R v Charles

R. v. Charles

2017 ONCJ 176
Ontario Court of Justice — Justice Wayne G. Rabley | March 16, 2017

Background

Keith Charles was driving at 1:44 AM on January 3, 2016, when London Police stopped him and discovered his license was suspended for an unpaid fine. The Ministry had mailed a suspension notice to his address on December 17, 2015. Charles testified he never received any notice and had no idea his license was suspended. When he investigated after being charged, he discovered the underlying ticket was from Brantford — dated January 22, 1991. The Ministry had renewed his license five times since that 25-year-old ticket, but suddenly moved to enforce it in December 2015, just two days before mailing the suspension notice.

Hamid Golbasz faced similar circumstances. Stopped while driving to work on March 18, 2015, he was charged with driving under suspension for an unpaid fine. The suspension notice had been mailed to his rural Bothwell address on March 11th. Golbasz testified he was working in London, stayed overnight at his parents' house, and only found the notice in his mailbox on March 19th — the day after being charged. He immediately paid the fine and had his license reinstated on March 20th.

Issues

1. What standard of proof applies to the due diligence defence for driving while suspended charges?
2. Can someone establish due diligence simply by testifying they never received the suspension notice?
3. Does failing to pay a ticket automatically disqualify someone from raising due diligence?

The Due Diligence Defence

Justice Rabley clarified that driving while suspended is a strict liability offence. The Crown only needs to prove the actus reus — that the person's license was suspended and they drove while suspended. Knowledge of the suspension is not required for conviction. However, the defence of due diligence remains available.

The key test, established in R. v. Beatty, is whether the accused "reasonably believed that his driver's licence was not suspended at the time that he was caught driving." This involves proving on a balance of probabilities that they either: (1) reasonably believed in facts that would make their conduct innocent, or (2) took all reasonable steps to avoid the particular event.

Justice Rabley rejected the Crown's argument that administrative efficiency should trump individual rights. He noted that s. 53 of the Highway Traffic Act can result in up to 6 months imprisonment, making it a serious penal provision. The judge emphasized that "seldom will be the case" where someone who testifies they didn't receive notice will fail the balance of probabilities test, unless their evidence is rejected or contradicted by other evidence.

The Unpaid Ticket Problem

Both lower courts had found that failing to pay the underlying ticket automatically defeated the due diligence defence. Justice Rabley firmly rejected this reasoning. He held that the connection between an unpaid ticket and eventual suspension is "too remote" because many situations exist where unpaid tickets don't lead to suspension — officers might not file tickets, justices might quash them, or the Ministry might delay enforcement for years (as in Charles' case).

The judge emphasized that the test focuses on knowledge of the suspension itself, not negligence in allowing circumstances that might eventually lead to suspension. Otherwise, s. 52(2) of the Highway Traffic Act — which deems service complete seven days after mailing unless the person proves non-receipt through circumstances beyond their control — would serve no purpose.

Key Takeaway

If you genuinely didn't receive a suspension notice and testify credibly about it, you should be acquitted even if you were negligent about paying the underlying ticket.

The court must provide clear reasons if rejecting your testimony about non-receipt. Simply failing to pay a ticket, even years earlier, doesn't automatically destroy your due diligence defence — the focus is on whether you reasonably believed your license was valid when you drove.