Court File and Parties

Date: June 11, 2019

Case File No.: 18-10-1904

Ontario Court of Justice Provincial Offences Court

Between:

Her Majesty the Queen

— and —

Nicholas J. Minichiello

Before: Justice of the Peace C. Shoniker

Evidence and submissions heard at: Old City Hall Court, Provincial Offences Court on May 3, 2019

Dismissal of charges: May 24, 2019 with Reasons for Dismissal released June 11, 2019

Counsel: Ms. Kovats — Counsel for the Crown

Trial Status: Ex parte Trial (Defendant not present)

Provincial Offence Charges

1. Drive While License Suspended contrary to Section 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8

2. Fail to provide insurance card for inspection of officer contrary to Section 3(1) of the Compulsory Automobile Insurance Act

3. Fail to have evidence of the current validation of the permit affixed, in the prescribed manner, to the vehicle's plate – contrary to Section 7(1)(c)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8

Key Words

Drive license suspended, notice, due process, Registrar of Motor Vehicles, administrative suspensions, identification, informed plea by accused/defendant, collateral consequences

Legislation Referred to

Compulsory Automobile Insurance Act, Highway Traffic Act, R.S.O. 1990, c. H.8

Cases Referred to

• R. v. Buac, an unreported decision of the Court of Queen's Bench of Alberta
• R. v. Quick, 2016 ONCA 95
• R. v. Christman (1984) 1984 ABCA 296, 29 MVR 1, Alberta Court of Appeal
• R. v. Smith, 1991 Carswell Alta 695 (1991)
• R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299

Ruling of Justice of the Peace C. Shoniker

(Reasons for dismissal delivered in writing as follows):

The Charges

[1] Minichiello was charged with driving a motor vehicle while his driver's license was suspended, contrary to section 53(1) of the Highway Traffic Act Ontario.

[2] He was also charged with failing to have the validation of permit affixed to the plate, contrary to Section 7(1)(c)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and failing to produce insurance card to the officer upon request, contrary to Section 3(1) of the Compulsory Automobile Insurance Act.

Case History

[3] Prosecution had initially asked for adjournment of these trial proceedings, because they were not in possession of all of the expected Ministry documents. More particularly, the Prosecution did not have a Notice of Suspension from the Registrar of Motor Vehicles on behalf of the Ministry.

[4] However, due in part to the previous adjournment(s) requested and granted to the Prosecution, this Court denied the adjournment request and the matter proceeded to an ex parte trial, as requested by the Prosecution on the previous Court date.

[5] The Clerk of the court read the charge, after which this Court entered a plea of not guilty on behalf of the Defendant Minichiello to all of the 3 charges.

[6] Prosecutor Ms. Kovats called one witness for the prosecution: Officer Briggs, the investigating officer or officer in charge, and presented the Ministry documents which Crown had in their possession.

What was the Evidence?

[7] The Officer indicated that he has been with Toronto Police Service for only about 4 years.

[8] He testified that he was on duty the late evening of July 31, 2018.

[9] He was driving southbound on Victoria Park Avenue approaching Sunrise Avenue in the city of Toronto, when he saw a vehicle approaching northbound on Victoria Park south of Sunrise.

[10] He ran a plate check after which he continued to drive, and temporarily lost sight of the vehicle, before making a U-turn to drive to its location.

[11] The Officer pulled the vehicle over without incident, and asked the driver for his license, ownership and insurance.

Evidence to a Level Beyond a Reasonable Doubt?

[12] Thereafter, this Court found the Officer's testimony about his exchange with the driver to have been unclear and indefinite.

[13] The Driver told the Officer that he did not have his license with him and presented an "Age of Majority Card" with a photo to identify himself to the Officer.

[14] The Driver did not present an insurance card to the Officer.

[15] He said that he asked for license, insurance and ownership but failed to indicate that he asked the driver specifically for an insurance card.

[16] Nonetheless the Officer said that he was satisfied that the driver had insurance because he saw some show of 'online payments' on the Driver's phone.

[17] The Officer did not indicate what exactly he read or saw regarding insurance on the driver's phone, nor did he remember or make any police notes regarding the insurance company, brokerage, names of insured parties, whether the driver was insured for the car that he was driving and/or any other vehicle, primary or secondary driver.

[18] This Court recognizes that the Defendant is charged with failing to produce the insurance card upon request for inspection, rather than operation of a motor vehicle without insurance, but this Court is concerned nonetheless with the lack of clarity and specificity of information from Officer about his discussion with the Driver.

[19] This lack of detail and apparent lack of depth to the Officer's roadside investigation seemed to carry into the other areas of his inquiry with the Driver.

[20] The Defendant Minichiello was also charged with failing to have validation of permit affixed to the plate, but again the Officer gave little to no information regarding the actual plate of the vehicle, nor indicated whether this was part of the initial reason for his stopping the vehicle.

