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R. v. MacDougall Respondent's driving privileges, cancelled following his conviction for a driving related criminal offence, were reinstated during the appeal process and finally revoked on the appeal's dismissal. Although aware of the disposition of the appeal, respondent had not yet received the Order of Revocation of License when he was stopped by police and asked to present his licence. A summary offence ticket was later issued to respondent charging him with driving while his licence was cancelled. This appeal related to that charge. The trial judge's decision to dismiss it was upheld on appeal by both the County Court and the Court of Appeal. Held: The appeal should be allowed. The offence created by s. 258(2) of the Motor Vehicle Act was one of strict liability and a defence was available to the accused if he "reasonably believed in a mistaken set of facts which, if true, would render" his act of continuing to drive without a licence, an innocent one. Respondent's mistake, however, because of s. 250(3) of the Act, was one of law in relation to his right to drive after his appeal had been dismissed. The effect of s. 19 of the Criminal Code, which provides that ignorance of the law by a person who commits an offence is not an excuse for committing that offence, is that a mistake of law does not afford respondent a defence. As the accused was not misled by an error on the part of the Registrar of Motor Vehicles, it was unnecessary to consider a defence of justification arising in the situation of a mistake of law occasioned by "officially induced error". The judgment of the Court was delivered by 258. ... Leave to appeal to this Court was sought on the following questions of law, namely:
It will be more convenient in my view to first consider the second of these grounds as it is essential before proceeding with any consideration of the issues raised by this appeal to be satisfied as to the nature of the offence with which the respondent is charged. I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two: In the same case, Mr. Justice Dickson went on to say: Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category. I am in agreement with all of the judges in the courts below, including the dissenting judge in the Court of Appeal, in finding that as the offence here charged is one concerning the public welfare it was properly characterized as "an offence of strict liability" within the meaning of the classification stipulated by Mr. Justice Dickson (supra) and that a defence is accordingly available to the accused if he "reasonably believed in a mistaken set of facts which, if true, would render" his act in continuing to drive his motor vehicle without a licence, an innocent one. The circumstances giving rise to this appeal are not seriously in dispute and can be summarized in their essentials as follows: On March 6, 1979 the respondent was convicted of "fail duty at scene of accident contrary to section 233-2 of the Criminal Code," as a result of which an order of revocation of his licence to drive was sent to him on April 10, 1979 by the Registrar of Motor Vehicles of the Province of Nova Scotia in conformity with the provisions of s. 250(1) of the Motor Vehicle Act. In due course the respondent appealed his conviction and on May 1, 1979 a notice of re-instatement of his driving privileges as of that date was sent to him. On December 21, 1979 a written decision was filed with the Clerk of the County Court dismissing the appeal and, of particular importance in this case, some time in January 1980, the respondent's solicitor advised him of the fact that his appeal had been dismissed. It was not until January 25, 1980, at about 9 a.m., that the respondent was stopped by the R.C.M.P. while driving to work in his motor vehicle at which time his licence was called for by the police. On the evening of the same day the respondent received in his mail a notice entitled "Order of Revocation of License" signed by the Registrar of Motor Vehicles purporting to be issued "pursuant to the authority vested in ... [him] by Section 250 of the Motor Vehicle Act." It was not until March 11, 1980 that a summary offence ticket was issued to the respondent charging him with the offence with which we are now concerned. As the actions of the Registrar of Motor Vehicles purported to be in the exercise of his authority under s. 250 of the Motor Vehicle Act, I find it desirable to reproduce the relevant portions of that section in full. That section reads as follows and I have underlined those portions which I consider to be particularly relevant: 250 (1) Subject to subsections (3) and (4), the Registrar or the Director of Highway Safety shall revoke effective the date of conviction the driver's license of any person upon receiving a record of his conviction for any of the following crimes or offences: The respondent does not question the validity of his conviction on March 6, 1979 for a breach of s. 233(2) of the Criminal Code nor the notice of the order of revocation of his licence which was sent to him on April 10 of that year by the Registrar of Motor Vehicles. It is apparent that pursuant to s. 250(1) of the Motor Vehicle Act, proof of such conviction carries with it a mandatory requirement that the Registrar shall revoke the licence of a convicted driver, but what is at issue here is the status of such a driver after he has asserted an appeal