Supreme Court of Canada

R. v. MacDougall, [1982] 2 S.C.R. 605

Date: 1982-11-23

Her Majesty The Queen Appellant;

and

Bertram Gerard MacDougall Respondent.

File No.: 16617.

1982: February 18; 1982: November 23.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA

Trial—Defences—Mistake—Charge of driving without a licence—Licence revoked for criminal driving offence but reinstated pending appeal—Respondent knew appeal dismissed but not officially notified of revocation following appeal—Absence of mens rea—Whether or not charge one of strict liability so importing defence of mistake of fact—Whether or not effect to be given to defence of “officially induced error”—Motor Vehicle Act, R.S.N.S. 1967, c. 191, ss. 250,258(2).

Respondent’s driving privileges, cancelled following his conviction for a driving related criminal offence, were reinstated during the appeal process and finally revoked on the appeal’s dismissal. Although aware of the disposition of the appeal, respondent had not yet received the Order of Revocation of License when he was stopped by police and asked to present his licence. A summary offence ticket was later issued to respondent charging him with driving while his licence was cancelled. This appeal related to that charge. The trial judge’s decision to dismiss it was upheld on appeal by both the County Court and the Court of Appeal.

Held: The appeal should be allowed.

The offence created by s. 258(2) of the Motor Vehicle Act was one of strict liability and a defence was available to the accused if he “reasonably believed in a mistaken set of facts which, if true, would render” his act of continuing to drive without a licence, an innocent one. Respondent’s mistake, however, because of s. 250(3) of the Act, was one of law in relation to his right to drive after his appeal had been dismissed. The effect

[Page 606]

of s. 19 of the Criminal Code, which provides that ignorance of the law by a person who commits an offence is not an excuse for committing that offence, is that a mistake of law does not afford respondent a defence. As the accused was not misled by an error on the part of the Registrar of Motor Vehicles, it was unnecessary to consider a defence of justification arising in the situation of a mistake of law occasioned by “officially induced error”.

R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, considered; R. v. Prue, R. v. Baril, 1979 CanLII 227 (SCC), [1979] 2 S.C.R. 547, referred to.

APPEAL from a judgment of the Nova Scotia Court of Appeal (1981), 1981 CanLII 3275 (NS CA), 60 C.C.C. (2d) 137, 46 N.S.R. (2d) 47, 89 A.P.R. 47, dismissing an appeal from a judgment of Sullivan C.C.J. affirming a judgment of Campbell P.C.J. dismissing the charge against respondent. Appeal allowed.

Kenneth Fiske and Dana Giovannetti, for the appellant.

Hugh Maclsaac and Harold A. Maclsaac, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought by leave of this Court from a judgment of the Appeal Division of the Supreme Court of Nova Scotia (Jones J. dissenting) dismissing an appeal from a judgment of His Honour Judge Alan E. Sullivan affirming the judgment rendered at trial by Judge S.D. Campbell by which that judge dismissed the charge laid against the respondent for driving his motor vehicle while his licence was cancelled, contrary to s. 258(2) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191, which reads as follows:.

258. …

(2) A person shall not drive a motor vehicle while his license or privilege of obtaining a license is cancelled or suspended under this Act.

[Page 607]

Leave to appeal to this Court was sought on the following questions of law, namely:

1. That the majority of the Appeal Division of the Supreme Court of Nova Scotia erred in law in giving effect to the defence of officially induced error;

2. That the Appeal Division of the Supreme Court of Nova Scotia erred in law in holding that an offence under ss. (2) of s. 258 of the Motor Vehicle Act, R.S.N.S. 1967, c. 191 as amended is an offence of strict liability rather than an offence of absolute liability.

It will be more convenient in my view to first consider the second of these grounds as it is essential before proceeding with any consideration of the issues raised by this appeal to be satisfied as to the nature of the offence with which the respondent is charged.

Three classes of statutory offences have been recognized in the reasons for judgment of my brother Dickson in R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at pp. 1325-26 where he said:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.

[Page 608]

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

[The underlining is mine]

In the same case, Mr. Justice Dickson went on to say:

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

I am in agreement with all of the judges in the courts below, including the dissenting judge in the Court of Appeal, in finding that as the offence here charged is one concerning the public welfare it was properly characterized as “an offence of strict liability” within the meaning of the classification stipulated by Mr. Justice Dickson (supra) and that a defence is accordingly available to the accused if he “reasonably believed in a mistaken set of facts which, if true, would render” his act in continuing to drive his motor vehicle without a licence, an innocent one.

The circumstances giving rise to this appeal are not seriously in dispute and can be summarized in their essentials as follows:

On March 6, 1979 the respondent was convicted of “fail duty at scene of accident contrary to section 233-2 of the Criminal Code,” as a result of which an order of revocation of his licence to drive

[Page 609]

was sent to him on April 10, 1979 by the Registrar of Motor Vehicles of the Province of Nova Scotia in conformity with the provisions of s. 250(1) of the Motor Vehicle Act. In due course the respondent appealed his conviction and on May 1, 1979 a notice of re-instatement of his driving privileges as of that date was sent to him. On December 21, 1979 a written decision was filed with the Clerk of the County Court dismissing the appeal and, of particular importance in this case, some time in January 1980, the respondent’s solicitor advised him of the fact that his appeal had been dismissed.

