N THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121115

Docket: 93850

Registry:
Kamloops

Between:

Regina

Respondent

And

Peder Fogt

Appellant

Before:
The Honourable Mr. Justice N. Brown

On judicial review from
decision of Judicial Justice of the Peace

dated March 13, 2012

Reasons for Judgment

Introduction

[1]            
A Judicial Justice of the Peace found Mr. Fogt guilty as operator of a
vehicle of violating s. 68(3) of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 (“MVA”) for having failed to take steps to locate and
notify in writing the owner or person in charge of property whose property he
had damaged while operating it. Section 68(3) provides:

(3)        The driver or
operator or any other person in charge of a vehicle involved in an accident
resulting in damage to property on or adjacent to a highway, other than a
vehicle under subsection (2), must take reasonable steps to locate and notify
in writing the owner or person in charge of the property of the fact of the accident
and of the following:

(a)       
the name and address of the driver, operator or other person in charge of the
vehicle;

(b)       
the name and address of the registered owner;

(c)        the licence
number of the vehicle.

[2]            
Section 75 of the MVA provides that if operator of the vehicle
fails to do what the it requires of them, they are guilty of an offence
punishable under the Offence Act, R.S.B.C. 1996, c. 338.

[3]            
Mr. Fogt appeals his conviction on two grounds. First, the Judicial
Justice questioned the accused to an extent and in a manner that conveyed the
impression the Judicial Justice placed authority on the side of the
prosecution. This conduct conveyed the impression he disbelieved his testimony,
contrary to the principles set out in R. v. Russell, 2011 BCCA 113.

[4]            
Second, the appellant argues that the Judicial Justice erred in law by
misapplying the doctrine of reasonable doubt, as required by R. v. W.(D.),
[1991] 1 S.C.R. 742.

[5]            
The respondent Crown notes s. 109 of the Offence Act applies the
appeal provisions of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”),
to appeals arising under the MVA offences. Section 686(1)(a) of the Code
therefore applies to the present case; thus allowing for an appeal against
conviction where the trial verdict is unreasonable, or cannot be supported by
the evidence, or is an incorrect decision on a matter of law, or on any ground
where there was a miscarriage of justice.

[6]            
Crown agrees with the appellant that the Judicial Justice improperly
intervened in the trial process and, on this basis, submits I ought to order a
new hearing, as opposed to an acquittal, which the appellant seeks.

[7]            
As for the proper remedy, admissible evidence before the court capable
of supporting a conviction calls for the remedy of a new hearing: R. v.
Woodward (1975), 23 C.C.C. (2d) at 510 (Ont. C.A.); R. v. Hennesy,
2008 BCSC 1297 at para. 34.

[8]            
I allow the appeal on the first ground and turn now to considering
whether evidence capable of supporting a conviction is present.

Admissible
Evidence Capable of Supporting a Conviction

[9]            
In ordering a new trial, as opposed to an acquittal, it is necessary to
determine if there is admissible evidence capable of supporting a conviction.

[10]        
The Crown called five witnesses, four civilian and one police officer.
Two of the civilian witnesses were employed at A&W, which operated a drive
through restaurant, and one was employed by Petrocan, which operated a gas
station attached to the A&W. The witnesses testified about property damage
they saw occur when the appellant drove his tractor trailer right through the
A&W drive-through lane. The A&W had not opened yet, but employees were
in the restaurant at the time. The fourth civilian witness was a Kal Tire
employee who, some distance from where the damage occurred, gave the appellant
roadside assistance. He examined damaged tires and wheels on the right side of
the trailer the appellant was hauling and described the damage he observed.

[11]        
The incident that led to the appellant’s conviction occurred at about 6
am, January 25, 2011. At the hearing, the appellant testified he is a professional
driver with 16 years experience. He had wanted to stop for a coffee and
washroom break at what he thought was a Petrocan truck stop. He entered into a
drive-through lane at the A&W. He saw an employee in the lot, but the
A&W was not yet open to serve customers.

[12]        
He intended to exit the drive-through lane and the property by swinging
his vehicle as wide as possible. As he did so, he felt his left-side tires
lifting up onto the curb of the concrete island that contained the menu board
and intercom system which customers use to place orders at the A&W. It was
dark at the time.

[13]        
The appellant testified he felt three bumps. Looking back, he did not
see any problems. Silhouetted behind him he could see the menu board and one of
the two posts supporting it. He did not hear anything. He said his radio was on
and the cabin was noisy. He did not see any sparks from the trailer.

[14]        
He testified that when he later learned about the extent of the damage
his unit had caused he was shocked.

[15]        
The respondent Crown amplified the evidence the appellant recounted,
summarized here. But given there will be a new hearing, I will not delve too
much into the record.