from his conviction and this involves a close consideration of s. 250(3) which provides that when a person who has been convicted under s. 233 of the Criminal Code appeals against that conviction he "shall be deemed not to be convicted for the purpose of subsection ... (1) ... [of s. 250] until the appeal has been heard and dismissed" and "the driver's license or the privilege of obtaining a driver's license shall be thereupon and hereby revoked and shall remain revoked." In acquitting the respondent the trial judge made the following findings with respect to the effect of the notice entitled "Order of Revocation of License" which was not received by MacDougall until the afternoon of January 25 whereas the present charge alleges a breach of s. 258 of the Motor Vehicle Act at 9 a.m. on the morning of that day. In this respect the learned trial judge found: I believe Mr. MacDougall when he says that the actual certified mail arrived that afternoon and the remaining question, one of law and one of fact to be disposed of, is whether or not that he believed that he was entitled to drive and whether or not that gives him a defence. First of all, I believe Mr. MacDougall when he tells me he was under the honest impression that he was entitled to drive pending some notification from the Department of Motor Vehicles, the Registrar specifically, telling him that he was once again suspended from driving as a result of the disposition of his appeal. I base that on his appearance and testimony that he gave on the stand, his behaviour when he was accosted, he was open and obvious in his driving.... The trial judge also found of MacDougall that His previous experiences with the notices from the Department and the correspondence from the Department, I would take it to lean Mr. MacDougall towards the legitimate understanding that he might reasonably expect further indication from the Department, after the appeal was disposed of. His Honour Judge Sullivan and the majority of the Court of Appeal affirmed these findings and held that they disclosed a defence to the charge here laid on the ground that they disclosed a mistake of fact on the part of the accused within the meaning of R. v. Sault Ste. Marie (supra), whereas I am unable to treat the respondent's mistake otherwise than as a mistake of law in relation to his right, because of s. 250 (3), to drive after his appeal had been dismissed. This was a mistake of law which does not afford the respondent a defence having regard to s. 19 of the Criminal Code which provides that: 19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. This is no more than a codification of the common law rule and undoubtedly applies in the present case. In this regard Macdonald J.A., speaking on behalf of the Court of Appeal, introduced a new concept in the law of mistake, saying: On the particular facts of this case and in light of what I have just said I am not convinced that the mistake of the respondent as to the effective date or time of revocation of his license was purely one of law. It was a reasonable mistake based on certain acts of the Registrar and may be but an error of fact or a mix of both fact and law. It is not difficult to envisage a situation in which an offence could be committed under mistake of law arising because of, and therefore induced by, "officially induced error', and if there was evidence in the present case to support such a situation existing it might well be an appropriate vehicle for applying the reasoning adopted by Mr. Justice Macdonald. In the present case, however, there is no evidence that the accused was misled by an error on the part of the Registrar. The only reference which I have been able to find in the testimony of the accused which could even suggest such a thing is the following passage from his cross-examination: Q. But in any event sir, you did receive a notification of revocation of license on the 10th of April 1979? And earlier Mr. MacDougall had given the following evidence: Q. Having received notice of the appeal having been lost, Mr. MacDougall, did it at all appear to you that maybe your license would be under suspension? It would be difficult to conceive of more clear or imperative language than that contained in s. 250(3) of the Motor Vehicle Act whereby the driver's licence shall be automatically "revoked and shall remain revoked" if an appeal is "dismissed". The failure to appreciate the legal duty imposed by that law is of no solace to the appellant. Before concluding, I should make mention of R. v. Prue, R. v. Baril, [1979] 2 S.C.R. 547, in which the majority of the Court held that, for the purposes of the Criminal Code, whether there has been an effective suspension is simply a question of fact. The case arose under s. 238(3) of the Criminal Code and the majority decision, delivered by the Chief Justice at p. 552, makes it clear that a distinction may be drawn between enforcement of a driving offence under the Criminal Code and one for the enforcement of a provincial enactment. In my opinion, the issue of ignorance of fact or ignorance of law is properly applicable to the enforcement of the provincial enactment under which the suspension from driving is made and not to the enforcement of s. 238(3) of the Criminal Code. I am of the opinion that nothing in the foregoing reasons runs counter to the decision of the Court in Prue and Baril. Appeal allowed.
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