[21] He did not testify if there was a sticker of any kind or any year affixed to the vehicle or not, nor any type of description of the vehicle plate details and its location on the vehicle, even as part of his narrative about the events and this particular charge.

Was the Driver's True Identity Minichiello?

[22] Again, outside of the information the Officer later read from the Ministry documents (filed as Exhibits) about the description of the driver and the vehicle, the Officer provided NO additional information from personal recollection or based on refreshment of his memory with notes of his own.

[23] This apparent lack of detail and lack of depth of the roadside investigation factored into the Court's determination whether Prosecution proved each of all the elements of the offences beyond a reasonable doubt.

[24] A basic element of each and all three of the offences is the identity of the driver which must be established by the Prosecution beyond a reasonable doubt.

[25] The Officer testified that when he asked the driver for identification, the driver indicated that he did not have his driver's license with him and only provided an Age of Majority Card.

[26] The Officer seemed to have accepted the Driver at his word that that this was his only identification.

[27] The Officer looked at the 'Age of Majority card', and looked at the Driver, possibly still seated in the driver's seat, and said that he was satisfied with the 'likeness' of the person in front of him to the photo on an Age of Majority card, and therefore with the name Nicolas Minichiello on the card.

[28] But the Officer did not dig deeper. The Officer indicated that the Driver had a phone. Yet there was no suggestion that he asked the Driver to show him something more from his phone to verify identification and the name that the Driver was giving to the Officer.

[29] He did not have the Driver provide him with any names or contact information of other persons to verify identification, even though the Driver was not the owner of the vehicle.

[30] There was nothing more specific to establish or corroborate identification. And without the Defendant in the courtroom for this ex parte trial, there was no other testimony about the identity of the person seen behind the wheel, and no opportunity for courtroom identification by the Witness Officer.

[31] The Officer did not describe any identifying features of the Driver; and nothing, separate and apart from age, height and weight noted by the Ministry documents, was independently stated by the Officer.

[32] The time of the stop and the ticketing of the Driver was about 9:20 pm July 31st, 2018, so dusk at that time of his observation.

[33] It is also important to note that the Officer did not take a photo or scan of the Age of Majority card shown to him by the Driver that day, despite the fact of the ease with which any device including the Officer's phone could have taken such a scan or photo.

[34] No physical evidence was presented to this Court regarding the appearance of the person on the Age of Majority card, the appearance of the driver who was said to have a likeness to the Age of Majority card, nor any ministry-documented photo of Minichiello. Had the Officer copied the Age of Majority Card at the time, it might later have been used for purpose of the Officer's investigation after roadside and before this trial date.

[35] Seemingly, the Officer did not find it suspicious or at least odd that someone who identified as 32 years old, with DOB Nov 3 1986, would have only an Age of Majority when operating behind the wheel, without further scrutinizing the driver for some other form of identification.

[36] Age of Majority cards are oftentimes, although not exclusively, used by persons who are younger and who do not yet have a driver's license for photo identification.

[37] In fact, it is contrary to the provisions of the Highway Traffic Act to have and use a photo card at the same time as possessing a driver's license, per section 32.1 of the Act.

[38] And the Officer looked at the Age of Majority card and failed to note or recollect any information contained on the face of this card, as shown to him, including address.

[39] The Ontario Highway Traffic Act requires that the Officer at the very least obtain the correct name, date of birth and address of the Driver.

[40] Where for instance the driver's license of that driver is not provided to the officer, as stated in Section 33 of the Act:

As to Carrying Licences and Surrender on Demand

33 (1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act. R.S.O. 1990, c. H.8, s. 33 (1).

(i) Same, re novice driver rules

(2) Every accompanying driver, as defined under section 57.1, shall carry his or her licence and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act. 1993, c. 40, s. 3.

(ii) Identification on failure to surrender licence

(3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification. 1993, c. 40, s. 3.

[41] In the present case of Minichiello, the Officer did not obtain the address of Driver.

[42] In fact, the Officer testified that he did not specifically remember getting the home address told to him by the Driver, saying the driver told him that he lived 'somewhere along O'Connor' Avenue in Toronto (which was not the address for a person by the legal name Nicholas John Minichiello, as given by the Ministry documents).

[43] After the incident date, the Officer ordered the Ministry Documents and on receipt of those documents provided them to the Prosecutor's office.

Did the Ministry Documents Help with Identification?

[44] The Ministry documents provided to this Court did not provide much assistance with identification of the Driver, since there was no photograph provided by that documentation, and the Ministry documentation indicated only an age for Nicholas Minichiello date of birth, approximate weight, height, and that is it.

