Court File and Parties

Court File No.: 14-3558(St. Catharines) Date: 2016-12-01 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jeffrey(Jeffery) Valde

Before: Justice Fergus O'Donnell

Reasons for Judgment Released on: 1 December, 2016

Counsel:

• Mr. H Limheng for the Crown
• Mr. E. Kocet for the defendant, Jeffrey(Jeffery) Valde

Judgment

Fergus O'Donnell, J.:

Overview

[1] Jeffrey Valde appeals his convictions for driving while his licence was suspended and for possession of a suspended licence contrary to sections 53(1) and 35(1)(b) of the Highway Traffic Act, respectively. He was found guilty of both offences after a trial before His Worship, Justice of the Peace T. Froese on 1 April, 2015.

The Evidence

[2] At trial, Constable R. Choi of the Niagara Regional Police Service testified that on Sunday, 25 May, 2014 he was working in Niagara Falls and had occasion to run the licence plate of Mr. Valde's car, learning thereby that the registered owner was Mr. Valde and that he was a suspended driver due to unpaid fines. The suspension had been effective on Thursday, 22 May, 2014 and mailed out that day and the traffic stop that ensued from Constable Choi's computer inquiry was only three days later, with two of those three days being weekend days. That time period obviously falls short of the seven day period of "deemed notice" of suspension provided for by s. 52(2) of the Highway Traffic Act and may very well fall outside the likely delivery standard for a piece of first class mail, even within the Greater Toronto Area.

[3] Constable Choi pulled the car over and found that Mr. Valde was indeed the driver. Mr. Valde identified himself with a photo-card Ontario driver's licence. As a result, Constable Choi issued Mr. Valde with two summonses under Part III of the Provincial Offences Act.

[4] Mr. Valde testified. He said that he was not aware of the status of his licence and had not received notice of the suspension, although his mailing address had been constant. He testified that the licence suspension related to a fine he had received but had not paid due to some financial issues he was facing so left payment "until the last minute to pay". He said he only realized he was under suspension for the non-payment when he was pulled over and he went the next day to have his licence reinstated. He said that if he had known he was suspended, he would not have driven.

[5] In cross-examination, Mr. Valde said that the unpaid fine related to a ticket he had received, "probably a few months before". He testified that the fine related to a conviction for driving with a hand-held device from 1 April, 2014, which would be about seven weeks before he was pulled over by Constable Choi and said that he had "no idea" that his licence could have been suspended. He was then presented with his driving record which shows that he had twice had his licence suspended in 2008 for unpaid fines as well as a similar suspension in March, 2014, the last of these being within about a couple of months of his current travails.

[6] On each occasion Mr. Valde's licence had been suspended for unpaid fines and he had gone through the process for reinstatement. When it was suggested to him that it was unreasonable for him to claim he would not have known that his licence would be suspended if he did not pay the April, 2014 fine, Mr. Valde replied, "I promise you that I did not remember any of these, these things that happen," and he then went on to suggest that these convictions had been in "2008 and 2009 and at that time it was all for speeding tickets just I'd be receiving because I was a little bit younger." He was then confronted with the 2014 suspension only two months earlier and said that he had been trying to accumulate the money to pay for the fine and had, "completely forgot about it". He made no calls to the Ministry of Transportation to inquire about his driving status. He said that on each previous suspension he had received a notice of suspension in the mail.

The Decision At Trial

[7] Justice of the Peace Froese recognized that the statutory deemed notice provision was not applicable in this case, given the very short gap between the notice being mailed out and the traffic stop by Mr. Choi. However, having regard to the number of previous suspensions and reinstatements due to unpaid fines, His Worship concluded that Mr. Valde had not demonstrated that he acted with due diligence (His Worship appears to have overstated the number of unpaid fine suspensions, but the difference is not material) and found him guilty of both offences. His Worship fined Mr. Valde the minimum fine of $1,000 on the drive suspended charge and suspended sentence on the secondary count.

The Issues and Analysis

[8] I was referred by Mr. Kocet to about a dozen authorities and by Mr. Limheng to a few more. I do not propose to refer to all of the authorities cited because I do not believe that all of them provide enlightenment or are particularly germane. Rather, I shall outline the process of reasoning that I believe leads necessarily to the conclusion that the appeals must be dismissed.

a. The determination of any particular case will typically depend on its own facts.

b. Offences can broadly be divided into the categories of true crimes, offences of strict liability and offences of absolute liability. Unlike a truly criminal offence in which the Crown must prove actual knowledge or intent or "wilful blindness" (which is essentially the same as knowledge) beyond a reasonable doubt, in a strict-liability offence the Crown must prove the guilty act (for example that the defendant drove and that his licence was suspended at the time). See: R. v. Sault Ste. Marie, [1978] S.C.J. No. 59.

c. The offences here are regulatory offences of strict liability. See: R. v. McDougall, [1982] S.C.R. 645.

d. The Crown does not have to prove that the defendant had notice of the suspension in order to obtain a conviction, "although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act". See: R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 at para. 11 (Ontario Court of Justice, MacDonnell, J.)

