R v Montgomery

R. v. Montgomery

2006 ONCJ 203
Ontario Court of Justice — MacDonnell J. | June 7, 2006

Background

At 3:00 a.m. on February 8, 2002, Russell Montgomery was speeding on the Gardiner Expressway in Toronto when police pulled him over. A computer check revealed his driver's license had been suspended on December 6, 2001, for failing to pay a fine. The Crown proved that a suspension notice had been mailed to Montgomery's home address at 6 Locksley Place, Brampton — the same address where he lived and received mail.

Montgomery testified that he never knew about the suspension. He admitted getting a speeding ticket sometime in 2001 but couldn't remember what he did with it. Under cross-examination, his answers were telling: "I believe that ticket was paid... I am not sure... Perhaps it could be possible [that I ignored it]." He knew from past experience that ignoring tickets leads to license suspension, but he never bothered checking what happened to this one.

Issues

1. Did the trial judge correctly find that Montgomery failed to exercise due diligence?
2. Did the trial judge err in applying the deemed notice provision under s. 52(2) of the Highway Traffic Act?

The Due Diligence Defence

Driving under suspension is a strict liability offence under s. 53(1) of the Highway Traffic Act. Once the Crown proves you drove while suspended, the burden shifts to you to prove due diligence — that you weren't negligent about knowing your license status. The trial judge found Montgomery's behaviour fell far short of this standard.

The key facts were damning: Montgomery admitted he'd received a speeding ticket, knew that unpaid tickets lead to suspension, had been suspended before for the same reason, but never made any effort to check whether he'd paid the fine or what happened to his license. The Court of Appeal judge agreed this was clearly negligent, writing that "if the appellant lacked knowledge of the suspension it was because of his negligence."

Interestingly, the appeal judge found that the trial judge had misapplied s. 52(2) — the provision that deems mailed notices to be received after seven days. Montgomery's testimony that he was unaware of the suspension should have been treated as an implicit denial that he received the notice. But this error didn't matter because the due diligence analysis was fatal to Montgomery's case regardless of whether he received the notice.

Key Takeaway

Willful ignorance about your license status is not a defence — it's negligence.

If you get a traffic ticket and can't remember whether you dealt with it, you have a legal obligation to find out. Hoping for the best while sticking your head in the sand will not save you from a driving under suspension conviction.