[45] Although the Ministry is equipped with facial recognition software, because the Officer did not retain a copy of the Age of Majority photo shown to him by the Driver, there was nothing against which the Ministry could make a photo comparison with their own licensing photos.

[46] Furthermore, the Ministry documentation furnished contradictory information that 'Nicholas Minichiello' resided in Kitchener, Ontario, as opposed to an address "somewhere along O'Connor Drive" in the City of Toronto.

[47] So without something more than a suggested 'likeness' of the Driver to an Age of Majority card shown to him roadside at 9:20pm – this Court is left in doubt about the identity of this Driver.

[48] And since this Trial was conducted as an ex parte trial, a Defendant did not come before the Court and under oath say that he is Minichiello.

[49] Also, Officer Briggs did not have opportunity to see a Defendant before the Court and say whether this person is one and the same person that he saw behind the wheel that night in July last year.

[50] Therefore, apart from Officer Briggs testifying that he saw a likeness with an Age of Majority card that gave the name of Minichiello, there was little to no other supporting identification evidence from the Ministry documents presented to this Court.

[51] Ms. Hessler was not called as a witness for the Prosecution re identification of the driver of her vehicle on July 31st, 2018. Although the Prosecution was not in any way compelled to call Ms. Hessler as a witness, her information to the Court might have been useful to the Prosecution's case.

[52] As a witness, Ms. Hessler would potentially, although not necessarily, revealed stronger information about the identity of the driver and circumstances of her car being driven by him on the date of July 31st 2018.

[53] This Court therefore concludes that the issue of identification of the Driver has not been established beyond a reasonable doubt by the evidence of the Prosecution.

Re Continued Factual and Legal Analysis by the Court

Nonetheless, this Court will continue with its analysis regarding the other elements of the offences, firstly with the charge of Driving while License Suspended and then looking at the other charges.

Was the Existence of a Suspension Proven?

Leaving aside the issue of identification of the Driver, and assuming instead that the element of identification of the Driver being Minichiello is not in issue, this Court will now consider whether the remaining elements of the Crown's case, particularly regarding the charge of drive while license suspended, have been proved beyond a reasonable doubt.

[54] The question considered is whether the Crown has proved beyond a reasonable doubt that the Driver, assumed to be Nicholas Minichiello for purpose of this analysis, drove while his license was suspended in contravention of the provisions of the Highway Traffic Act and its supporting regulations.

[55] Ministry of Transportation Documents were submitted by the Crown as evidence and entered as Exhibits.

[56] Exhibit 1 is the Ministry Document commonly referred to and titled by the Ministry as a "Driver Status by Date".

[57] This document stated that a Nicolas John Minichiello of Kitchener Ontario … indicating approximate height, weight, age, DOB … and ends by stating that "on the date of July 31 2018 driver's license was suspended".

[58] However, Exhibit 1 did not provide a Suspension Order or identifying number; nor did it give a start and end date to the license suspension; nor did it indicate the reason for the Registrar of Motor Vehicles ordering the suspension of his license.

[59] Exhibit 1 failed to provide information whether there was an administrative order of the Registrar - initiated by the Ministry; or, whether there was a license suspension by Criminal or Provincial Offence Court Order; or whether there was a suspension of license initiated due to another reason, such as, a family member of a driver providing information to a doctor and Ministry regarding health concerns impacting the ability of the driver to operate a vehicle.

[60] Exhibit 1 said "driver's license was suspended". Generally speaking, a driver needs to be given some form of notice of license suspension, with reason for a license suspension, so as to demand compliance, as well as provide an opportunity to potentially challenge or appeal the Order of the Registrar, particularly if it was an administrative suspension.

[61] Exhibit 2 is the second Ministry document submitted by the Prosecution into evidence.

[62] Exhibit 2 is titled by the Ministry as "An Extended Driver Record Search for Criminal Code Convictions". This document has the same 'cut and paste type' tombstone information re a Nicolas John Minichiello who resides in Kitchener, again with the exact same information re dob age height and weight, with nothing added by the Officer's testimony and nothing directly on point.

[63] But at the bottom of Exhibit 2, under the subheading titled "Conviction/discharges and other actions" is written, "11/07/07 suspension re unpaid fine, suspension no. 1105755 and demerit points 0".

[64] But again, this Court sees deficiencies with this Ministry document as supporting clear proof of a driving suspension.

[65] To begin, this document seemingly concerns a license suspension coming up by inquiry under an "Extended Driver Record Search for Criminal Code Convictions". In this case, the Prosecution has made the argument that this 2011 administrative suspension for non-payment of fines is the same suspension order which prohibited Minichiello from driving in July 2018.

[66] There was no real explanation from Officer Briggs why an administrative order of the Registrar for non-paid fines might surface under an extended criminal record search, particularly when the Prosecution has not argued a suspension of Minichiello's license due to Criminal Court or Provincial Offences Court conviction.