[16]        
Not too far outside of Chase, B.C. which is where the incident had
occurred, the appellant stopped roadside to look and his trailer and to use the
washroom. He noticed damage to the tires and rims on the driver’s side. He
called Kal Tire for roadside assistance. He testified the damage had probably
occurred when he was at the A&W and surmised he must have run over a bar or
post that then had become stuck in the wheel wells on the left side of the
trailer. It also occurred to him that the three bumps he felt earlier at the
A&W drive-thru was related to the damage he saw on his tires and rims.

[17]        
He never returned to the A&W to confirm the damage or to speak to
anyone there.

[18]        
Crown witnesses at the scene testified about sparks, noise and other observations.
They confirmed the extensive damage to the menu board system.

[19]        
The Kal Tire employee testified the four tires and four wheels on the
entire left side of the trailer were damaged beyond repair.

[20]        
The Judicial Justice’s reasons on the essentials are brief:

1.         THE COURT:
In this case, Mr. Fogt, who has admitted to being the driver, drives his
commercial vehicle through a drive-thru lane, additionally knowing – his
evidence in chief, he says he knows he was in a drive-thru lane because he saw
all this electronic equipment, which is common, that appears on the driver’s
side of any motor vehicle approaching in this drive-thru lane.

2.         He knew he
was in a drive-thru lane, and he also testifies that he has never driven a
commercial vehicle in a drive-thru lane, previously, in his entire professional
driving career and yet finds himself in this drive-thru lane next to the
A&W, and as he is going by, he feels three bumps. One he knows for sure, as
he says the right-hand side of the tractor unit went up on the curb because he
was trying to make the turn as wide as possible to avoid this island containing
electronic equipment, associated with the A&W restaurant.

…

6.         I simply
do not accept the testimony of Mr. Fogt in this case, that he was not aware
whatsoever that he had created any kind of damage or been involved in any kind
of incident. The nature of the damage is such that it would have jarred his
vehicle. In driving over these two cement posts, it would have created a
substantial amount of movement. There would have been so much resistance
created, as he was driving by this equipment, that he would had to have
noticed.

6.        
[sic] For those reasons, I find Mr. Fogt guilty as charged. It is a fine of $196,
Mr. Fogt. Are you able to pay this forthwith?

[21]        
I find the record demonstrates admissible evidence capable of supporting
a conviction and warrants a new hearing.

Clarification
of MVA s. 68(3)

[22]        
Given this Court’s present role as appellate court, and the parties’
starkly different interpretations of the necessary elements of MVA s.
68(3) that require proof beyond a reasonable doubt, I will consider their
submissions and decide which position is correct.

[23]        
The appellant submits the Judicial Justice failed to give adequate
consideration to, and did not properly apply the test in W.(D.) to the
defence the appellant’s evidence raised about his claimed lack of knowledge of
the damage done to the property. He submits the Judicial Justice turned first
to the Crown’s evidence regarding the circumstances. After accepting the
evidence of the witnesses called, he then found he disbelieved the evidence of
the appellant. The appellant submitted, therefore, that he had reversed the proper
order of the test and misapplied it, thus making an error of law.

[24]        
The appellant submits that Judicial Justice ought first to have
indicated whether he believed the appellant or not; then whether his testimony
left him with a reasonable doubt; and then whether, on the remaining evidence,
he was convinced of each element of the offence beyond a reasonable doubt.

[25]        
He submits that had the Judicial Justice done so, he would have been
left with a reasonable doubt on the second branch of the appellant’s evidence.
He points the Judicial Justice had accepted:

§  The appellant had stopped the vehicle
to look in the rear view mirror.

§  He had limited visibility to see
damage done to the intercom.

§  He had made some effort to see if he had
cleared the area.

[26]        
The appellant submits, therefore, the Judicial Justice could not
conclude beyond a reasonable doubt that the appellant “would have to have
known” that the damage had occurred. The appellant submits that had he known
the damage had occurred, or was wilfully blind to it, he would not have looked
into the rear view mirror, which should have left the Judicial Justice, having
accepted said evidence, with a reasonable doubt.

[27]        
The next point raised by the appellant is that the Judicial Justice gave
no reasons for his having rejected the evidence of the appellant that inside
the cab of the tractor he could not hear noise caused by the trailer as 
the trailer passed over the concrete island holding the menu board. The appellant
further submits that absent evidence from the Crown to the contrary as to what
could be heard within the cab, the appellant’s evidence – he felt bumps but not
noise – was a plausible explanation, corroborated by the dimensions of the
commercial trailer, the cabin environment and the darkness of the early morning
hours.

