TICKET NO. 32413443 2007 SKPC 41 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON Between: HER MAJESTY THE QUEEN AND BUYAKI (J.C.) Cory Bliss for the Crown Tyla Olenchuk for the Accused P.S. Kolenick, PCJ JUDGMENT June 22, 2007 [1] The accused is charged that he did, on or about February 17, 2006, at Saskatoon, drive while disqualified, contrary to s. 89(1) of The Highway Traffic Act, as it was then. The alleged driving occurred when the accused was involved in motor vehicle accident and engaged in other alleged misconduct, including driving without due care and consideration for others, and failing to identify himself to the other driver before departing from the scene. [2] Mr. Buyaki is 25 years of age. It is apparent from the Driver History, which has been filed by the Crown, that his S.G.I. driving record since the year 2000 includes numerous entries for motor vehicle accidents, summary offence tickets, and other administrative actions by S.G.I., which have, on occasion, resulted in the disqualification of his driving privileges for varying lengths of time. [3] Further in that regard, the Crown filed letter dated July 11, 2005 from S.G.I. to the accused. In it, he was advised of his eligibility for provisional license, effective July 11, 2005, because he had successfully completed the Driving Without Impairment course. That letter included the following paragraph: Please note that restricted or provisional drivers who drive after consuming any amount of alcohol will have the original driver’s license suspension period reinstated and will be required to attend an addictions screening and prescribed program. [4] Also included in the evidence for the Crown herein is Certificate of Disqualification or Prohibition, signed on behalf of the Administrator under The Vehicle Administration Act (since repealed). It confirmed that, on December 18, 2005, the accused had been disqualified from holding or securing license, continuously, to and including the date of the Certificate, namely August 15, 2006. That had arisen for failing to participate in program prescribed by the Driver Licensing and Regulations. EVIDENCE FOR THE DEFENCE The Accused [5] The accused indicated that the motor vehicle accident in issue had occurred on February 17, 2006, at time when it was his belief that he had valid provisional driver’s license. In that regard, he had earlier participated in the Driving Without Impairment program and Addiction Screening, which S.G.I. had required as condition thereof. Pursuant to the prior mentioned letter dated July 11, 2005, from S.G.I., he had proceeded shortly after receiving it to obtain the said provisional license. [6] The accused testified further that, on December 18, 2005, while driving near Carrot River, Saskatchewan, he was stopped by member of the RCMP and issued 24 hour driving suspension. At the time, he advised the officer of his provisional license, and learned that the suspension would be for 24 hours only and otherwise, he could drive thereafter unless advised to the contrary by S.G.I. [7] He had indeed been disqualified on December 18, 2005, and continued to be so on the date of the motor vehicle accident. Despite that the accused denied herein he had received any notice of suspension from S.G.I. between December 18, 2005 and the date of the motor vehicle accident, February 17, 2006. Indeed in that regard, he produced herein letter from S.G.I., dated February 16, 2006, and postmarked February 20, 2006. In it, S.G.I. confirmed that, as result of the roadside suspension on December 18, 2005, his driver’s license was suspended until October 16, 2006, and until he had completed the required education or recovery program. Unfortunately, he had not received the said letter until subsequent to the motor vehicle accident in issue. [8] In cross-examination herein the accused was reminded of the contents of the letter dated July 11, 2005 from S.G.I., in which he was told that consumption of any alcohol would cause the original driver’s license suspension period to be reinstated, and require him to attend programming. He confirmed that he was aware of those repercussions, but had not bothered to contact either S.G.I. or the police, to confirm the legal effect of the December 18, 2005 roadside suspension. [9] In re-examination he confirmed his belief that, on February 17, 2006 he was able to legally drive because there had been no contact from S.G.I. stating otherwise. ANALYSIS Should the offence of driving while disqualified contrary to the provincial statute be regarded as a full mens rea offence? Is the evidence sufficiently credible for the Court to conclude that the accused had knowingly operated a motor vehicle while subject to a driving disqualification? [10] During argument, I had suggested to counsel that the driving while disqualified matter herein should be regarded as a full mens rea offence, rather than one of strict liability requiring the accused to establish due diligence on a balance of probabilities. I am still of that view, given that the accused’s liberty is jeopardized with the potential of incarceration. Likewise the automatic disqualification and surrender of driver’s license are serious sanctions. [11] Further in that regard, in R. v. Kraftchick (S.J.K.), (2006), 37 M.V.R. (5th) 228, (Sask. Prov. Ct., Kovatch, P.C.J.), the Court made the following observations on the facts therein, commencing at para. 6: The issue in these proceedings for this accused is what is the mens rea or criminal intent that must be established by the Crown. In this regard, have reviewed the decision of R. v. Cote, 2006 SKPC 45 (Sask. Prov. Ct.) (CanLII), decision of His Honour Judge Green. In that case, Judge Green was dealing with charge of drive while disqualified under Section 259(4) of the Criminal Code. He referred to the Supreme Court of Canada decision in R. v. Baril, 1979 CanLII 227 (SCC), [1979] S.C.R. 547 (S.C.C.) [hereinafter “Prue”], and that the mens rea for this offence was knowledge of the driving disqualification. He had reasonable doubt as to whether the accused had the requisite knowledge, and accordingly