[67] Therefore this Court is left to wonder whether the suspension indicated for 2011 had anything necessarily to do with the suspension indicated for July 2018.

[68] Again, Exhibit 2 failed to indicate a start date and or an end date of the license suspension period – including whether and if it was still in effect some 7 years later.

[69] Exhibit 2 indicated a suspension number, but Exhibit 1 does not have a suspension identifying number. Therefore the two Ministry documents cannot be cross-referenced with one another to know whether the documents are referring to one and the same suspension.

[70] Exhibit 3 was the 3rd and final Ministry document submitted by the Prosecution into evidence. This document is titled by the Ministry as a "Plate by Date Search".

[71] Exhibit 3 indicated that the Owner of the plate and the vehicle to which the plate was attached. The vehicle was described in this document as a Honda 2 door sedan. In his testimony the Officer described the vehicle as a Honda sedan.

[72] Exhibit 3 indicated that one "Stacey Hessler" was the Owner of this vehicle plate on the date of July 31 2018, and had registered the plate June 2 2018. But, Mr./Ms. Hessler had an address in New Hamburg Ontario (and NOT somewhere along O'Connor Drive in Toronto).

[73] There was no suggestion in his evidence that Officer Briggs attempted to or made contact Mr./Ms. Hessler during the course of his investigation, between the incident dates of July 31 2018 to this trial May 2019.

[74] Finally, Exhibit 3 is again another Ministry document which does not give any solid answers about a license suspension in effect at the time.

[75] A certified copy of the Registrar's Notice of license suspension to the Defendant (if such a Notice existed) might have provided the connection to make sense of the varied Ministry documents provided to this Court.

What Should We Know Generally About Registrar's Notices?

[76] The Prosecution did NOT present to this Court a Notice of License Suspension document from the Registrar of Motor Vehicles (on behalf of the Ministry of Transportation) sent to Minichiello.

[77] Again, such Notice would have provided the necessary details regarding the nature of any suspension in place against Minichiello on July 31st 2018, and could have been cross-referenced against the other Ministry documents.

[78] Speaking more generally, such Notices from the Registrar are signed and sealed by the Registrar of Motor Vehicles, appointed by the Ministry of Transportation.

[79] Such Notices from the Registrar are sent in a prescribed manner in accordance to the Act and its Regulations.

[80] Such Notices advise a subject Driver of the Registrar's decision to suspend their driver's license, the identifying number of that suspension order, the reason for the Registrar's order of suspension and the period of that suspension and/or start and or end dates. In some cases, such notices indicate the period of time that the recipient has to file an appeal to the Registrar of the Registrar's decision.

[81] The Registrar of Motor Vehicles is required to provide such Notices to drivers, as part of the duties and responsibilities conferred by the Minister of Transportation on the Registrar, and the delivery of such Notices must be in accordance with the administrative provisions of the Highway Traffic Act of Ontario and its supporting Regulations.

[82] As stated by the Highway Traffic Act, the Registrar shall act under the instructions of the Minister and Deputy Minister and has general supervision over all matters relating to highway traffic within Ontario, and shall perform the duties that are assigned to him or her by this Act, by the Lieutenant Governor in Council, or by the Minister or Deputy Minister. R.S.O. 1990, c. H.8, s. 3 (2).

What was the Trial Strategy of the Prosecution?

[83] A Notice of Suspension document is ordinarily submitted as part of a Prosecutor's case against any defendant charged with driving while license was suspended.

[84] In the present case, the Crown did not present this Ministry Document.

[85] Therefore, this Court has not received any evidence to indicate that such a Notice from the Registrar to the Defendant Minichiello ever existed and/or was delivered to the Defendant Minichiello.

[86] Madame Prosecutor indicated in her opening submission that they did not have such a document pertaining to Minichiello, but, nonetheless, they intended to proceed nonetheless to trial and argue that the Crown's case against Minichiello could be established without this Registrar's Notice of Suspension document.

[87] Prosecutor Ms. Kovats argued that the Registrar's Notice of Suspension was not required in this case for the Crown to prove the offence that Minichiello drove while his license was suspended, relying instead on the Officer's testimony and the other Ministry documents filed as Exhibits.

Registrar's 'Notice' – Is it a Consequence or Component?

[88] Prosecution's argued that the 3 Exhibits (without the Notice) in combination with Officer Brigg's testimony was sufficient evidence upon which this Court could convict Minichiello on the charge of driving while his license was suspended.

[89] In making this argument Ms. Kovats referred to the Case of R. v. Quick.

[90] This was a case from the Criminal Ontario Court of Justice, wherein Mr. Quick faced a number of criminal charges.

