Court File and Parties

COURT FILE NO.: 18-11 DATE: 20190620 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Derek Summers Defendant

Counsel: Michael Purcell, counsel for the Crown John Hale, counsel for the Defendant

HEARD: April 29th, 2019

Reasons for Judgment

CHAMPAGNE, J.

[1] Derek Summers has a history of driving offences under both the Highway Traffic Act (HTA) and the Criminal Code of Canada (Criminal Code). He brings this appeal in relation to his most recent criminal conviction for driving while disqualified.

[2] On July 14, 2014 Mr. Summers was convicted by Justice McPhee of driving while disqualified and of failing or refusing to provide a breath sample under the Criminal Code. He was sentenced to 90 days jail for driving while disqualified and he was issued a one year prohibition order but because it was Mr. Summers’ fourth Criminal Code offence involving the use of a motor vehicle, the Ministry of Transport suspended his license for life. On that day he signed all of the prohibition orders issued by Justice McPhee acknowledging he read them, received a copy and that the orders were explained to him and understood by him. The final order, acknowledged by Mr. Summers stated the following:

“Please note that in addition to the consequences as a result of your criminal conviction, the Highway Traffic Act (H.T.A.) provides for certain administrative consequences including driver license (D.L.) suspensions, remedial measures programs (R.M.P.), conditions of D.L. reinstatement and fees payable, the Ministry of Transportation (M.T.O.) will notify such drivers of these consequences and requirements by mailing a notice of suspension that will indicate the applicable suspension period, conditions of reinstatement and fees payable to the driver address on file with M.T.O.. The H.T.A. requires drivers to provide M.T.O. up-to-date address information. Failure to do so may delay license reinstatement. If this prohibition order was issued as a result of a conviction under the Criminal Code for an offence committed by means of a motor vehicle, motorized snow vehicle, vessel or a streetcar or while you were driving or had care, charge or control of such vehicles, s. 41 of the H.T.A. provides that your driver’s license is suspended upon conviction for one year for the first conviction, three years for a second conviction, indefinitely for a third conviction with the possibility of reinstatement at 10 years if prescribed conditions are met, indefinitely for a fourth or subsequent conviction with no possibility of reinstatement.”

[3] Mr. Summers failed to advise the M.T.O. that he had not lived at 52 Elm Street, the address on his driver’s license, for over eight years.

[4] Mr. Summers was caught driving on July 11, 2016 and was charged with operating a motor vehicle while disqualified pursuant to s. 259(4) of the Criminal Code and with four offences under the Highway Traffic Act as follows:

1. Driving a motor vehicle without a validated permit contrary to s. 7(1)(a) of the HTA.
2. Failing to apply for a permit contrary to s. 11(2) of the HTA.
3. 2 counts of driving while his license was suspended pursuant to s. 53(1) of the HTA.

[5] In addition, Mr. Summers was charged with driving without insurance pursuant to the Compulsory Automobile Insurance Act (CAIA).

[6] On March 21, 2017 Mr. Summers pleaded guilty in provincial offences court to driving while under suspension under the HTA and to operating a motor vehicle without insurance under the C.A.I.A. The balance of his charges were withdrawn. His license was suspended “for a period prescribed by statute” and he was fined $1000 for driving while suspended and $3,500 for driving without insurance.

[7] At a subsequent criminal trial, on December 1, 2017 Mr Summers was found guilty of driving while disqualified under the Criminal Code by Justice Lahaie and was sentenced on January 19, 2018 to 5 month jail and a 3 year driving prohibition. He appealed his criminal conviction initially arguing that Justice Lahaie was inconsistent in her reasons for judgment and erred by attaching no weight to the documentary record before her. He abandoned those grounds of appeal just before this hearing and is instead arguing that the charge of driving while disqualified should be stayed pursuant to the Kienapple principle.

[8] The Kienapple principle was briefly mentioned by Mr. Summers counsel at his criminal trial but submissions in this regard were never made to the trial court.

Decision

[9] For reasons that follow, Mr. Summers appeal is dismissed.

Analysis

[10] Mr. Summers was caught driving while unauthorized under both the HTA and the Criminal Code on July 11, 2016. He was charged, pleaded guilty and convicted of driving while his driver’s license was suspended under s. 53(1) of the HTA which sets out:

“Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

or to imprisonment for a term of not more than six months, or to both. R.S.O. 1990, c. H.8, s. 53 (1); 1997, c. 12, s. 7 (1).”

[11] He was also charged and convicted after trial of driving while disqualified under s. 259(4) which provides:

“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”

[12] Mr. Summers pleaded guilty to the HTA offence of driving while his license was suspended and he contends that his conviction under the Criminal Code should be stayed in accordance with the Kienapple principle also known as the rule against multiple convictions.

[13] There is no dispute that Mr. Summers was charged under the HTA and under the Criminal Code in relation to the same act of driving on July 16, 2016. The issue is whether there is a sufficient legal and factual nexus to warrant the application of the Kienapple principle to overturn Mr. Summers’ conviction and stay the Criminal Code charge.

