Mr. Emam-Nazar asked Ritchie J. to allow him to keep his license. Obviously that couldn't happen as the prohibition was mandatory. This prompted the following exchange:
THE COURT: Now, there is a provision, which the Crown just made mention to, through the Ministry of Transportation to apply earlier to get it back. They have a program. I do not know, I think you would be eligible after six months. I am not certain. Is it six months or nine months? Maybe counsel know.
MS. LATON: I'm not 100 percent sure, I think it's after three –
THE COURT: Three?
MS. LATON: – to be honest.
THE COURT: Oh, okay.
MS. LATON: But you have to apply and see – and I don't see – like I said, I don't make those decisions, it's up to the Ministry of Transportation.
THE COURT: Yes.
MS. LATON: But if he's willing to install one of those interlock devices in his car, and I would suggest contacting the Ministry, like not waiting three months, contact them right away –
THE COURT: Immediately.
MS. LATON: - immediately and find out what the steps are that you have to go through, but there is a away for you to drive sooner than a year, but it requires you to install one of those machines that doesn't allow the car to drive until you blow in it and blow zero. And I'm taking no position, as long as you and the Ministry work it out, I would encourage you to apply for that.
[18] Mr. Emam-Nazar testified that nobody in court told him to go to the MTO. He could not recall if he got a notice from the MTO advising of the suspension, maintaining "it was possible". I find as a fact that he knew of the length of this driving prohibition.
[19] From March 19 to June 19, 2012, he did not drive and instead hired a personal driver to help him with his business affairs.
(iii) Driving Prohibition 2 - June 19, 2012
[20] On June 19, 2012, some three months after starting his one-year prohibition, Mr. Emam-Nazar appeared before Pringle J. and entered a guilty plea to the second over 80 offence.
[21] At the guilty plea, the parties jointly proposed a one-year driving prohibition. He was represented by counsel but not the same person who assisted him before Ritchie J. Pringle J. conducted a comprehensive plea inquiry even going as far as explaining to him that the ignition interlock program would be available to him within six months. She said:
THE COURT: … You have to have six months where you don't drive at all, and then you have the opportunity to get into the program then. But you have to meet all the requirements of the program and you have to be accepted into it. Okay? So knowing all of that, you're prepared to enter your plea now?
MR. EMAM-NAZAR: Yes.
[22] As required, the clerk of the court orally cautioned him that his license would be suspended by the HTA for a period prescribed by statute. The length of the suspension was not specified. At sentencing, Pringle J. was aware that Mr. Emam-Nazar was on a driving prohibition imposed by Ritchie J. Counsel asked if the court would consider imposing the prohibition concurrently as opposed to consecutively. This resulted in some controversy as to what would happen to the ignition interlock provisions. The court said:
THE COURT: this is a somewhat unusual situation, however, where I'm really wondering what will happen if I make a consecutive order for a license prohibition …
[23] Eventually, the court imposed a concurrent driving prohibition and said:
THE COURT: And I know that as a result of the order that I have made today, you will not be eligible to even apply for the ignition interlock provision for a period of six months from today's date. So there was some mention that you were eligible as a result of your prior conviction in September. That will not take place because you will not be eligible for the ignition interlock provision in relation to this matter, for another six months. And, as you know, I am going to prohibit you from driving for a period of 12 months unless you get into that ignition interlock program.
[24] When imposing the one-year prohibition, the court said:
THE COURT: … As I've told you, I'm going to prohibit you from driving for a period of one year on today's date. You may not drive a motor vehicle anywhere in Canada for a period of one year, unless you are accepted into the ignition interlock program. And my understanding is that you will not be accepted until at least six months have passed, and you will have to comply with whatever provisions of the program there are.
As you've seen, there's been some doubt about exactly how long the prohibition, or at least the ignition interlock will be in effect for, and whether they will treat you as a second offender. I believe they will and I believe the condition will be in effect for a period of three years. But that's for the program to met out to you and to explain to you. (See exhibit 5).
[25] In the court's concluding remarks to him, the court added:
… You may not drive for at least a period of six months. And you will not be able to drive for purposes of work, or for any other reason. You must not drive unless you are accepted into the ignition interlock program.
[26] Mr. Emam-Nazar confirmed he still resided at 24 Jaguar St. in Scarborough. Exhibit 1(c) is a certified copy of the prohibition order and in similar fashion to the first prohibition order, the acknowledgment component on the form which serves to notify the defendant of the consequences of driving while disqualified is blank.