[91] He was represented by a lawyer and through plea negotiation between defence and the crown, a deal was struck whereby he would plead to some of his charges (presumably with some charges withdrawn), with an anticipated position regarding the sentence from the Court.

[92] He plead to the charges of dangerous driving, criminal harassment and breach of court order, all charges under the Criminal Code.

[93] Quick had been advised by his lawyer at the time of the plea negotiations that he was looking at a 3 year license suspension. Upon the plea inquiry of the Judge, the Clerk of that Court read the statutory warning under the Criminal Code re license suspension.

[94] Everyone, including the Crown, agreed that Quick was never specifically told nor did anyone realize that his guilty plea would lead an indefinite license suspension, as opposed to a suspension for a number of years.

[95] However, sometime after the date of resolution in the Criminal Court, Mr. Quick received Notice that the Registrar of Motor Vehicles would suspend his driver's license indefinitely due to his previous driving-related convictions within a ten year period. This life-long license suspension was obviously being imposed by the Registrar in addition to the statutory period for the dangerous driving conviction imposed by the Criminal Court Order.

[96] Quick appealed his conviction, seeking to put aside his conviction and sentence re the charge of dangerous driving, submitting that he did not know nor was he told that his driver's license would be indefinitely suspended by the Ministry.

[97] The Court of first appeal, the Superior Court denied Quick's appeal to set aside his guilty plea and conviction on the charge of dangerous driving. Ms. Kovat's referred to this decision in her closing argument, indicating that the Court held that Quick was sufficiently notified and/or informed before and upon his guilty plea, such that the conviction should stand.

[98] But the Quick decision was further appealed to the Court of Appeal for Ontario, cited at R. v. Quick, 2016 ONCA 95, and the Ontario Court of Appeal decided favorably for him.

[99] The Court of Appeal for Ontario found that Quick would not necessarily have entered a guilty to the criminal charge of dangerous driving had he understood or been given notice of the indefinite driver license suspension prior to his plea.

[100] Significantly, the Ontario Court of Appeal came to this determination even though such driver's licensing and suspension information was outside of the arena of the Criminal Courts and could be regarded as a collateral consequence to Quick's plea.

[101] The Respondent/Crown argued that it was of no legal consequence since even with the additional information beforehand, he still would not have a viable defence to the charge of dangerous driving. BUT significantly, the Court of Appeal stated that this was NOT the critical question.

[102] Instead, the Court of Appeal said the real question was:

• Whether, at the time of entering his guilty plea, he was sufficiently informed and notified of the potential consequences; and
• Whether the significant and greater consequence than was discussed with Counsel and the Court at the time of his entering a plea likely would have influenced his decision to enter a guilty plea to that Dangerous Driving charge.

[103] In their words, the Court of Appeal stated that, instead, the most important and second question was:

• "Did Quick have to understand the HTA consequences of his guilty plea for his plea to be informed?"

[104] Appellant Quick argued, "That the collateral consequences of a guilty plea, including driver's license suspension under the HTA are part of the consequence of a plea. An accused must understand before his pleas will be valid."

[105] The Ontario Court of Appeal agreed that:

• "When a person is unaware of the consequences then the plea will be uninformed".

[106] The Court of Appeal went on to refer to the particular provisions of the Motor Vehicle Administration Act RSA 1980.

[107] The Court of Appeal found that there could be:

• "No doubt that the indefinite suspension of Quick's driver's license under the HTA, though a collateral consequence of his plea, was a 'legally relevant' penalty" (paragraph 30).

[108] Further, the Ontario Court of Appeal directed:

• "What is called for is a fact–specific inquiry in each case to determine the legal relevance and significance of the collateral consequences to the Accused" (paragraph 33).

[109] Ultimately the Court of Appeal allowed the appeal, setting aside the dangerous driving conviction and sentence and ordering a new trial for Quick re this charge.

[110] Respectfully, this Court does not find that the decision in R. v. Quick bolstered the Prosecution's argument in our present case of Minichiello, since it was not factually on point.

[111] However, in this Court's view, the Quick decision by the Ontario Court of Appeal underscored the significance of providing opportunities for Accused Persons/Defendants to make an informed response to a charge against them.

[112] 'Notice' in the present case is arguably a different type of 'notice' than that spoken about in Quick.

[113] The question about 'Notice' in this case of Minichiello is much less about being the potential consequences of an illegal act, but instead about the act itself of a driver being told not to drive and thereafter driving.

[114] The question about 'Notice' of License Suspension from the Registrar, providing cause and duration, and thereafter any alleged breach are themselves the component parts of the offence, about which Prosecutor Ms. Kovats is seeking to prove beyond a reasonable doubt at this trial.

[115] In other words, the 'notice' might be informational in nature, or it might alternatively be more in the nature of an order to which compliance is expected and/or demanded.

