ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 138/12
DATE: 20131211

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

PAUL WITHWORTH

Respondent

Lori Hamilton, for the Crown
Michael Doyle for the Respondent

HEARD: July 12, 2013

TROTTER J.

INTRODUCTION

1This case is about the requisite fault requirements for the offence of failing to comply with a recognizance (FTC), contrary to s. 145(3) of the Criminal Code. It arises from a situation in which Mr. Withworth was subject to a bail condition that prohibited him from driving. He was also subject to a provincial licence suspension. Once the suspension expired, Mr. Withworth believed he was allowed to drive again.

2After a trial before the Honourable Justice B. Frazer of the Ontario Court of Justice, Mr. Withworth was found not guilty of FTC. The Crown appeals, alleging that the learned trial judge erred by improperly giving effect to a mistake of law on Mr. Withworth’s part.

3For the following reasons, the appeal is dismissed

THE FACTS

4Mr. Withworth was charged with impaired driving on January 19, 2012. At the time of his arrest, he was served with notice of a 90-day Administrative Driver’s Licence Suspension (ADLS) pursuant to s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

5The next day, Mr. Withworth was released on a recognizance. For the purposes of this appeal, the key condition in the recognizance was that he: “Not to be in the driver [sic] seat of a motor vehicle or be in care or control of a motor vehicle.”

6On May 11, 2012, Mr. Withworth was driving a car and was pulled over by the police. He produced a temporary driver’s licence that was effective as of May 1, 2012. Mr. Withworth was charged with FTC, based on the condition reproduced in the preceding paragraph.

7Mr. Withworth testified and acknowledged entering into the recognizance. However, he said that he never read the document, even though it would have taken less than a minute to do so. As he said in his examination-in-chief: “Really didn’t know about that directly. I forgot everything about everything….I forgot about everything about that.” Mr. Withworth also testified that, after his 90 day suspension was over, he obtained a temporary driver’s licence from the Ministry of Transportation. He then bought a car and insured it. He said that he needed the car to get to his construction job north of the city. Mr. Withworth testified that he thought that, once his ADLS expired, he was entitled to drive again.

THE DECISION AT TRIAL

8At trial, Mr. Doyle on behalf of Mr. Withworth argued that his client ought not to be convicted because he honestly forgot about the condition that prohibited him from driving. As he submitted, “this was an innocent mistake, a careless mistake, but nevertheless an innocent mistake.” Relying on the decision of the Court of Appeal in R. v. Smith, 2008 ONCA 101, Mr. Doyle submitted that his client’s carelessness did not rise to the level of wilful blindness.

9The Crown at trial (not Ms. Hamilton) argued that Mr. Withworth’s mistake about the interaction of the 90-day suspension with his recognizance amounted to an error of law, thereby depriving him of a defence to the charge. The Crown also argued that Mr. Withworth’s asserted forgetfulness disclosed a state of recklessness that supplied the requisite fault requirement for s. 145(3) of the Criminal Code.

10The trial judge found that the Crown had failed to establish the fault requirements for the offence of FTC. His reasoning is reflected in the following paragraphs from his reasons (which I have placed letters beside for ease of reference later is these reasons):

A. The accused testified on his own behalf and, frankly, some of the things that Mr. Withworth said commend themselves to the court and, frankly, I found Mr. Withworth to be relatively unsophisticated, a believable witness, to the extent that it creates a doubt in the court’s mind with respect to his intention, or the mens rea, as the law regards it, his intention to breach his recognizance.

B. There is, in my view, a feature of this case that distinguishes it from many other recognizance cases. Standing alone, in my view, his explanation would not have afforded him a defence, but for, in the court’s view, the intervening feature of the issuance of a temporary driver’s licence. That, in my view, is a factor which, in the mind of the accused, permitted him to drive.

C. The relationship between the administrative driver’s licence suspension system and a recognizance of bail, in my view, was not clear in the mind of the accused as to which document, if any, took precedence. He also said at some point he simply forgot about the terms of the recognizance, but on his evidence, did not drive within the period of the 90 day suspension, the administrative suspension.

D. The understanding of the relationship between restrictions on liberty through court orders, and restrictions on the privilege of operating a motor vehicle by virtue of the provisions of the Highway Traffic Act dealing with licencing, require a clear understanding of the constitutional differences between the two legislative bodies and the powers imposed upon those federal and provincial bodies respectively.

E. In my view, having been given a temporary driver’s licence….the court is in doubt as to whether or not this man intentionally breached his recognizance of bail and the court is left in doubt about that. [emphasis added]

11The trial judge also referred to Mr. Withworth’s evidence that he would not have put his surety (his wife) at risk of forfeiting the $1,000 recognizance by driving when he should not be. The trial judge said:

F. In my view, that statement, and the manner in which it was delivered in response to that line of questioning, has a ring of truth to it, which again leaves the court in some doubt as to his intention, or the mens rea necessary to commit this offence.

ANALYSIS

12The law is clear that s. 145(3) of the Criminal Code creates a full mens rea offence. As Laskin J.A. held in R. v. Legere (1995), 1995 1551 (ON CA), 95 C.C.C. (3d) 555 (Ont. C.A.), at p. 565:

…the offence of failing to comply with a condition of a recognizance is a true criminal offence requiring proof of mens rea and that carelessness or failure to take the precautions that a reasonable person would take will not support a conviction…

This fault requirement is not restricted to the proof of an intention to fail to comply with a recognizance; wilful blindness and recklessness will also suffice: see R. v. Custance (2005), 2005 MBCA 23, 194 C.C.C. (3d) 225 (Man. C.A.), at p. 229, R. v. Legere, supra, at p. 566 and R. v. Smith, supra, at para. 4.