[27] On this occasion, he drove his car to the courthouse and left his license in his wallet which was in his car. He added that after pleading guilty – which he didn't know was going to happen until that day – he even offered to get his license from his wallet. His lawyer told him not to bother.
[28] The effect of Pringle J.'s driving prohibition meant that Mr. Emam-Nazar was prohibited by virtue of the Criminal Code prohibition until June 19, 2013 as it was running concurrently to Ritchie J.'s order, which expired on March 2, 2013. However, it wasn't the Criminal Code orders that triggered the present allegation of driving disqualified but rather the three-year driving prohibition which was imposed by the MTO on June 19, 2012 set to expire on June 19, 2015. Exhibit 2(a) is a certified copy of MTO records attaching the notice of suspension notifying Mr. Emam-Nazar that his license was suspended for three years effective June 19, 2012.
[29] At trial, Mr. Emam-Nazar testified that prior to pleading guilty before Pringle J., he thought his suspension would be for a further three months as he had previously plead guilty in March 2012. Leaving the courthouse, he thought his license was suspended until June 19, 2013. When asked about the possibility of the ignition interlock program being in effect for three years, he stated, that he understood from Pringle J. that he could apply for the ignition interlock after six months but in his mind wouldn't have to as his license would be reinstated in three months in any event as the prohibition would be expiring. At the end, he got a piece of paper from the court that said his license was suspended for one year ending June 19, 2013. I can reasonably infer this was the copy of the prohibition order. There is no evidence that he read the entirety of this order – including the back, which contains information about the consequences of driving while prohibited.
[30] From June 19, 2012 to June 19, 2013, he did not drive and continued to be driven his hired driver. After June 19, 2013, he started to drive on his own, believing he was no longer suspended.
(iv) Notice of Suspension - January 9, 2013
[31] In addition to the above suspension, Mr. Trbojevic also tendered certified documents from the MTO including a notice of suspension dated January 9, 2013 for unpaid fines related to a speeding offence which occurred prior to the criminal matters. See exhibit 2(c). Mr. Fahmy objected to this as prejudicial evidence, but in my view, it was admissible as it was relevant to the unfolding of the narrative – even though it didn't trigger the offence before the court. Mr. Emam-Nazar recalled that in February 2012, he was stopped for speeding and filed an appearance notice with the court to dispute the offence but didn't get a notice of trial in the mail. He explained that he didn't see the need to follow up on the court date as his license was already suspended (until June 2013) and in his mind, that was possibly the reason they [MTO] didn't send him a court date.
[32] The suspension notice goes on to say that he must pay the outstanding fines to have the license reinstated, which takes a minimum of four days. I pause here to note that it is unclear to me why the MTO would pursue a further suspension notice when the previous notice, ostensibly, mailed to him in June 2012 was still in effect. Moreover, the prohibition imposed by Pringle J. was also in effect. The practical effect of this is somewhat misleading. While there's no evidence of this, if Mr. Emam-Nazar followed the direction of this notice and paid the outstanding fines, he would still be prohibited from driving as the three year suspension was still in effect.
[33] At trial, Mr. Emam-Nazar testified that he didn't recall getting any notice of suspension in the mail after the second over 80 offence as "I already had a paper from the court and didn't care to get it by mail". Arguably, this refers to Pringle J.'s prohibition, which he would have received from the court. In his mind, he knew he couldn't drive until June 2013. He acknowledged not paying very close attention to the guilty plea proceedings as he was more worried about the impact of not driving would have on his business. He stated he didn't know the MTO had their own terms but rather he thought it was the judge who would decide his driving fate.
[34] Between March 2012 and June 2012, he did not attend at the MTO to inquire about the ignition interlock program because he knew there was a second over 80 offence looming. Likewise, he didn't attend at the MTO between June 2012 and November 2013 as he felt there was no reason to do so, being under the apprehension that he would be able to drive as of June 2013. He didn't think he would have to attend to have it reinstated as it was not a HTA matter.
[35] He testified that at his guilty plea in June 2012, he remembered the judge speaking of a 3 year restriction on his license but he thought this was related only to the ignition interlock program and didn't relate to a driver's suspension. He said "I didn't understand – for me, it was hard to understand, I didn't catch it. To my understanding [she] was talking about ignition interlock". He had no idea how the program worked. Again, he didn't apply for the program because in his mind, he didn't need to, if his license was suspended until June 2013. He added: "I completely misunderstood".