Can a Defendant Get 'Notice' Even When the Defendant Did Not Get Notice? Yes … 'Deemed'!

[116] If the Registrar of Motor Vehicles, acting on behalf of the Ministry issues and sends the Defendant the Notice of License Suspension, in compliance with the rules and regulations, then after a given number of days, the Driver is 'deemed' to have received that Notice.

[117] Furthermore, as Judge Mustard noted, the Crown had established that Notice of Suspension to Smith had been 'served' by registered mail, in accordance with service provisions of Section 19 of the Alberta Act.

[118] The Registrar of Motor Vehicles acts with the authority and powers vested by the Ministry, including the suspension of drivers' licenses and notices thereof, in the form and by a manner as legislated.

[119] Section 19 of the Alberta Act is similar to provision of the Ontario Highway Traffic Act, including section 5 provisions of our legislation, setting out the powers of the Registrar of Motor Vehicles, administrative penalties, notice and service provisions, penalties and discretion afforded to the Registrar regarding the imposition regarding certain financial penalties and/or administrative charges.

[120] Judge Mustard paraphrased a general review of the administrative provisions of the Alberta legislation:

• Section 18(13) of the Alberta Regulation 22/76 states that Motor Vehicle Administrative Act provides for suspension of the driver's license of a person who has accumulated more than a certain number of demerit points
• Section 18(13.1) of the Regulation stated that a person's operating (driving) license is not suspended until he is given written NOTICE, under section 18, of the suspension.
• Subsection 14 states how much notice may be given to the Defendant
• Subsection 19 of the Act provides that the Notice of Suspension (of driving or operating license) is sufficiently served if mailed in the manner indicated in the section.

[121] After his review of these administrative provisions of the Albertan legislation, Judge Mustard found that "Notice" to the Defendant Smith was satisfied.

[122] By contrast to our present case of Minichiello, the Crown has not provided Notice of License Suspension form the Registrar – neither for a suspension in 2011 indicated by Exhibit 1, nor for a suspension in 2018 indicated by Exhibit 2, and it remains unclear in our case whether suspensions were ordered administratively by the Registrar or by a Court.

[123] At paragraph 8 of his Decision, Judge Mustard stated that the 2 Exhibits, in addition to the admission of driving by the accused Smith established a prima facie case for the Crown.

[124] Judge Mustard also made a comprehensive review of the case law on the issue of the nature and form of 'notice' to a defendant.

[125] Such review included the case of R. v. Buac, an unreported decision of the Court of Queen's Bench of Alberta, in which the Honourable Justice Jones upheld the dismissal of charge against Defendant Buac where Notice of Suspension did not clearly state the start and end dates of the suspension.

[126] In his own case of R. v. Smith, the Honourable Justice Mustard accepted the testimony of Defendant Smith that he did not receive it despite reasonably diligent efforts to check for mail despite the Prosecution's proof that a Notice of License Suspension had been 'served' by registered mail delivery in accordance with the Act and its Regulations.

[127] Therefore, notwithstanding proper service of Notice in accordance with Section 19 of the Alberta Act, in Judge Mustards view Defendant Smith had effectively refuted 'deemed notice' by his defence of due diligence.

[128] In the present case of Minichiello, since the Prosecution did not present a certified copy of Registrar's Notice of Suspension to Minichiello to this Court, 'deemed notice' was not arguable by the Prosecution.

Whose Suspension is it, Anyways?

[129] In Regina v. Smith, 1991 Carswell Alta 695 (1991), Provincial Court Judge Mustard of the Alberta Court in this Court's view provided a thoughtful review about Notices of Suspensions, how they come about and for what reason.

[130] This Court found the Smith case particularly instructive as the facts were very similar to the case at hand and the legislation and regulation around the Notice of Suspension to a Defendant was similarly considered.

[131] Smith was charged with driving while license suspended under section 5.1 of the Alberta Act, Motor Vehicle Administration Act RSA 1980, and sections 5.1, 19.

[132] Smith's driving license had been suspended because of too many accumulated demerit points.

[133] Smith's license had been suspended by the Order of the Registrar of Motor Vehicles in Alberta, rather than by order of a criminal or provincial offences court.

[134] Notice of driver license suspension, as required by section 19 or their Alberta Act, similar to our Ontario legislation, is to be served by the Registrar of Motor Vehicles by registered mail.

[135] Defendant Smith told the Alberta Court that he had never received the Notice document, despite his regular mail pickups and checks for mail at that mailing address and despite the fact that the Crown presented a Notice to Smith from delivered by the Registrar's office.

[136] Judge Mustard noted that the Crown had filed the necessary exhibits, which included the Registrar's Notice of Suspension, with proof of service, and was thereby satisfied that the Defendant's driving license had been suspended due to accumulated demerit points.