acquitted. The case at bar involves charge under the Saskatchewan Highway Traffic Act, as opposed to the Criminal Code. However, in the Prue decision, the Supreme Court made it clear that there is presumption against strict liability offences, and in favour of some element of mens rea or criminal intent. As result, do not believe this is strict liability offence. Rather, believe that some mens rea must be established. would conclude, as did Judge Green in the Cote decision, that the requisite mens rea is knowledge of the suspension of the driver’s license, and an attempt to drive in the face of that knowledge. On the basis of all of the evidence, have reasonable doubt that the accused had knowledge of the suspension of his driver’s license. Accordingly, do not believe the Crown has established the offence and the accused must be acquitted. [12] It is therefore necessary to assess the credibility of the witnesses who testified in the context of whether the evidence is sufficient for the Crown to prove beyond reasonable doubt the accused had committed the offence as alleged. The accused is presumed innocent until proven guilty. In the assessment of credibility, the court is guided by the principles restated in R. v. McKenzie (P.N.) (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (From R. v. Rose (A.) (1992), 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do not accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [13] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises reasonable doubt. [14] In assessing the accused’s credibility on that basis, he was adamant in asserting that he had no knowledge of his license suspension at the material time. There are some concerns with his claim in that respect. In particular, he was not able to offer compelling explanation for ignoring the admonition to him in the letter of July 11, 2005 that if he consumed any alcohol, the original driving suspension would be reinstated. Obviously that could have caused him to make further inquiries of S.G.I. or the police. [15] To his credit, however, the accused believed it was appropriate to rely on the advice of the peace officer on December 18, 2005, that it was only 24 hour suspension, unless he heard further from S.G.I. Likewise, it did not appear that the accused had any further communication from S.G.I. subsequent to December 18, 2005, until shortly after the motor vehicle accident, roughly two months later. At that time, it was confirmed that the suspension had been extended to October 16, 2006, contrary to his earlier belief. [16] Apparently it is an important part of the S.G.I. administration of driver’s license suspensions that there be communication by letter, as has occurred here twice, with the purpose of attempting to ensure accused persons are advised in writing of changes in the legal status of their driving suspensions, with clarity and precision. As such, this accused should be able to rely on that procedure, even when that communication was not as timely as one would hope. Not having heard from S.G.I. in the interim, after December 18, 2005, it was reasonable for him to rely on the advice received from the peace officer. In the meantime, it was unfortunate the updated status of the suspension had not been conveyed by S.G.I. in the normal course, any earlier that it actually was. [17] Therefore, applying the principles in McKenzie supra, while do not necessarily believe the evidence of the accused am left in reasonable doubt by it. As such the evidence is not sufficient to prove that the accused had knowingly operated a motor vehicle while disqualified as alleged, and he is not guilty.
The accused was charged that he did drive while disqualified, contrary to s. 89(1) of The Highway Traffic Act, as it was then. The issues were as follows: 1) should the offence of driving while disqualified contrary to the provincial statute be regarded as a full mens rea offence? 2) is the evidence sufficiently credible for the court to conclude that the accused had knowingly operated a motor vehicle while subject to a driving disqualification? HELD: The accused is not guilty. 1) Driving while disqualified should be regarded as a full mens rea offence, rather than one of strict liability requiring the accused to establish due diligence on a balance of probabilities, given that the accused's liberty is jeopardized with the potential of incarceration. Likewise the automatic disqualification and surrender of a driver's license are serious sanctions. 2) The accused was adamant in asserting that he had no knowledge of his license suspension at the material time. Although he was not able to offer a compelling explanation for ignoring the admonition to him in a letter from Saskatchewan Government Insurance (S.G.I.) of July 11, 2005 that if he consumed any alcohol, an original driving suspension would be reinstated, the accused believed it was appropriate to rely instead on the advice of the peace officer on December 18, 2005 that it was only a 24 hour suspension, unless he heard further from S.G.I. Likewise, it did not appear that the accused had any further communication from S.G.I. subsequent to December 18, 2005, until shortly after the motor vehicle accident, roughly 2 months later. At that time, it was confirmed that the suspension had been extended to October 16, 2006, contrary to his earlier belief. Apparently it is an important part of the S.G.I. administration of driver's license suspensions that there be communication by letter, as has occurred here twice, with the purpose of attempting to ensure accused persons are advised in writing of changes in the legal status of their driving suspensions, with clarity and precision. As such, this accused should be able to rely on that procedure, even when that communication was not as timely as one would hope. Not having heard from S.G.I. in the interim, after December 18, 2005, it was reasonable for him to rely on the advice received from the peace officer. As such, the evidence is not sufficient to prove that the accused had knowingly operated a motor vehicle while disqualified as alleged, and he is not guilty.