(v) The Roadside Investigation – November 13, 2013
[36] On November 13, 2013, Mr. Emam-Nazar's vehicle was stopped on the highway 401 by PC Jolicoeur. PC Jolicoeur's intention was to issue a Provincial Offences Act notice for littering the highway as Mr. Emam-Nazar had discarded a cigarette butt which hit his police cruiser. He was asked for his driver's license, which he said was in his wallet which he left at home. He provided his name and date of birth, which resulted in further investigation.
[37] PC Jolicouer did a CPIC check and discovered that he was a prohibited driver. He testified that Mr. Emam-Nazar was "taken off guard" and "surprised" at being told that his license was suspended and made some utterances in this regard. These utterances were the subject of a voir dire to determine their admissibility as prior consistent statements.
[38] On the voir dire, PC Jolicoeur testified that Mr. Emam-Nazar seemed "shocked" and "surprised" when told he was suspended. In particular, he advised PC Jolicoeur that his license suspension was over in June, 2013. PC Jolicoeur responded that his system still shows it as suspended. To this he responded "I don't know because the court had given me [a] paper only for one year from June 19 2012 to 2013". PC Jolicoeur added: no it still shows as suspended. Ultimately, he was arrested for the offence without incident.
[39] I ruled the above utterances to be admissible pursuant to the principles enunciated in R. v. Edgar, 2010 ONCA 529, [2010] O.J. No. 3152 (Ont. C.A.) where the court concluded it was open to a trial judge to admit an accused person's out-of-court statement made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements. Exculpatory statements may be admissible, not for their truth but as evidence of the reaction of the accused. To be admissible the statement must have probative value to a fact in issue; it must be sufficiently spontaneous; and the accused must take the stand and exposes him/herself to cross-examination.
[40] In addition, the statement must have probative value. As noted by Sharpe J.A. in Edgar, supra at para. 67: "If evidence fails to add anything new, repetition is less than helpful." McKinnon J. in R. v. Liu, [2003] O.J. No. 74 (S.C.J.) observed at paragraph 31: "Critical to the determination of the admissibility of a previous self-serving statement is its relevance to a fact in issue."
[41] In my view, Mr. Emam-Nazar's reaction to being confronted with being told he was suspended are relevant to his state of mind and to a lesser extent, his demeanor. It was sufficiently spontaneous and in any event, he was exposed to cross-examination which limited any issues that might arise with an allegation of recent fabrication. Indeed, upon the appropriate material being served and filed with the Court, Mr. Trbojevic didn't take a strident position in opposing the application nor did he allege recent fabrication.
[42] After being charged, Mr. Emam-Nazar called his lawyer and the MTO and was told that he was suspended until June 2015. He refrained from driving until then. When asked why he didn't think of contacting MTO between June 2012 and November 2013, he explained he didn't think he needed to even though he knew he had been convicted twice of criminal offences. In his mind, he knew he was suspended for one year and on each occasion when he had to attend at the MTO to reinstate his license, it was for HTA related not criminal matters.
Analysis
[43] Section 259(4) of the Criminal Code creates the offence of driving while disqualified. In R. v. Kresko, [2013] O.J. No. 1523 (Ont. Sup. Ct.), Justice Himel helpfully distilled the elements of the offence as follows: the Crown must prove the actus reus, namely that at the time of driving, Mr. Emam-Nazar was bound by a legitimate disqualification/suspension and the mens rea, Mr. Emam-Nazar knew of the existing disqualification/suspension. As a criminal allegation, it is not an absolute liability offence but rather has a mens rea component of general intent. Ignorance of the suspension or disqualification, which is a mistake of fact, can serve as a valid defence: R. v. Baril, R. v. Prue, [1979] 2 S.C.R. 547; R. v. Finn, [1972] 3 O.R. 509 (C.A.). Honest belief that there was no suspension is treated in the same manner: see R. v. Mudryk (1977), 38 C.C.C. (2d) (Alta.C.A.); affirmed, 42 C.C.C. (2d) 448 (S.C.C.) Mistake has also been accepted as establishing a lack of knowledge where an accused was aware of the disqualification but mistaken as to its duration: see R. v. Lariviere (2000), 38 C.R. (5th) 130 (Que.C.A.).