[137] But the Defendant Smith argued that although Notice had been sent, and despite his reasonable efforts to check his mail, he had never received it.

[138] Prosecutor argued that the Court find that Notice was 'deemed', and his saying he did not know was not enough did not excuse the Defendant from responsibility.

[139] Judge Mustard acknowledged that a Prosecutor was not obliged to prove that a Defendant actually knew of a driving suspension at the time of his driving, IF the Defendant had been properly served with Notice of the Suspension, as per the legislation and regulations. In other words, a prima facie case could be made out against the Defendant with the necessary Ministry documents (even if the Defendant did not actually receive the Notice), and thereafter the Defendant could argue due diligence on a balance of probabilities.

[140] But that being said, Judge Mustard seemed to go further to add an additional layer to the issue of 'need to know' when he pointed out, in the Christman case, the driving license suspension "arose automatically as a matter of law upon conviction [by a Court], rather than one imposed by the Registrar of Motor Vehicles. R. v. Christman (1984) 1984 ABCA 296, 29 MVR 1, Alberta Court of Appeal.

[141] In the present case of Minichiello, the Prosecution's exhibit evidence suggested that Minichiello's license was or might have been suspended for reason of unpaid fines. If true, an Order of suspension of license due to unpaid fines would have been generated by the Registrar of Motor Vehicles, rather than by an Order of a Criminal or Provincial Offences Court.

[142] Such an order against Minichiello would then be described as an administrative order.

[143] However, since one of the Exhibits was called an "extended criminal records search" inquiry, then there is also some suggestion of a Criminal Court record, in which case, the Court order might have initiated a suspension order. The Prosecutor's Exhibits were not entirely clear about this.

[144] If it was the Registrar's own suspension order, it provides all the more reason for the Crown's Office to prove the Registrar's suspension and notice.

[145] This is not to say that Notice of the Registrar would not still be required where suspension came about by Court Order.

[146] Even in the case of a Court-ordered license suspension, the R. v. Quick case demonstrated that Notice of the Court-Ordered suspension would not have been sufficient standing alone. In Quick, the Court-ordered suspension was 3 years but conviction on the dangerous driving charge triggered a life-time suspension period against Quick by the Ministry of Transportation, and therefore the Registrar's Notice of Suspension provided further and contrary information.

Why Send Drivers Notices of License Suspensions?

[147] This Court finds it helpful to understand that a person's driver's license can be suspended for a number of reasons, and in some cases, those suspensions are at the behest of the Registrar of Motor Vehicles and in other cases, those license suspensions are not initiated by Ministry action.

[148] A Ministry-ordered suspension can be ordered for reasons, including but not limited to:

• Non-payment of a fine for a driving-related offence
• Accumulation of too many demerit points
• Conviction for a driving offence, but where the Ministry Orders a license suspension for a period different (and usually longer than) the period of suspension indicated by the Criminal Code suspension period.

[149] A Provincial or Criminal Court-ordered suspension may occur in situations, including but not limited to:

• Drive license suspensions on conviction for impaired driving and/or dangerous driving, under the Criminal Code
• License suspension on conviction for refuse breath sample, under the Criminal Code
• Novice drivers convicted in the Criminal or Provincial Offences Court of having alcohol or drugs in their system at the time of operating a motor vehicle.

[150] In fact, more recently with the recent amendments to the Highway Traffic Act, R.S.O. there is now an even greater likelihood for drivers finding out, directly or indirectly, that their licenses have been suspended for various reasons, including but not limited to convictions under a broader range of legislation as well as non-payment of fines.

[151] Suspensions of driving licenses is not simple matter.

[152] For instance, if one were to look just at Section 46 of the Highway Traffic Act, R.S.O. dealing with non-payment of fines under various types of legislation, the Registrar on being informed "may" and in some cases "shall" suspend a Driving license. For example:

Section 46 – Non-Payment of Fines

46 (1) This section applies if a fine is imposed on conviction for an offence and the offence is an offence,

(a) under this Act [Highway Traffic Act, R.S.O. 1990] or the regulations;

(b) under any other Act listed in the Schedule to this section or under the regulations made under such an Act;

(b.1) under subsection 12 (1) of the Cannabis Control Act, 2017;

(c) under clause 17 (1) (a) or subsection 24 (1) of the Fish and Wildlife Conservation Act, 1997;

(d) under subsection 32 (1) of the Liquor Licence Act; or

(d.1) under clause 17.1 (1) (a) of the Smoke-Free Ontario Act, 2017; or

(e) that was committed with a motor vehicle under section 249, 249.1, 249.2, 249.3, 249.4, 252, 253, 254, 255 or 259 of the Criminal Code (Canada). 1993, c. 31, s. 2 (6); 1997, c. 41, s. 120; 2001, c. 9, Sched. O, s. 3; 2002, c. 18, Sched. P, s. 14 (1); 2007, c. 13, s. 9; 2017, c. 26, Sched. 1, s. 31; 2018, c. 12, Sched. 1, s. 23; 2018, c. 12, Sched. 4, s. 11.

