R. v. Reistad

2009 BCSC 971 R. v. Reistad IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Reistad, 2009 BCSC 971 Date: 20090716 Docket: 23495-2 Registry: Quesnel Between: Regina Crown/Appellant And Steve Ivor Reistad Accused/Respondent Before: The Honourable Mr. Justice Chamberlist On Appeal from the Provincial Court of British Columbia, January 24, 2008 Reasons for Judgment Counsel for Crown/Appellant: V.R. Galbraith Counsel for the Accused/Respondent: No Appearance although duly served Place and Date of Trial/Hearing: Quesnel, B.C. July 7, 2009 Place and Date of Judgment: Quesnel, B.C. July 16, 2009 The respondent, Steve Ivor Reistad, was charged on information number 23495-1 as follows: Count 1 Steve Ivor Reistad, on or about the 17th day of October, 2007, at or near Quesnel, in the province of British Columbia, did drive a motor vehicle on a highway or industrial road, while he was prohibited from driving a motor vehicle under Section 99 of the Motor Vehicle Act, contrary to Section 102 of the Motor Vehicle Act, R.S.B.C. 1996. [1] During the trial of the matter before the learned Provincial Court judge defence counsel admitted the entire Crown case with the only issue in dispute being whether or not Mr. Reistad was prohibited from driving on October 17, 2007. [2] The defence admitted the certified extract of British Columbia driving record of Mr. Reistad ("certified driving record"). Also admitted was the identification of Mr. Reistad as the person referred to in the certified driving record. [3] One of the entries on the certified driving record, under the heading "Prohibitions/Suspensions" reads as follows: From 11 APR 2007 to 11 APR 2008 Cause 12 month automatic prohibition - Sec 99 MVA. [4] The defence also admitted that Mr. Reistad had received a three month driving prohibition under s. 259.4 of the Criminal Code of Canada on April 11, 2007, and admitted that the April 11, 2007 conviction would have triggered a prohibition under s. 99 of the Motor Vehicle Act. [5] Also admitted by the defence was the voluntariness of Mr. Reistad's statements to RCMP Cst. Draper at the time Cst. Draper pulled Mr. Reistad over while driving on October 17, 2007. [6] At trial, the Crown argued that the admissions by the defence and evidence presented by the Crown were sufficient to prove the Crown's case with respect to the s. 102 Motor Vehicle Act charge beyond a reasonable doubt. [7] In addition, the defence argued that in the absence of a certificate from the Superintendent of Motor Vehicles stating that Mr. Reistad was prohibited from driving on October 17, 2007, the Crown had not proved its case. Commencing at p. 10, line 32 of the transcript, the defence argument was as follows: Mr. Zipp: All right. So, having been sentenced to the three months, it would make sense that that would trigger an automatic prohibition, but we don't necessarily know if that in fact occurred. We have nothing from the superintendent to indicate that in fact that was done. All we have is a record of prohibitions and suspensions, but we don't have the actual document, nor do we have anything from the superintendent indicating that in fact that was done to Mr. Reistad's driving record. In other words, I suppose what I'm saying is that the records, as far as that's concerned, may or may not - - may or may not be accurate, as far as the true state of affairs of Mr. Reistad's driving history. And without an actual document from the superintendent saying that in fact the automatic prohibition was in fact registered, it's my submission that that's not proof beyond a reasonable doubt. In addition to that, there is always the possibility that, if the prohibition was imposed, that it may have been suspended for any number of reasons. There have - - there may have been an appeal. There may have been - - in other words, an appeal to Supreme Court with a consequent order permitting driving pending the appeal. There may have been some discussions between the Superintendent of Motor Vehicle's staff and Mr. Reistad, which may have potentially influenced that prohibition. We don't know any of that. Now, that's why these certificates are filed, because the certificates provide positive evidence to indicate that on the date alleged, that in fact the accused person's right to drive was not permitted. And while it's logical to assume that following the guilty plea or disposition on April 8th, that there would be an automatic suspension, it's also equally logical that that prohibition may have been lifted by means of any of those other things I mentioned, and in particular an appeal process, which may not be reflected on this record. And I say that that creates a doubt, such that Your Honour cannot be satisfied beyond a reasonable doubt that on October the 17th, Mr. Reistad was prohibited from driving. He may have thought he was, but the question is, was he in fact? [8] The Crown submission at trial was that a suspension of Mr. Reistad's s. 99 prohibition by the Superintendent of Motor Vehicles was purely speculative and not supported by the evidence. [9] The learned Provincial Court judge acquitted Mr. Reistad with short reasons as set out hereafter: [1] THE COURT: Although the certified extract of British Columbia driving record has two entries which parallel the facts generally understood to be the case here, that is that Mr. Reistad was prohibited by the court on the 11th of April, 2007, to the 11th of July, 2007, and that there is an entry that he was given a 12-month automatic prohibition under s. 99 of the Motor Vehicle Act, which is the usual expectation in such cases, there is not the conventional evidence before the court through the usual certificate of the superintendent or Insurance Corporation of British Columbia setting out all of the particulars which the court requires to be satisfied, before it can be assured