[44] Once the Crown has proven that the accused was disqualified, a prima facie case is established and the onus then shifts to the accused to produce evidence that he did not know that he was disqualified: see R. v. Lock, 4 O.R. (2d) 178 (C.A.). At this stage, the burden of proof on the accused is to establish on a balance of probabilities that he did not have the requisite knowledge of the disqualification: see R. v. McLean, [1982] B.C.J. No. 653.
[45] Further, in Kresko, supra, Himel J. made the following observations regarding the presumption of regularity, which may impute knowledge to an accused:
240 Where provincial legislation and the Criminal Code require that an accused be informed, upon conviction, of his disqualification; and, where under provincial legislation, the accused is to surrender his licence to the convicting judge, the presumption of regularity in the operation of the court system applies. There is, therefore, a presumption that the accused was notified (and thus aware of the disqualification): see R. v. Larsen, [1992] S.J. No. 158 (C.A.). Absent evidence of lack of knowledge, the accused runs the risk of conviction.
241 This presumption of regularity must be applied cautiously in the criminal law context. In R. v. Molina, 2008 ONCA 212, 60 M.V.R. (5th) 31, at para. 13, the Ontario Court of Appeal cites with approval, the statement in Scott v. Baker (1968), 52 Cr. App. R. 566 at p. 571, that "very great care must be taken in applying the presumption of regularity in criminal proceedings. To purport to establish the guilt of an accused solely or largely by reliance on such a presumption would amount to a fundamental contradiction of the principles upon which our system of criminal law is based."
[46] Mr. Fahmy argues that the Crown hasn't proven that his client had notice of his disqualification as required by s.260 of the Criminal Code and the presumption of regularity should not be broadly applied in this case. Section 260(1) of the Criminal Code requires that if a court makes a driving prohibition order under the Criminal Code, it must give the offender notice pursuant to the terms of that section. In particular, the offender must be notified that breaching the prohibition order carries penal consequences under s.259(4). In Molina, supra, the Ontario Court of Appeal held that compliance with s.260(1) of the Criminal Code is a pre-condition to a conviction of driving while disqualified under s.259(4).
[47] A "disqualification" is defined in s.259(4) as either a driving prohibition order under the Criminal Code or a provincial driving suspension consequent upon a conviction under the Criminal Code. In most cases, such as this, a Criminal Code driving prohibition will automatically be followed by a parallel provincial driving suspension by operation of s.41(1) of the HTA.
[48] In R. v. Fernandes, [2013] O.J. No. 2971, the Ontario Court of Appeal further clarified that an offender may be convicted of the offence under s.259(4) of the Criminal Code based on either or both a driving prohibition order under the Criminal Code or a driving suspension/restriction imposed under provincial law upon conviction for an eligible Criminal Code driving offence. Cronk J. stated at para. 121:
Where the Crown relies on a driving prohibition order under the Code as the relevant driving "disqualification", as permitted by s. 259(5)(a) of the Code, Molina requires that the Crown prove compliance with s. 260(1) of the Code as an essential element of the s. 259(4) offence. However, where the Crown relies on a provincial driving suspension or restriction, as contemplated by s. 259(5)(b)(i) of the Code, s. 260(1) of the Code is not engaged. In the latter circumstances, on the authority of ss. 260(4) and (5) of the Code, the Crown may prove the provincial driving disqualification by relying on a provincial registrar's certificate setting out the details of the provincial driving suspension or restriction, without regard to compliance with s. 260(1).
[49] Applying the above principles to this case, there is no issue that Mr. Emam-Nazar plead guilty to over 80 before Pringle J. which triggered the automatic three-year provincial suspension by the MTO. This suspension was set to expire on June 19, 2015 well after the date he was arrested – November 13, 2013. By virtue of exhibit 2(a) from the MTO, which is a certified copy of the notice of suspension, I am satisfied that Mr. Emam-Nazar's license suspension was valid at the requisite time. In accordance with Fernandes, supra, compliance with s.260(1) of the Criminal Code was not required. The actus reus has been proven.
