Her Majesty the Queen v. Michael Fernandes, 2012 ONSC 427
CITATION: HMTQ v. Fernandes, 2012 ONSC 427
COURT FILE NO.: 7193
DATE: 2012-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent
– and –
Michael Fernandes Appellant
COUNSEL: K. Katzsch, for the Respondent C. Parry, for the Appellant
HEARD: January 6, 2012
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] Michael Fernandes was charged with driving while disqualified on January 11, 2010, contrary to section 259(4), Criminal Code. He pleaded not guilty and a trial was held in the Ontario Court of Justice on July 28, 2010. The evidence was presented by way of an agreed statement of facts. On November 25, 2010, the trial judge delivered her decision, finding Mr. Fernandes guilty of the offence as charged. A sentence was imposed on February 1, 2011, of 172 days in custody along with a three year driving prohibition.
[2] Mr. Fernandes appeals his conviction. On February 9, 2011, an order was granted by Hambly J. directing Mr. Fernandes be released from custody, on terms, pending the decision on this appeal.
Background
[3] On January 11, 2010, Mr. Fernandes was operating a motor vehicle. He was stopped by the police. At the time, Mr. Fernandes was subject to court ordered lifetime driving prohibition, granted October 11, 2005, following convictions for impaired driving, dangerous driving and driving while disqualified. He was also restricted from driving by virtue of several notices from the Ministry of Transportation, pursuant to the Highway Traffic Act, including a lifetime driving suspension imposed on February 26, 2003. The Ministry suspensions arose from Criminal Code driving convictions. Mr. Fernandes has a lengthy record for such convictions.
[4] At trial, Crown counsel conceded the court ordered prohibition from October 11, 2005, was fatally flawed. The document did not contain the wording as required by section 260(1) and compliance could not be otherwise proven. This determination by counsel complied with the ruling in R. v. Molina (2008), 2008 ONCA 212, 231 C.C.C. (3d) 193 (Ont.C.A.).
[5] Crown counsel proceeded with the charge on the basis of the Ministry suspension. Mr. Fernandes acknowledging receiving the appropriate notices, the contents of which are not challenged.
[6] The trial proceeded with detailed submissions from counsel. Their positions were the same as on appeal, as hereafter discussed.
Issue
[7] Appellant’s counsel identifies the issue in the following manner:
Is compliance with section 260(l) of the Criminal Code a condition precedent to a conviction under section 259(4) of the Code in circumstances where the Crown seeks to prove the disqualification by proving the existence of a Highway Traffic Act suspension that flowed from a criminal conviction that also resulted in the imposition of a prohibition order.
[8] The relevant provisions in the Criminal Code are as follows:
- …
(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
(5) For the purposes of this section, “disqualification” means
(a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or
(b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed
(i) in the case of a motor vehicle, under the law of a province, or
(ii) in the case of a vessel or an aircraft, under an Act of Parliament,
in respect of a conviction or discharge under section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4).
- (1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause
(a) the order to be read by or to the offender;
(b) a copy of the order to be given to the offender; and
(c) the offender to be informed of subsection 259(4).
(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259 (5) (b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration.
(5) In proceedings under section 259, a certificate setting out with reasonable particularity that a person that a person is disqualified from
(a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, or
(b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister of Transport for that purpose
is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.
Positions
[9] The positions of the parties differ as to the interpretation of the aforementioned sections in the Criminal Code. These positions were well articulated in counsels’ factums and submissions. The following is a brief summary.
[10] Mr. Parry argues that section 260(1) must apply to both methods of disqualification; that is, the offender must be fully informed of the penal consequences under section 259(4). He submits the offence section is only 259(4), not 259(5), and, therefore, the ruling in Molina applies as the only logical and rational way to interpret section 260. Otherwise, Mr. Parry says, a loophole is created to allow circumvention of Parliament’s intent that offenders be fully informed of the specific penal consequences of driving while disqualified.
[11] Ms. Katzsch submits that the provisions of section 260(1) do not apply when the Crown has proven disqualification as defined in section 259(5)(b), that is by Ministry suspension. The section 260(1) requirements, she argues, only apply to court ordered prohibition, as defined in section 259(5)(a). Ms. Katzsch goes on to say that Parliament has distinguished between the two types of disqualification and that Molina does not apply to the facts in this case.
Decision of Trial Judge
[12] The trial judge agreed, for the most part, with the position taken by Crown counsel. Her decision, at pp. 11-14 of the transcript, was as follows:
It is important to remember, in my view, that what section 260 (1) speaks to is the procedure to be followed upon issuing an order of prohibition pursuant to section 259. Failure to follow through with this procedure does not vitiate the conviction pursuant to section 253 in this case. The conviction stands but the order of prohibition cannot be enforced under section 259 (5) (a). The Highway Traffic Act sets out a completely different regime for suspending the license of a subject. This includes section 41 (1) (b.1) which applies in this case. The lifetime suspension that was imposed arose because the accused had been convicted of section 253 or section 255 offences.
I would note that because of the way the consecutive offences are determined under the Highway Traffic Act, it would appear that this lifetime suspension could occur much earlier than any comparable period of prohibition under the Criminal Code. The suspension arises because of the conviction of the accused for certain offences under the Criminal Code and this conviction stands irrespective of what may have occurred with respect to the prohibition.