that this individual was served notice and knew that he was prohibited from driving under that section on the date in question, that is the 17th of October, 2007. [2] I am concerned also because, as is quite often the case with these kinds of cases, the authorities forwarded incorrect documents which did not relate to this prosecution, which put the Crown in the difficult position she is in before the court today. I mention that because the provisions of the section which set out the way in which a conviction can be proved, are there to be complied with, in my view, absolutely. It allows for shortcuts to be taken on the production of the exact documents showing and confirming the prohibition in question. [3] Therefore, in my view, the prosecution falls short of the necessary burden of proof in this matter and I acquit Mr. Reistad. ANALYSIS [10] It is noteworthy that the learned trial judge referred to s. 99 of the Motor Vehicle Act but not s. 102. [11] For ease of reference, s. 102 provides as follows: 102 A person who drives a motor vehicle on a highway or industrial road while (a) he or she is prohibited from driving a motor vehicle (i) under section 98, 99 or 100 of this Act, (ii) under the Youth Justice Act, or (iii) before April 1, 2004, under the Young Offenders (British Columbia) Act, as it then was or (b) his or her driver's licence or his or her right to apply for or obtain a driver's licence is suspended under section 82 or 92 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, as the section was before its repeal and replacement came into force under the Motor Vehicle Amendment Act, 1982, commits an offence and is liable, (c) on a first conviction, to a fine of not less than $500 and not more than $2 000 or to imprisonment for not more than 6 months, or to both, and (d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 14 days and not more than one year. [12] In reasons for judgment the learned trial judge stated that the court must be satisfied: . . . that this individual was served notice and knew that he was prohibited from driving under that section on the date in question . . . [13] A reading of s. 102 clearly shows that the Crown is not required to prove the accused knew he was prohibited from driving. Neither, from a reading of s. 102, is the Crown required to prove the accused was notified of the driving prohibition to sustain a conviction under s. 102. [14] In R. v. Pontes, [1995] 3 S.C.R. 44, [1995] S.C.J. No. 70, the Supreme Court of Canada was called upon to interpret the precursors to ss. 99 and 102 of the Motor Vehicle Act. At that time, s. 92 was the precursor to s. 99 and s. 94(1) was the precursor to what is now s. 102. In that decision the Supreme Court held that fundamental aspect of the offence created by s. 102 is that a person convicted of the underlying offence (s. 99) is "automatically and without notice" prohibited from driving a motor vehicle. The Court held that the words "automatically" and "without notice" in s. 92 went far towards establishing that the offence under s. 102 is an absolute liability offence. As a result of the wording of the section the Supreme Court of Canada also concluded that the only possible defence an accused could put forward was his ignorance of the fact that his licence has been suspended by the provisions of the provincial statute, which would constitute a mistake of law and would not therefore be available as a defence. The Supreme Court also concluded that because the prohibition on driving in s. 99 is automatic and without notice, s. 102 effectively prevents an accused, who is unaware of the prohibition, from raising that defence. [15] While s. 102 does refer to driving while prohibited under s. 99 of the Motor Vehicle Act, it is important to note that s. 99 refers to a driving prohibition being imposed "automatically and without notice". Section 99 of the Motor Vehicle Act reads as follows: 99 (1) For the purpose of this section, "convicted" includes the granting of an absolute or conditional discharge. (2) A person who is convicted of (a) an offence under section 95, 102, 224 or 226(1), or (b) a motor vehicle related Criminal Code offence is automatically and without notice prohibited from driving a motor vehicle for 12 months from the date of sentencing, the date that the passing of sentence is suspended, the date of being granted an absolute or conditional discharge or the date a court imposes a sentence under the Youth Criminal Justice Act (Canada) or the Youth Justice Act. [16] Although sections 82 and 82.1 of the Motor Vehicle Act allow records of the Insurance Corporation of British Columbia to be admitted in evidence as evidence of the facts stated in the record, it is noteworthy that in neither of these sections, nor in any other section of the Motor Vehicle Act, is a procedure set out as to how a charge under the Motor Vehicle Act must be proved to the satisfaction of the trial court. It is clear from the learned trial judge's decision that, having found that the Motor Vehicle Act prescribes how a charge can be proved, then decided that the Crown did not comply with the provisions of the section, which are only permissive and not mandatory. Thereafter she failed to put her mind to the true issue in the case as to whether the accused committed the offence charged beyond a reasonable doubt when considering all of the evidence before her, including the admissions made and the fact that there are certainly other permissible ways to prove an offence under s. 102 of the Motor Vehicle Act other than the mode identified by the learned trial judge. [17] As a result, having concluded that the learned trial judge erred in law in acquitting the respondent on count 1, I order that the matter be remitted back to Provincial Court and a new trial be held. "E.G. Chamberlist, J." The Honourable Mr. Justice Chamberlist