[50] The real issue surrounds the mens rea, that is whether at the time of driving, he had notice of this suspension – such that he knew or was reckless and/or willfully blind about knowing that he was in fact a suspended driver. To determine this issue, I must resolve issues relating to his credibility and reliability. In doing so, I must apply the three part test in D.W. v. the Queen (1991), 63 C.C.C. (3d) 397 and in particular, the comments of the Supreme Court of Canada in R. v. White (1947), 89 CCC 148 SCC at page 151: [the] proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation. The correct approach to the standard of proof is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the defendant. See R. v. Morin, [1988] 2 S.C.R. 345 at p. 361; R. v. Van, 2009 SCC 22, R. v Cyr, 2012 ONCA 919.
[51] I have considered the credibility and reliability of his account having regard to it's inherent logic, it's internal consistency, it's consistency with other statements made out of court, whether his evidence has been contradicted or corroborated by other evidence, his motive to lie (if any) and to a lesser extent, his demeanor while testifying.
[52] Overall, I had some concerns with the reliability of his account but despite this, I found him to be credible in areas that impact the issue of whether he had the requisite knowledge at the time of driving. I agree with the observation of Himel J. in Kresko, supra, that I must apply the presumption of regularity with caution – especially in the unique circumstances of this case. However, even if I am incorrect and was required to apply it without caution, it does not assist the Crown with imputing knowledge of his suspension to him. Here, In both instances where a Criminal Code driving prohibition was imposed, there is no evidence before the court that Mr. Emam-Nazar was fixed with knowledge of the consequences of driving while prohibited which is a pre-condition under s.260 of the Criminal Code. To be clear, this pre-condition does not apply in this case pursuant to Fernandes, supra, given that a provincial suspension is at play - but the lack of compliance is some circumstantial evidence which supports Mr. Emam-Nazar's position that he misunderstood the true state of affairs. Exhibit 1(c) is a certified copy of Pringle J.'s prohibition order. The order has a significant amount of detail on the back, which is a pre-printed form, making it very clear to the person signing the order that under the HTA, one's driver's license is suspended for three years for a second conviction. Here, there is no evidence that Mr. Emam-Nazar signed the form or put differently had "notice" of the consequences of driving while suspended and by implication the factual length of the suspension. Similarly, there is no acknowledgment on the prohibition order imposed by Ritchie J. either, which would have fixed him with some knowledge as well. Parenthetically, I pause to note whether this was simply an oversight or varies among jurisdiction as in the Durham Region, defendants are required to acknowledge the prohibition.
[53] The effect of this is to displace the presumption of regularity – if it applied. Instead, Mr. Emam-Nazar's position that he thought his prohibition was extended for three months before Pringle J., while misguided, bears some credence. His position is buttressed based on a careful review of the guilty plea transcript. The court said:
THE COURT: As you've seen, there's been some doubt about exactly how long the prohibition, or at least the ignition interlock will be in effect for, and whether they will treat you as a second offender. I believe they will and I believe the condition will be in effect for a period of three years (emphasis added).
[54] The reference to "prohibition" was likely inadvertent but the real effect of this comment was to intimate to him that the interlock provisions would be in effect for three years. No reference is made to a three-year suspension. There is no requirement for the court to do so as this is administered through the MTO. There is some uncertainty on this issue, largely as a result of the court taking great pains to be careful about the effect of the Criminal Code as opposed to MTO prohibition. In the courts concluding remarks to Mr. Emam-Nazar, which would have been the last set of comments heard by him before he left court, the court said:
THE COURT: … You may not drive for at least a period of six months. And you will not be able to drive for purposes of work, or for any other reason. You must not drive unless you are accepted into the ignition interlock program.
[55] Clearly, the court took great care to explain the steps required of him to mitigate the effect of not being able to drive by participating in the ignition interlock program – but this appears to be lost on Mr. Emam-Nazar. His evidence that he completely misunderstood bears fruit. The practical effect was to potentially blur the Criminal Code sanction with any MTO consequences. If the court's comments were taken literally, he would not have been permitted to drive for a period of six months after his guilty plea being December 19, 2012, which of course would be before Ritchie J.'s order expired in March 2013. Given his evidence that he knew he wasn't able to drive until June 2013, I find that he could not have taken the comments literally but instead, had clearly misunderstood.