a) Order or direction

(2) If the payment of a fine imposed on conviction for an offence is in default, an order or direction may be made under section 69 of the Provincial Offences Act directing that the convicted person's driver's licence be suspended and that no driver's licence be issued to him or her until the fine is paid. 1993, c. 31, s. 2 (6).

b) Suspension by Registrar

(3) On being informed of an outstanding order or direction referred to in subsection (2), the Registrar shall suspend the person's driver's licence if it has not already been suspended under another order or direction referred to in subsection (2). 1993, c. 31, s. 2 (6).

c) Reinstatement

(4) On being informed that the fine and any applicable administrative fee for reinstatement of the person's driver's licence have been paid, the Registrar shall reinstate the licence, unless he or she has also been informed that,

(a) another order or direction referred to in subsection (2) is outstanding;

(b) the licence is suspended under any other order or direction or under another statute;

(c) interest charged or a penalty imposed under subsection 5 (2) has not been paid; or

(d) an applicable prescribed administrative fee for handling a dishonoured payment has not been paid. 1993, c. 31, s. 2 (6); 2017, c. 2, Sched. 17, s. 4

d) Regulations

(5) The Lieutenant Governor in Council may make regulations prescribing forms and procedures and respecting any matter considered necessary or advisable to carry out effectively the intent and purpose of this section. 1993, c. 31, s. 2 (6).

[153] A close review is necessary to have a clear understanding of the law regarding license suspensions, particularly in understanding how all the moving parts under the varied regulatory Acts, and between the Courts and the Ministry fit together.

'Due Process of the Law'?

[154] If a Court Justice or Registrar or Court has given Notice of their decision to suspend the driver's license, that Driver ordinarily has the right to appeal that decision and later come to Court if there was an alleged breach of license suspension.

[155] In the present case, the Court does not know if a Notice was produced and sent by the Registrar to Minichiello and whether such opportunity to appeal was given.

[156] In this Court's view, Notice to a Defendant Minichiello of Registrar's Suspension is particularly significant in legal proceedings such as these, where the Prosecution has the legislated authority to proceed to trial and secure conviction, even in the absence of the Defendant.

[157] If found guilty of the offence of Driving while License Suspended, even on an ex parte basis, the Defendant is automatically subject to the offence record, further and additional period of license suspension, fine and potentially jail (although a jail term is not being sought by the Prosecutor in the present case).

[158] The charge of Drive While License is suspended is a strict liability offence. This is one of the 3 different types of regulatory offences as set out by the Supreme Court of Canada in the case of R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.

[159] Unlike the other types of regulatory offences, (absolute liability or mens rea type of regulatory offences), even if the facts were proved by the Prosecutor, a driver can still defend the charge by showing on a balance of probabilities that he made reasonable efforts to informed himself and act within the law.

[160] Such opportunity to present due diligence to a Court of law in one's defence should not be so easily dismissed.

[161] This again brings home to this Court the significance of the Registrar and Ministry being held to their responsibilities, including Notice to a driver, and proof of those measures given to the Court, in fairness to a defendant-driver and reflective of due process of the law.

What is the Conclusion of the Court?

[162] Upon this Court's review of the facts of this case re Defendant Minichiello, this Court concludes that the Prosecution has not proved beyond a reasonable doubt the following elements of each and/or all 3 of the HTA offences alleged against Minichiello:

[163] In the present case of Minichiello, respectfully, the Prosecution did not establish beyond a reasonable doubt:

• The existence of any and/or a particular driver's license suspension in effect against Minichiello on July 31st, 2018, and
• Notice from the Registrar of Motor Vehicles to Minichiello of a Licence Suspension, if ordered, by a Court and/or by the Registrar, for compliance to have been demanded of him, and
• Identification of the Driver on July 31st, 2018 as Nicolas Minichiello of Kitchener, Ontario (as named on the Age of Majority Card); and therefore also, failed to establish
• Identification of Driver who allegedly did not surrender his insurance card, and
• Identification of the Driver who failed to have validation of permit affixed to the vehicle plate.
• Sufficient detail regarding the alleged offence of failing to have validation of permit affixed to vehicle plate

[164] Therefore, had this Court been satisfied regarding the identity of the driver being Minichiello beyond a reasonable doubt – which this Court was not – this Court would dismiss all 3 charges for reason that each and all elements was not proved by the Prosecution beyond a reasonable doubt.

Justice of the Peace C. Shoniker Old City Hall Toronto Courthouse

Reasons for Dismissal released on June 11, 2019