Court File and Parties

Citation: R. v. Mokhtarzada, 2017 ONSC 7037 Court File No.: CR-16-10000117-00AP Date: 2017-11-24 Superior Court of Justice - Ontario

Re: R. v. Yama Mokhtarzada

Before: Justice S. Nakatsuru

Counsel: A. Paas, Counsel for the Appellant Mokhtarzada M. MacDonald, Counsel for the Respondent

Heard: November 15, 2017

Endorsement

[1] Mr. Mokhtarzada appeals his conviction for drive while disqualified. He was acquitted of refusing to provide a breath sample. He raises a number of grounds of appeal.

[2] At his trial, Mr. Mokhtarzada testified that he did not know his driver’s licence was under suspension. The trial judge did not believe him and found his evidence did not raise a reasonable doubt.

[3] A number of grounds of appeal relate to how the trial judge dealt with the credibility of Mr. Mokhtarzada. In brief, they relate to an alleged premature assessment of credibility by the trial judge, mischaracterization of the appellant’s testimony, reversing of the onus on him, and taking improper judicial notice of what happens at a Service Ontario outlet. In my opinion, while the trial was not unblemished and some comments made by the trial judge were probably best left unsaid, I find the alleged deficiencies did not render the trial unfair, raise a reasonable apprehension of bias, or cause a substantial wrong or miscarriage of justice.

[4] However, there is merit to the second ground of appeal. This is about how the trial judge dealt with the proof of the mens rea for the offence of drive while disqualified.

[5] How Mr. Mokhtarzada was arrested is not that unusual. He was stopped by a police officer on July 16, 2015, and was found to have been disqualified from driving. That said, the factual circumstances surrounding the disqualification are a little unusual. Mr. Mokhtarzada was actually subject to two suspensions of his driver’s licence. The material one was that he had been suspended beginning on February 28, 2012, for failing to do remedial measures in relation to a conviction from February 28, 2011, for refusing to provide a breath sample when a one year prohibition was imposed. The suspension that he was alleged to have breached flowed from s. 259(5)(b) of the Criminal Code and the provincial law dealing with remedial requirements after such a conviction and prohibition order. The other independent suspension under provincial law was for unpaid fines that commenced July 28, 2009. Mr. Mokhtarzada had testified that he had moved from the Ajax, Ontario address where the notice of suspension was mailed on February 21, 2012, because that house was for sale.

[6] Mr. Mokhtarzada testified that he did not know he was suspended and believed he had a driver’s licence. He testified that at the time of the stop the licence was at home. As noted above, the trial judge did not believe him and found that his evidence did not raise a reasonable doubt; a credibility finding that must be afforded deference.

[7] However, with respect, the trial judge fell into error in expressing his reasons for finding that the Crown had proven the mens rea for this offence. The sole basis for his finding was the trial judge’s acceptance of a statement given by the appellant to the police officer when he was stopped. The appellant told the officer that he knew he was suspended but did not know what for. The judge had ruled that statement voluntary after a voir dire. In convicting Mr. Mokhtarzada, the trial judge held “I do not believe that the accused was unaware that his licence was suspended, because I find that he told the officer, upon being stopped, that his licence was suspended, and that certainly establishes the mens rea.”

[8] In the context of the evidence at this trial, this statement was not particularly probative of proving the mens rea. This is because given that he faced two suspensions, of which one was not relevant to the charge the appellant faced, this statement, while an admission regarding his knowledge of the existence of a suspension, could not in these circumstances significantly advance proof of the intention required for the offence of drive while disqualified. It certainly could not be determinative in the manner the trial judge concluded.

[9] The respondent has conceded as much on the appeal. However, it is submitted that proof of the mens rea did not only depend upon this statement to the officer. The respondent advances two arguments. The first is reliance upon the presumption of regularity of the original prohibition order made at trial. Section 260(1) of the Criminal Code requires the court to ensure the offender be properly informed about the prohibition order. Once the Crown has proven the actus reus of the driving, the fact of the prohibition order, and the court applies the presumption of regularity, the Crown has established prima facie the essential elements of the offence. If the defence presents an explanation which casts a reasonable doubt about his knowledge of the suspension, then he would be entitled to an acquittal: see R. v. Lock, [1974] O.J. No. 1938 (C.A.) at para. 28.

[10] I have two difficulties in accepting this as a complete answer in this case. First of all, I am not sure the presumption of regularity can apply in this situation. Here the appellant is not alleged to have breached the original one year driving prohibition order made by the court. Rather, it is a breach of the suspension made under the Highway Traffic Act that related to his original conviction but was for failure to follow the remedial program required under the provincial law. The presumption may apply to the original proceedings, but it is an open question whether the same could be said about a suspension that is made out-of-court under the provincial statute. The presumption of regularity must be applied cautiously in the criminal law context: see R. v. Molina, 2008 ONCA 212 at para. 13.

[11] In any event, the trial judge in this case did not apply the presumption. Neither party referred to the presumption in submissions. On the evidence in this case, while the rejected testimony of the appellant did not raise a reasonable doubt, the statement given to the officer that Mr. Mokhtarzada knew he was suspended but did not know why, a statement accepted by the trial judge, was capable of rebutting the presumption of regularity even if such a presumption could apply to a situation like this. The trial judge did not analyze this question or give any reasons why the statement did not raise a reasonable doubt in his mind. Given this, in my view, the conviction cannot be sustained on this basis.

[12] Alternatively, the respondent argues the deemed knowledge provision of s. 260(4) of the Criminal Code applies in this case. That section deems the appellant to have knowledge of his disqualification and its duration in the absence of evidence to the contrary if notice of the disqualification was mailed to him by registered or certified mail. This includes disqualification made under the law of a province in respect of a conviction for refusing to provide a breath sample.

[13] In my opinion, this too is no answer. First of all, the section also permits the appellant to resist conviction if he establishes evidence to the contrary. I agree with the respondent that Mr. Mokhtarzada’s rejected evidence cannot be evidence to the contrary: see R. v. Boucher, 2005 SCC 72, [2005] S.C.J. No. 73 at para. 28. However, again, the appellant’s statement to the police officer was capable of being evidence to the contrary. And again, the parties and the trial judge did not deal with this question. Even further, based on the evidence that was introduced at trial, the respondent’s position is not sustainable. The certification by the Registrar of Motor Vehicles of the appellant’s suspension filed as an exhibit, only certifies that a notice of the suspension was “forwarded by mail” to the appellant. There is no certification that this was done by registered or certified mail as required by the section. Even more fundamental, this certificate which was a certificate of suspension admissible as evidence pursuant to s. 260(5) was evidence of the fact of the suspension but was not admissible to prove that the appellant had been duly notified of the suspension: see Lock at para. 8.

[14] In conclusion, a new trial must be ordered on the charge. One issue raised by the trial judge during submissions but not dealt with was the issue of whether the appellant was wilfully blind to the existence of the relevant suspension. This could potentially be an alternative route to proof of the mens rea. The appellant is ordered to attend on December 8, 2017, at 9 a.m. in courtroom 111, Ontario Court of Justice, 60 Queen St. W., Toronto, to set a new date for a trial.

Justice S. Nakatsuru

Date: November 24, 2017