[56] Here, there is no evidence that Mr. Emam-Nazar pursued the interlock program at all and instead resumed his driving privileges after June 19, 2013. In his mind, he didn't have to as he was getting his license back in a shorter period of time. If Mr. Emam-Nazar turned his mind to the apparent illogicality of this position [a six month suspension], it may well have motivated him to attend at the MTO to clear up the confusion but he didn't do so. By implication, there's no evidence to suggest that he was willfully blind. In R. v. Gauntley, [1999] O.J. No. 5315 (Ont. Sup. Ct.), Justice Hambly held that before wilful blindness can apply, there must be a finding that a defendant's belief that he could drive lawfully was not credible. Put differently, I must find that Mr. Emam-Nazar had his suspicions aroused but deliberately omitted to make further inquiries or that he almost actually knew that he was prohibited from driving. The test is subjective not an objective one, thus the reasonable person standard has no application.
[57] In my view, the evidence does not support a finding that he had his suspicions aroused or that he "almost actually knew" that he was prohibited from driving. I accept his evidence that he relied exclusively, on the prohibition order given to him in court, which was a one-year order. His explanation for not pursuing or following up with the ignition interlock program is a credible one given the circumstances.
[58] In any case where a person drives while disqualified, it may be easy to simply say: "I didn't get notice in the mail, thus I didn't know I was suspended". Mr. Trbojevic submits that I should reject this position advanced by Mr. Emam-Nazar and points to his lengthy driving history as support for the position that he was reckless in his belief. I have cautiously assessed this aspect of his evidence that he didn't receive the notices and concluded that despite some concerns, I cannot completely reject his evidence.
[59] Overall, I found Mr. Emam-Nazar to be credible despite some obvious concerns with the reliability of his account. However, this did not translate into proof of recklessness. While I tend to agree with Mr. Trbojevic that Mr. Emam-Nazar's actions (or properly characterized as inactions) in this case defy his general practice of doing something about his license, I'm of the view that his extensive history with the MTO cuts both ways. With all due respect to Mr. Emam-Nazar, his history with the MTO reveals somebody who clearly didn't pay close attention to his personal affairs, sometimes allowing his license to lapse into unpaid fines and ultimately suspensions. Clearly he took some steps to rectify the situation by paying reinstatement fees, but to put it bluntly, he was careless with his driving privileges.
[60] I cite one example of this. On both occasions of his guilty pleas, he left his wallet in his car, which contained his driver's license. In November 2013, he also didn't have his wallet on his person – which he said contained his driver's license. I cannot conclude that Mr. Emam-Nazar deliberately withheld his license from the court when he plead guilty. Instead, I attribute this to carelessness as opposed to a nefarious intent to obfuscate the truth. Holding on to an invalid license doesn't make sense if one is prohibited from driving. Presumably, if one is stopped by the police and tries to pass an invalid license, while prohibited, this could carry further criminal sanctions such as obstructing police. While there was no evidence of this in this case, this was an example of him simply not being careful about his affairs.
[61] In my view, the same lack of care manifested with other parts of his evidence. His inconsistent evidence on how many times he didn't receive notices in the mail can be attributed to this carelessness as opposed to any effort to mislead the court. The same can be said about his inconsistent evidence about where he parked his car when he went to court. I'm mindful of the fact that English is not his first language, but he struck me as somebody who was trying to be honest, even if this meant he had no real memory of an event. Instead of simply acknowledging he didn't know the answer, for example, to a question pertaining to a driving infraction several years ago, he always offered a response. More often than not, he was agreeable to the suggestions put to him – even when he gave different evidence on a subject. This is supported by his admission at trial that he answered questions haphazardly without paying close attention. He often answered suggestions put to him quickly without reflection. In fairness to him, being cross-examined over several days can have the incidental effect of not being entirely sure about previous testimony and in this case, this was certainly a live issue. Having said this, he was consistent in his position that he didn't know he was suspended. In R. v. H.C., 2009 ONCA 56 Watt J.A. stated that "any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence." I find that despite concerns of reliability, I cannot find he was incredible, particularly because his explanations for his actions (or inactions in some cases) had the ring of truth.
[62] He testified that on some occasions he did receive notices from the MTO – and when they related to HTA matters, he would generally do something about them. This makes some sense as provincial matters are largely triggered by a defendant doing something – whether it be requesting a court date, attending court or paying unpaid fines. When he was charged with speeding prior to the criminal matter, he requested a court date and did nothing further eventually being suspended. His evidence that he didn't get a notice makes some sense even though it goes against his practice of doing something about HTA matters, as the criminal matters intervened and ultimately resulted in a prohibition. The effect is the same as he couldn't drive. It's understandable why he wouldn't bother following up because as of March 2012, his license was already suspended until March 2013 or according to him, June 2013. The fact that the federal scheme governed by the Criminal Code and provincial scheme governed by the HTA and administered through the MTO are not entirely compatible in their sanctions is not surprising. The simple fact that a criminal court can impose a one year driving prohibition for a second driving related offence and the MTO will automatically treat this as a three-year suspension is on its face, confusing.
