R v Harry

R. v. Harry

St. Catharines Court File No. 2111-999-10-3577-00
Ontario Court of Justice — Justice D.A. Harris | December 1, 2011

Background

Gordon Harry was charged with speeding and driving while suspended under the Highway Traffic Act. The charges stemmed from an incident on March 28, 2010. Harry's license had been suspended due to an unpaid fine, and a Notice of Suspension was mailed to his address at 691 Fielden Avenue, Rear, Port Colborne, Ontario on March 19, 2010. Under section 52(2) of the Highway Traffic Act, Harry was deemed to have received the notice on March 26, 2010 — two days before he was caught driving.

At trial, the Justice of the Peace convicted Harry of speeding but dismissed the driving while suspended charge. The Crown appealed the dismissal, arguing that the lower court applied the wrong legal test and that Harry should have been convicted.

Issues

1. What is the correct legal test for driving while suspended charges?
2. Did Harry prove he didn't know about his suspension and wasn't negligent in failing to know?

The Due Diligence Defence

Justice Harris confirmed that driving while suspended is a strict liability offence. This means the Crown only needs to prove two things: (1) that the defendant's license was suspended, and (2) that he drove while it was suspended. The Crown doesn't need to prove the defendant knew about the suspension — but the defendant can avoid conviction by proving a "due diligence" defence.

To succeed with due diligence, Harry had to prove on a balance of probabilities that either: (1) he didn't receive the notice "through absence, accident, illness or other cause beyond his control" (rebutting the section 52(2) presumption), or (2) he didn't otherwise know of the suspension and his lack of knowledge wasn't due to his own negligence.

Harry testified that he had ongoing mail delivery problems — sometimes not getting mail for "a week, week and a half" because the mailman would put it in the wrong slot and it would "go through to the other apartment." He also testified that his employer had told him they would pay his outstanding fine, so he assumed it had been paid. The Justice of the Peace found this evidence created a reasonable doubt about whether Harry knew he was suspended.

The Crown's Appeal Fails

Justice Harris dismissed the Crown's appeal, finding that the trial judge's decision was reasonable. The Notice of Suspension was mailed on March 19th (a Friday), meaning there would have been no mail delivery on Saturday, March 27th or Sunday, March 28th. Given Harry's documented mail problems and his reasonable belief that his employer had paid the fine, it was entirely possible the notice didn't arrive until Monday, March 29th — the day after the alleged offence.

Crucially, Justice Harris found that the trial judge believed Harry's testimony about both his mail problems and his employer's promise to pay the fine. While the judge could have been clearer in explaining his reasoning, the decision was sound and showed no substantial wrong or miscarriage of justice.

Key Takeaway

Even with strict liability offences, credible evidence of circumstances beyond your control can provide a complete defence.

If you're charged with driving while suspended, document any mail delivery problems and gather evidence about why you reasonably believed your license was valid — the court must consider all the circumstances, not just whether a notice was technically mailed.