The Kienapple Principle

[14] The doctrine of res judicata was articulated by Justice Laskin in R. v. Kienapple [1975] 1 SCR 729 in which he said “In my view, the term res judicata best expresses the theory of precluding multiple convictions for the same delict, although the matter is the basis of two separate offences.” The Supreme Court of Canada revisited the scope of the principle in R.v. Prince [1986] 2 SCR 480. Prince articulates that the Kienapple principle will apply when there is a relationship of sufficient proximity between the facts and between the offences which form the basis of two or more charges. The charges must arise from one single delict. In Prince, at para 44 Chief Justice Dickson said “In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges?” Of the legal nexus he said “I conclude therefore that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle”. Prince also instructs me to consider differences in the gravity of the offences and where gravity is unequal “Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are no distinct additional elements in the lesser offence” (para 33). Further, according to Prince, where there are different elements between the offences but the difference is not a reflection of Parliamentary intent to add extra punishment when both offences can be proven, then that difference will be insufficient to disqualify the application of Kienapple to those subsequent offences (Prince, at para. 37).

The Appellant’s Position

[15] Mr. Summers’ counsel, Mr. Hale argues that res judicata (Kienapple) applies to Mr. Summers’ situation. He argues that the Alberta Provincial Court case of R. v. Cails 2009 ABPC 235 is on all fours with Mr. Summers’ matter. In Cails the accused was charged with driving while disqualified under the Criminal Code and with driving while unauthorized contrary to s. 94(2) of the Traffic Safety Act (T.S.A.). Mr. Hale contends that s. 94(2) of the T.S.A. is similar to s. 53(1) of the HTA He urges me to follow the reasoning of Justice E.A. Johnson who found there was both a factual and legal nexus between the two charges which was sufficient to invoke the application of Kienapple. He argues that the Ontario case of R. v. Douma [2015] O.J. No. 6910 supports his position insofar as Justice Beaman did not reject the reasoning in Cails despite finding sufficient disparities between driving while disqualified and driving without a licence (s.8.32(1) HTA to decline to apply the Kienapple rule. Mr. Hale argues that Douma is not inconsistent with Cails because the facts are not the same. He contends that Mr. Summers’ matter can be distinguished from Douma because Mr. Douma was charged with driving without a licence which attracts a minimal fine. Mr. Summers was charged with the more serious offence of driving while suspended which attracts significant fines between $1,000.00 and $5,000.00, as well as possible jail time. He argues that the gravamen of the offence of driving while suspended is proximate to the offence of driving while disqualified.

The Crown’s Position

[16] Counsel for the Crown, Mr. Purcell, contends that I should following the detailed reasoning in Douma to reject Mr. Summers’ appeal. He argues that the HTA and Criminal Code offences, while arising out of the same set of facts, have dissimilar delicts and contain sufficient disparities to warrant a rejection of the application of Kienapple.

[17] Mr. Hale and Mr. Purcell both argue that Douma supports their respective positions in relation to the application of the Kienapple principle.

[18] While Douma involved the Criminal Code charge of driving while disqualified and HTA charges of driving without a license rather than driving while suspended (as in Mr Summers’ case), in my opinion, it correctly outlines the principles to be applied in considering whether the factual and legal nexus of each charge are sufficiently similar to trigger the application of the Kienapple principle.

[19] I agree with Mr. Hale that Cails appears to be on all fours with Mr. Summers’ case. I also agree that Douma is factually different from the case before me. Unlike driving without a license which triggers a relatively low fine, driving while suspended under the HTA triggers fines up to $5,000.00 and a possible jail sentence of 6 months. That being said, I believe the reasoning in Cails is wrong and I am not bound by it. Like Beaman J. in Douma I find that there are a number of significant disparities between the elements and legal consequences of each charge so as to disqualify the application of Kienapple:

1. While the act of driving while unauthorized to do so is the foundation of each charge, the HTA offence is a strict liability offence only requiring proof of actus reus while the Criminal Code offence has a mens rea component and the crown bears the heavy burden of proof beyond a reasonable doubt.
2. The requirement that disqualification leading to a license revocation must arise out of a previous Criminal Code offence is not necessary under the HTA. The HTA offence can be prompted by a number of administrative and regulatory breaches including relatively minor breaches like unpaid fines.
3. There is also a significant difference in the penalties between the two. The consequences of driving while disqualified under the Criminal Code triggers the possibility of a jail sentence of up to 5 years.
4. The violation under the HTA is a violation of an administrative suspension while the violation of the Code offence involves violating a prohibition imposed by the court. The gravamen of each offence is simply not the same. The Criminal Code offence marks criminal conduct and is meant to deter criminal driving behavior such as impaired driving and to demonstrate to the public that the state takes criminal driving offences seriously. The HTA offence is much less serious and may not be the result of bad driving. It is meant to ensure that administrative and regulatory requirements are adhered to.
5. The HTA offence pertains to driving on a highway while the Criminal Code offence is not limited to driving on a highway.

[20] In my opinion, the differences between the two charges give rise to different delicts out of the same set of facts and applying the Kienapple principle in these circumstances would be inappropriate. To do so would frustrate the intent of parliament to discourage criminal driving behavior and to demonstrate to society that these offences are taken seriously. It would encourage drivers facing both criminal and provincial offence charges to avoid conviction and a more serious sentence on the Criminal Code charges by pleading guilty to the HTA charge. In my view this would not only contravene the Kienapple principle which would bar conviction on the lesser charge, it would also bring the administration of justice into disrepute.

[21] For these reasons, Mr. Summers appeal is dismissed.

The Honourable Justice Nathalie Champagne

Released: June 20, 2019

COURT FILE NO.: 18-11 DATE: 20190620 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Derek Summers REASONS FOR JUDGMENT The Honourable Justice Nathalie Champagne

Released: June 20, 2019