[63] I cannot entirely reject his evidence that he was confused and misunderstood because the MTO itself can be confusing. Here, the MTO issued a second notice of suspension in January 2013 as a result of not paying the fine attributed to the speeding infraction, which I can only infer ended up in a conviction. This suspension notice is entirely unrelated to the June 2012 suspension. The information on the notice about how to have it reinstated is misleading and doesn't reference the previous suspension at all. Contrary to the notice, he couldn't simply reinstate his license by paying the unpaid fines even if he wanted to as the other, three-year suspension was still in the way. I say this even though his evidence was he didn't receive this notice. He may have been careless about his affairs, but his conduct doesn't rise to the level of recklessness.
[64] Overall, there is nothing in the MTO records that contradicts his assertion that he didn't receive the notice of suspensions, for example, such as some proof that he visited the MTO after 2012 to reinstate his license. An intervening act would have weakened his position such that it would mean that on some occasions he didn't get notified but on others he did. In my view, the fact that he received some mail prior to 2012 doesn't help the Crown's position too much because the operative time frame in question is post 2012, after his criminal convictions, when he thought the criminal court – alone, would be deciding his licensing fate. It may be that after he got involved with criminal sanctions, he simply chose to ignore the MTO all together – but I would simply be speculating about this as no evidence was lead on this issue.
[65] In addition to the above, are Mr. Emam-Nazar's utterances to PC Jolicoeur at the roadside that the court had given him a paper which confirmed his suspension was in effect until June 2013. While I have not treated this as proof of its contents, his reaction and spontaneous assertions have the quality of being additional circumstantial evidence supporting his lack of knowledge. If the entire exchange was in fact fabricated (a position not advanced by Mr. Trbojevic) the entire interaction doesn't bear this out. First, if Mr. Emam-Nazar really knew that he couldn't drive until 2015 but "took a chance" armed with a prohibition which ended in 2013, his guise wasn't well planned as he didn't even have a copy of the order on his person. He relied on PC Jolicoeur to investigate the matter. Second, there is no evidence before me that PC Jolicoeur corrected him to advise that he was bound by a three-year suspension, not prohibition. In other words, there's nothing in the exchange to impute any knowledge of the HTA suspension.
[66] Much like Prue and Baril, the question of whether a person has been notified of their suspension, is a question of fact. Ignorance of the law is no excuse but being ignorant of the true facts can excuse one's actions. In that case, both defendants testified they were not notified of their suspensions and the Supreme Court of Canada upheld their acquittals. In R. v. Osborne, [2002] O.J. No. 3633, Justice Stone, in a case dealing with similar issues, commented that recklessness, not carelessness, is the minimum alternative to finding actual intent or willfulness. Unlike Osborne or even Kresko, where there was actual evidence that the accused had notice of the length of the suspension here there is very little. The only evidence is a notice being sent and his evidence that he didn't get it. As noted above, given the unique combination of (a) the guilty plea proceedings (b) the lack of any direct evidence fixing him with knowledge, (c) the roadside interaction and (d) Mr. Emam-Nazar's credible explanations, or at least those I can't entirely reject, for his involvement with the MTO, I cannot be satisfied that he was reckless as to his knowledge that he was suspended. He may have been careless but that can't ground a conviction. I find that he misunderstood and thought he was permitted to drive as of June 2013.
[67] Many of the variables that lend support to his position were out of his control making the prospect of spinning a contrived story, highly unlikely. This is simply a case where the very unusual set of circumstances push the dial closer to an acquittal. The burden in a criminal trial is a high one and in my view, has not been met. Given my conclusion about the lack of knowledge, it is largely unnecessary to go further and consider the alternative positions advanced by counsel. Suffice to say, I do not find that officially induced error applies in this case. See R. v. Jorgensen (1995), 102 C.C.C. (3d) 97.
Conclusion
[68] This was a close call but in the end, I simply can't be satisfied beyond a reasonable doubt about Mr. Emam-Nazar's guilt. Accordingly, he will be found not guilty of the offence.
Released: January 15, 2016
Signed: "Justice F. Javed"