e. The defendant can avoid conviction despite the Crown proving the guilty act if the defendant can show that he acted with "due diligence", i.e. "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." See: R. v. Sault Ste. Marie, supra, at p. 19.

f. The onus upon a defendant in a strict-liability offence is to demonstrate due diligence on a balance of probabilities: R. v. Sault Ste. Marie, supra, at p. 19, which necessarily means that a defendant merely creating a reasonable doubt on the issue of due diligence (the purported standard in Bellomo, [1995] O.J. No. 313 (Ont.C.J.)) does not satisfy the standard required by law. The "balance of probabilities" standard has been reaffirmed as recently as June of this year in the Court of Appeal's decision in R. v. Pourlotfali, [2016] ONCA 490, at para. 68.

g. The concepts of "due diligence" or "all reasonable care", "do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more would, in my view, move a strict liability offence dangerously close to one of absolute liability." See: R. v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ontario Court of Justice, Provincial Division).

h. More recently, in Levis (City of) v. Tetreault, [2006] SCC 12 the Supreme Court of Canada made the following comments that are highly relevant to the application of the due diligence offence in a case such as this: "In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case." (Emphasis added) In light of this language by the Supreme Court, the philosophical underpinnings of the decision in R. v. Bellomo, supra, at paragraph 39 about what it is reasonable to expect drivers to do in relation to keeping up to date on the status of their right to drive can no longer be considered a valid proposition of law.

i. Section 52(2) of the Highway Traffic Act presumptively deems the defendant to have received the notice of suspension seven days after it was mailed to him, "unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice."

j. That presumption is not operative in this case as the notice was sent out less than seven days before Mr. Valde's offence.

k. The fact that a defendant did not receive the notice is relevant to the issue of due diligence but is not necessarily determinative: see R. v. Miller, [1988] O.J. No. 253 (the penultimate line of the decision) (Ont. C.A.) and R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267, at para. 12: "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...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."

l. To the extent that the decisions of this court in R. v. Bellomo, [1995] O.J. No. 313 and R. v. Lupo, [2008] O.J. No. 5591 purport to apply a heavier burden on the Crown or a lesser burden on the defendant in relation to this issue than the burden set out by the Supreme Court of Canada, the Court of Appeal and other judgments of this court, I cannot consider them to have been properly decided.

[9] Returning to the present case, Mr. Valde's assertion at trial that he did not actually receive the notice sent out by the Registrar of Motor Vehicles on the Thursday before the Sunday he was charged was almost certainly true, but that is not the ultimate issue. Leaving for another day what level of awareness should or should not be attributed to other drivers in other circumstances, the evidence of Mr. Valde's previous suspension history is highly relevant to the question of his exercise of due diligence. I stress that the fact that Mr. Valde was suspended in the past is not relevant to demonstrate that he is the "kind of person" who would drive under suspension; that would be an entirely inappropriate line of reasoning. Indeed, he has no previous convictions for driving under suspension. However, the question of what is "reasonable care" may be informed by a person's level of knowledge, sophistication or experience in a particular field (again leaving aside for another day whether every driver should be taken to be aware of the consequences of not paying a fine within a certain time).[1]

[10] Whatever might be said of some hypothetical other driver, Mr. Valde had the dubious and presumably costly and memorable distinction of having had his driver's licence suspended on three previous occasions specifically for not paying a fine on time. It is undoubtedly true that on each of those occasions he received a written notice of suspension from the Registrar as he testified, but the fact of those notices does not absolve him from responsibility simply because he had not yet received the notice on this occasion. Mr. Valde knew very well how the system worked when a fine is left unpaid. On this occasion he failed to pay the fine for the reasons he gave. Fifty-four days passed from the date of his conviction, one-hundred-and-one days from the date of his offence and he continued to drive. Again, whatever might be said of other motorists in other situations (assuming it would lead to a different conclusion), Mr. Valde took no steps to determine if his failure to pay the fine had once again put him in the jeopardy that he knew was lurking out there. He rolled the dice. And he lost. No reasonable person with his familiarity with the process would have done as he did. Indeed, I would go so far as to say that, if this were a full mens rea offence, (i.e. requiring the Crown to prove either actual knowledge of the suspension or wilful blindness), the record about Mr. Valde's familiarity with the process whereby licences get suspended for non-payment of fines would actually satisfy the burden and the high standard of proof required of the Crown on a wilful blindness argument.

[11] I note that there is a discrepancy between the spelling of Mr. Valde's given name as between the summonses and the information on the one hand ("Jeffrey") and the Registrar's records on the other ("Jeffery"). No issue was raised in relation to that discrepancy at trial or on appeal and I am of the view that the discrepancy is immaterial and caused no prejudice to the appellant in light of all of the evidence at trial.

Conclusion

[12] For the foregoing reasons, Mr. Valde's appeals against conviction are dismissed.

Released: 1 December, 2016

Footnote

[1] What is "reasonable care" or "due diligence" will involve an assessment of various factors which will vary depending on the nature of the activity, the character and foreseeability of any risk, the reasonable standards required to engage in that activity and so on.