13Due to the fact that s. 145(3) requires proof of subjective fault, an accused person who raises a reasonable doubt about an honest but mistaken belief of fact cannot be found liable. This sometimes gives rise to claims of forgotten court dates and misunderstood bail conditions. Depending on the circumstances, even a careless mistake may be tenable, as long as it falls short of the “deliberate” ignorance required to establish liability based on wilful blindness: see R. v. Weishar (2003), 2003 64247 (ON SC), 13 C.R. (6th) 59 (Ont. S.C.J.), at pp. 67-70.

14This state of affairs (i.e., that claims of mere forgetfulness, perhaps based on carelessness, might result in an acquittal) stirs anxiety in some people. This leads to in terrorem arguments, complete with warnings that our bail system, as we know it, will collapse if courts were to indulge such doubtful claims. The Crown at trial made this submission. However, as Germain J. held in R. v. Loutitt (2011), 2011 ABQB 545, 284 C.C.C. (3d) 518 (Alta. Q.B.), at p. 525: “The sky will not fall if the Crown has to prove a mental element….[F]ailing to appear in court has serious legal consequences.” Judges will no doubt act sensibly in assessing the authenticity of claims of forgotten court dates and overlooked bail conditions. Effect need not be given to forgetfulness merely because it has been asserted. As the court in Loutitt, supra, held, except in rare cases, the requisite intent under s. 145(3) will be easily inferred from the surrounding circumstances.

15The ambit of cognizable mistakes under s. 145(3) is not limitless. While factual mistakes are tenable, legal mistakes are not. This is reflected in s. 19 of the Criminal Code:

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

Section 19 is a codification of the common law rule: see Don Stuart, Canadian Criminal Law – A Treatise, 6th ed. (Toronto: Carswell, 2011), at pp. 354-355. As Lamer C.J.C. said in R. v. Forster (1992), 1992 118 (SCC), 70 C.C.C. (3d) 59 (S.C.C.), at p. 65:

It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused: Molis v. The Queen, 1980 8 (SCC), [1980] 2 S.C.R. 356. This Court recently reaffirmed in R. v. Docherty, 1989 45 (SCC), [1989] 2 S.C.R. 941, at p. 960, the principle that knowledge that one's actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence.

This principle has been applied to s. 145(3) to deny claims of honest mistakes that are legal in nature: see R. v. Custance, supra.

16Mr. Withworth’s position at trial straddled and, at times criss-crossed, the line between mistakes of fact and mistakes of law. On the one hand, he claimed to have forgotten about the non-driving condition in his recognizance. This slip was capable of being a mistake of fact. On the other hand, Mr. Withworth testified that he believed he was permitted to drive because his 90-day suspension had expired and he had been issued a temporary driver’s licence by the Ministry of Transportation. This amounted to an assertion of a mistake of law.

17I have some difficulty identifying the precise basis upon which the learned trial judge found Mr. Withworth not guilty. With respect, his reasons also test the border between mistakes of fact and mistakes of law. In some portions of his judgment, the trial judge appears to rely on a mistake of law (see paragraphs B. and D.). In others, he relies on a mistake of fact. For instance, in paragraph A., the trial judge appears to have accepted Mr. Withworth’s testimony that he simply forgot about the condition that prohibited him from driving. Some further, albeit slim, support for this conclusion is found in paragraphs C. and F. While I consider Mr. Withworth’s lapsed memory claim to be dubious, it was open to the trial judge to entertain a reasonable doubt on this issue.

18I am also concerned about the narrow manner in which the trial judge referred to the mens rea under s. 145(3). He did not advert to the doctrines of recklessness or wilful blindness. However, just moments before delivering his oral reasons, these concepts were discussed during argument and the trial judge was undoubtedly familiar with them. Ultimately, this aspect of the trial judge’s decision turned on an assessment of credibility. Being unable to detect any palpable and overriding error in his treatment of this issue, I am not prepared to set aside the acquittal: see Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.).

19I consider this appeal to be a close call. As I have already noted, there is language in the trial judge’s reasons that suggests he considered Mr. Withworth’s claim that he believed he was entitled to drive because his ADLS had expired. This legal misunderstanding provides no defence to a charge of FTC under s. 145(3). The existence of a driving suspension, whether administrative or punitive, based on legislation that is federal or provincial, operates independently of a non-driving bail condition imposed under s. 515(4)(f) of the Criminal Code. The expiration of a suspension is irrelevant to the validity and enforceability of this type of bail condition. An accused who believes otherwise is mistaken as to the law.

CONCLUSION

20As there was some basis on the evidence for the trial judge to acquit Mr. Withworth because of a mistake of fact, the appeal is dismissed.

TROTTER J.

Released: December 11, 2013

COURT FILE NO.: 138/12
DATE: 20131211

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Appellant

– and –

PAUL WITHWORTH

Respondent

REASONS FOR JUDGMENT

TROTTER J.

Released: December 11, 2013