It was not until January 25, 1980, at about 9 a.m., that the respondent was stopped by the R.C.M.P. while driving to work in his motor vehicle at which time his licence was called for by the police. On the evening of the same day the respondent received in his mail a notice entitled “Order of Revocation of License” signed by the Registrar of Motor Vehicles purporting to be issued “pursuant to the authority vested in… [him] by Section 250 of the Motor Vehicle Act.”

It was not until March 11, 1980 that a summary offence ticket was issued to the respondent charging him with the offence with which we are now concerned. As the actions of the Registrar of Motor Vehicles purported to be in the exercise of his authority under s. 250 of the Motor Vehicle Act, I find it desirable to reproduce the relevant portions of that section in full. That section reads as follows and I have underlined those portions which I consider to be particularly relevant:

250 (1) Subject to subsections (3) and (4), the Registrar or the Director of Highway Safety shall revoke effective the date of conviction the driver’s license of any person upon receiving a record of his conviction for any of the following crimes or offences:

(a) manslaughter resulting from the operation of a motor vehicle, in violation of Section 219 of the Criminal Code;

(b) an offence against Section 203, 204, 233, 234, 235, 236, 238 or 295 of the Criminal Code;

(c) theft of a motor vehicle in violation of Section 294 of the Criminal Code;

(d) any offence against the Criminal Code designated by the Governor in Council;

[Page 610]

(e) making a false affidavit, declaration or statement to the Department or the Registrar in violation of this Act; or

(f) a violation of Section 258 of this Act.

(2) Notwithstanding subsection (1) but subject to subsections (3) and (4), when a person is convicted of any of the crimes or offences mentioned in subsection (1), the driver’s license or the privilege of obtaining a driver’s license is thereupon and hereby revoked and shall remain revoked.

(3) When a person appeals against a conviction for an offence mentioned in subsection (1) in the manner prescribed by law, the person shall be deemed not to be convicted for the purpose of subsections (1) and (2) and the provisions of this Act until the appeal is heard, determined and dismissed or is abandoned or the right to proceed with the appeal extinguished and the driver’s license or the privilege of obtaining a driver’s license shall be thereupon and hereby revoked and shall remain revoked.

(4) A person whose driver’s license is revoked under this Section may drive a motor vehicle until noon the third day after the date of his conviction as will permit him to return to his place of residence or to sell or dispose of a motor vehicle registered in his name.

(5) When a court or magistrate convicts a person of any of the crimes or offences mentioned in subsection (1), the court or magistrate shall communicate to the person the effect of this Section, but the failure to do so shall not affect in any way the validity of the revocation.

(6) When a court or magistrate convicts a person of any of the crimes or offences mentioned in subsection (1) the person whose license is revoked shall produce the license forthwith to the court or magistrate who shall make thereon an endorsement in the following words or words to the like effect;

“not valid as of noon the

day of , 19”

and he shall sign the endorsement, but the failure to do so shall not affect the validity of the revocation.

(7) When a person appeals against a conviction for an offence mentioned in subsection (1) in the manner prescribed by law, the court or magistrate whose conviction is appealed from may endorse the driver’s license using the following words or words to like effect:

[Page 611]

“Revocation stayed pending appeal,”

and he shall date and sign the endorsement.

(8) Where an appeal is heard, determined and dismissed or is abandoned or the right to proceed with the appeal is extinguished, the court to which the appeal was made or the Registrar may order the person to appear and surrender his driver’s license and the order may be enforced by a peace officer.

The respondent does not question the validity of his conviction on March 6, 1979 for a breach of s. 233(2) of the Criminal Code nor the notice of the order of revocation of his licence which was sent to him on April 10 of that year by the Registrar of Motor Vehicles. It is apparent that pursuant to s. 250(1) of the Motor Vehicle Act, proof of such conviction carries with it a mandatory requirement that the Registrar shall revoke the licence of a convicted driver, but what is at issue here is the status of such a driver after he has asserted an appeal from his conviction and this involves a close consideration of s. 250(3) which provides that when a person who has been convicted under s. 233 of the Criminal Code appeals against that conviction he “shall be deemed not to be convicted for the purpose of subsection… (1)… [of s. 250] until the appeal has been heard and dismissed” and “the driver’s license or the privilege of obtaining a driver’s license shall be thereupon and hereby revoked and shall remain revoked.”

In acquitting the respondent the trial judge made the following findings with respect to the effect of the notice entitled “Order of Revocation of License” which was not received by MacDougall until the afternoon of January 25 whereas the present charge alleges a breach of s. 258 of the Motor Vehicle Act at 9 a.m. on the morning of that day.