Section 259 (5) (b) makes it clear that there are two different ways of proving that a driver is disqualified and, on its face, the Crown would appear to have made its case out under subsection (5) (b). The statute requires only the conviction for the offence and the Criminal Code section 255 (5) (b) does not refer to the convictions and prohibitions but to the conviction or discharge on these specified offences. Section 259 (5) (b) now makes it impossible to make a Provincial suspension enforceable under section 258 (4) except where the predicate offences originate in the Criminal Code. If it were intended that this would require that there also be a notice under this section to make a suspension under Provincial Legislation qualify as a disqualification, then this could easily enough have been made part of the legislation but it was not.
I am not persuaded that the Molina case, in paragraph two, which says that compliance with section 260 (1) is a precondition to a conviction for driving while disqualified under section 259 (4) can be taken to extend to a factual situation outside of the one that the court was dealing with in the Molina case, i.e., the section 259 (5) (a) situation. This is not completely analogous to the cases regarding probation. There, it is a breach of the probation order itself that triggers the breach charge and there is no alternative set out in the legislation or elsewhere to arrive at the finding.
In this case, the legislation sets out in section 259 (5) two separate routes to proving this qualification. One of them is clearly contingent on the Crown’s proving compliance with section 260 (1). The other is, in my view, not necessarily contingent on the Crown’s proving compliance with section 260 (1). If it were contingent on compliance with section 260 (1) then it would seem that section 259 (5) (b) would be unnecessary since it would merely duplicate section 259 (5) (a) in the case where section 5 (b) is contingent on proof that the reason for the suspension is based on a Criminal Code conviction under Criminal Code sections.
While I might be inclined to look at what the intent of the legislation was, were there ambiguity in the language, in my view there is no ambiguity in the language. I am not inclined to attempt to deduce what the intent was in the Molina case before the Court of Appeal. The case relates to a particular factual situation and does not advert in any way to the possibility of proof via the Provincial legislation. The Court of Appeal should be given the opportunity of making their intent clear rather than having this court attempt to infer it.
Law
[13] Counsel advise that the issue herein has not been addressed in prior cases.
[14] Molina involved a court ordered prohibition. The defendants were acquitted at trial. The Crown’s appeals were dismissed. Blair J.A. at paragraphs 2, 3, 7, 8 and 9 said:
2 Compliance with s. 260(1) of the Code – which requires the court to ensure that an offender who is disqualified from driving is informed of the provisions of s. 259(4) – is a pre-condition to a conviction for driving while disqualified under s. 259(4). The appellants were each provided with a prohibition order that was prepared using a standard, pre-printed form. They each signed the form, acknowledging an understanding of its terms. The courts below concluded that the forms were deficient, however, in that they did not specifically alert the offenders to the full penal provisions contained in s. 259(4). They also held that the “presumption of regularity” did not operate to cure these deficiencies in the circumstances.
3 I agree, and would dismiss the Crown’s appeals essentially for the reasons given by Justice Glithero on the summary conviction appeal below. I add the following brief comments.
7 Instead, the prohibition order provided to, and signed by, Mr. Molina simply warned that everyone who operated a motor vehicle, etc. while disqualified is “upon conviction, guilty of an offence and is liable to a term of custody and supervision.” Mr. Pejic’s prohibition order was drafted in the same language. In the case of Mr. Bell, the comparable warning was that upon conviction for operating a vehicle while disqualified the offender “is liable to a term of imprisonment.” None of these warnings brought home to the appellants the specifics of s. 259(4), namely that they could be found guilty of an indictable offence and imprisoned for up to five years or found guilty of an offence punishable on summary conviction.
8 At Mr. Molina’s sentencing, the trial judge advised Mr. Molina that “you have to realize that every time you breach court orders, you are going to end up in jail. It is as simple as that.” On the record, that is the closest any of the trial judges came to conveying verbally the warning mandated by s. 260(1)(c). There is no evidence of any comparable admonition by the trial judges in the cases of Mr. Bell or Mr. Pejic.
9 In the Ontario Court of Justice, the trial judges all held that the foregoing circumstances were insufficient to ground a conviction for driving while disqualified; the Crown had failed to prove an essential element of the offence, namely, that the appellants had been “informed of subsection 259(4)”, as required by s. 260(1)(c). The summary conviction appeal judge arrived at the same conclusion. I agree.
Analysis
[15] At the outset, it is my view there is no ambiguity in the statutory provisions. Hence, the secondary position of the appellant need not be addressed.
[16] I agree with Mr. Parry as to section 259(4) being the only offence provision for “driving while disqualified”. I do not accept his argument that the trial judge relied on section 259(5) as the offence section. Rather, section 259(5) merely allows the disqualification to be proved in one of two ways, a court ordered prohibition or a provincially imposed suspension. In this respect, I am in agreement with the analysis of the trial judge.
[17] Section 260(1) refers only to the requirements pertaining to a court ordered prohibition. It does not speak to a provincial suspension.
[18] I have some difficulty in understanding why Parliament felt it necessary for an offender to be fully informed of the consequences in section 259(4) regarding a court order but not with a provincial suspension. Nevertheless, the statutory provisions are clear and unambiguous. If this was not Parliament’s intent then it is their role, not mine, to amend the statute.
[19] There is no complaint as to the notice of the provincial suspension. Mr. Fernandes acknowledging receiving that document. Section 260(4) and (5) are, thus, the operative provisions.
[20] Accordingly, the appeal is dismissed.
[21] Pursuant to the agreement of counsel, I direct Mr. Fernandes to surrender into custody within 14 days of the release of this decision.
D.J. Gordon J.
Released: January 17, 2012
CITATION: HMTQ v. Fernandes, 2012 ONSC 427
COURT FILE NO.: 7193
DATE: 2012-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen Respondent
– and –
Michael Fernandes Applicant
REASONS FOR DECISION
D.J. Gordon J.
Released: January 17, 2012
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