In this respect the learned trial judge found:

I believe Mr. MacDougall when he says that the actual certified mail arrived that afternoon and the remaining question, one of law and one of fact to be disposed of, is whether or not that he believed that he was entitled to

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drive and whether or not that gives him a defence. First of all, I believe Mr. MacDougall when he tells me he was under the honest impression that he was entitled to drive pending some notification from the Department of Motor Vehicles, the Registrar specifically, telling him that he was once again suspended from driving as a result of the disposition of his appeal. I base that on his appearance and testimony that he gave on the stand, his behaviour when he was accosted, he was open and obvious in his driving…

The trial judge also found of MacDougall that

His previous experiences with the notices from the Department and the correspondence from the Department, I would take it to lean Mr. MacDougall towards the legitimate understanding that he might reasonably expect further indication from the Department, after the appeal was disposed of.

His Honour Judge Sullivan and the majority of the Court of Appeal affirmed these findings and held that they disclosed a defence to the charge here laid on the ground that they disclosed a mistake of fact on the part of the accused within the meaning of R. v. Sault Ste. Marie (supra), whereas I am unable to treat the respondent’s mistake otherwise than as a mistake of law in relation to his right, because of s. 250 (3), to drive after his appeal had been dismissed. This was a mistake of law which does not afford the respondent a defence having regard to s. 19 of the Criminal Code which provides that:

19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

This is no more than a codification of the common law rule and undoubtedly applies in the present case.

In this regard Macdonald J.A., speaking on behalf of the Court of Appeal, introduced a new concept in the law of mistake, saying:

On the particular facts of this case and in light of what I have just said I am not convinced that the mistake of the respondent as to the effective date or time of revocation of his license was purely one of law. It was a reasonable mistake based on certain acts of the Registrar and may be but an error of fact or a mix of both fact and law.

[Page 613]

Assuming however that the error of the respondent as to revocation was one of law I am prepared to say that the facts as found by the trial judge give rise to a defence of justification based upon reliance by the respondent on a previous course of conduct on the part of the Registrar. This defence might be classified as officially induced error or perhaps as a form of colour of right.

It is not difficult to envisage a situation in which an offence could be committed under mistake of law arising because of, and therefore induced by, “officially induced error’, and if there was evidence in the present case to support such a situation existing it might well be an appropriate vehicle for applying the reasoning adopted by Mr. Justice Macdonald. In the present case, however, there is no evidence that the accused was misled by an error on the part of the Registrar. The only reference which I have been able to find in the testimony of the accused which could even suggest such a thing is the following passage from his cross‑examination:

Q. But in any event sir, you did receive a notification of revocation of license on the 10th of April 1979?

A. 10th of April…

Q. Well, at least it was dated the 10th of April?

A. Yes.

Q. At that point you knew for sure that your license was revoked?

A. No, not exactly, on this particular, the 10th of April, yes that the license had been revoked at that particular time, over that particular charge.

Q. So at that particular time you knew that it was revoked?

A. Yes, on advice of the Motor Vehicle Department.

Q. Yes, that is basically what I am asking you, you then filed a notice of appeal in the matter, did you not?

A. Yes I did.

Q. You appealled [sic] the decision, did you not?

A. Yes.

Q. Subsequent to filing the notice of appeal, you received a notice of reinstatement from the Registrar of Motor Vehicles?

A. I did.

[Page 614]

Q. That was given subject to the outcome of the appeal case?

A. Pending, restored pending outcome of appeal.

And earlier Mr. MacDougall had given the following evidence:

Q. Having received notice of the appeal having been lost, Mr. MacDougall, did it at all appear to you that maybe your license would be under suspension?

A. Well as I understood it, there would be a notice of license suspension coming to me at sometime, yes.

Q. Did you realize that you may be under suspension at that very moment?

A. Not at that particular time, no.

Q. You were waiting then the notification from the Registrar of Motor Vehicles?

A. Well, as in the past, notification had been received from Motor Vehicles, with regards to the previous accident, so I was under the assumption that until such time as that notice would be received, I was still able to drive a car.

It would be difficult to conceive of more clear or imperative language than that contained in s. 250(3) of the Motor Vehicle Act whereby the driver’s licence shall be automatically “revoked and shall remain revoked” if an appeal is “dismissed”. The failure to appreciate the legal duty imposed by that law is of no solace to the appellant.

Before concluding, I should make mention of R. v. Prue, R. v. Baril, 1979 CanLII 227 (SCC), [1979] 2 S.C.R. 547, in which the majority of the Court held that, for the purposes of the Criminal Code, whether there has been an effective suspension is simply a question of fact. The case arose under s. 238(3) of the Criminal Code and the majority decision, delivered by the Chief Justice at p. 552, makes it clear that a distinction may be drawn between enforcement of a driving offence under the Criminal Code and one for the enforcement of a provincial enactment.

In my opinion, the issue of ignorance of fact or ignorance of law is properly applicable to the enforcement of the provincial enactment under which the suspension

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from driving is made and not to the enforcement of s. 238(3) of the Criminal Code.

I am of the opinion that nothing in the foregoing reasons runs counter to the decision of the Court in Prue and Baril.

For all these reasons I would allow this appeal and order a new trial.

Appeal allowed.

Solicitors for the appellant: Kenneth W. Fiske and Dana W. Giovannetti, Department of Attorney General, Halifax.

Solicitors for the respondent: Doucet, Kelly, Evans & MacIsaac, Port Hawkesbury.