[28]        
The appellant’s third point is that the Judicial Justice failed to give
reasons on why he had concluded the appellant had to have heard noise caused by
the trailer striking the menu board. He says the Judicial Justice ought to have
give reasons, given his the findings were supported only by circumstantial
evidence. He also points out the witnesses who testified about sound and
vibrations noticed them from a different perspective than that of the appellant
inside the cab. Further, he submits, evidence about how surprised he was when
told he had caused the damage, corroborated his position. Accordingly
therefore, the appellant submits, had the Judicial Justice properly applied W.(D.),
he could not have properly concluded the Crown had proven its case beyond a
reasonable doubt and the appellant should thereby be acquitted, or a new trial
ordered.

[29]        
Whether the Judicial Justice was obliged to apply W.(D.) depends
on a correct interpretation of s. 68(3) of the MVA. and the nature of
the charges against the appellant.

[30]        
The respondent submits that because s. 68(3) of the MVA does not
contain the words “willfully”, “with intent”, “knowingly” or “intentionally,”
it is deemed a strict liability offence. To establish the offence has been
committed the Crown need only prove the actus reus elements have been
committed beyond a reasonable doubt. The respondent further submits that once
the Crown has proven the actus reus, the defendant may avoid conviction
by demonstrating on a balance of probabilities that he or she took reasonable
care, i.e. exercised due diligence, to avoid the occurrence of the actus
reus as per R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.).

[31]        
In Sault Ste. Marie, the Supreme Court
distinguished between “true criminal offences” and public welfare offences. It
stressed the prime importance of recognizing the distinction between offences
where there is no mens rea requirement as opposed to a true crime.
Furthermore, Sault Ste. Marie distinguished strict liability offences as
public welfare offences, whereby a due diligence defence could be raised; as
compared to absolute liability offences, where it is not open to the accused to
“exculpate himself by showing that he was free of fault.” Sault Ste. Marie at
1326.

[32]        
The Court held that the correct approach is to relieve the Crown
of the burden of proving mens rea, given the” virtual impossibility in
most regulatory cases of proving wrongful intention.” The decision summarizes
the duties of the prosecution in public welfare cases at 1326:

2.         Offences
in which there is no necessity for the prosecution to prove the existence of mens
rea; the doing of the prohibited act prima facie imports the
offence, leaving it open to the accused to avoid liability by proving that he
took all reasonable care. This involves consideration of what a reasonable man
would have done in the circumstances. The defence will be available if the
accused reasonably believed in a mistaken set of facts which, if true, would
render the act or omission innocent, or if he took all reasonable steps to
avoid the particular event. These offences may properly be called offences
of strict liability…

[Emphasis
added.]

[33]        
I agree with the respondent’s submissions that s. 68(3) of the MVA is
a public welfare offence. Public welfare offences are prima facie
offences of strict liability rather than absolute liability. The relevant
inquiry requires consideration of “[t]he 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” Sault Ste. Marie at
1326.

[34]        
Most importantly, the Offence Act provides the possibility of
imprisonment for not more than six months for this offence. The possibility of
a jail term supports the conclusion that s. 68(3) is a strict liability offence
rather than absolute. Furthermore, the precise language of s. 68(3) contains,
as an element of the offence, the accused’s obligation to take “reasonable
steps” to notify the owner or person in charge of property of the fact of the
accident. However, s. 68(3) gives an accused a way to avoid conviction for
failing to fulfill their positive legal duty; by adducing evidence of the
reasonable steps they took to notify the owner or controller of the damaged
property. By establishing an objective standard of reasonableness the positive
legal duty to notify, therefore, s. 68(3) has left open to the accused the
possibility of defending their conduct.

[35]        
It is clear the gravamen captured by s. 68(3) is to hold individuals
liable when they fail to perform their positive legal duty to take reasonable
steps to locate and notify the owner or person in charge of damaged property,
once it has been proven they have been involved in an accident that has caused
property damage. But their knowledge the accident has occurred is not an
element of the actus reus of the offence that the Crown must prove
beyond a reasonable doubt.

[36]        
Given that s. 68(3) is a strict liability offence, the accused may raise
a due diligence defence, which they must prove on a balance of probabilities to
escape conviction.

[37]        
A due diligence defence is arguable two ways. First, in the words of
Dickson J., the due diligence defence “will be available if the accused
reasonably believed in a mistaken set of facts which, if true, would render the
act or omission innocent”. In other words, the argument that an accused did not
have knowledge that an accident had occurred is a mistake of fact defence.
Alternatively, the accused can raise a due diligence defence by demonstrating
they took reasonable steps to notify the owner or person in charge of the
property of the fact of an accident. If, however, an accused reasonably mistook
the facts, they would not be required to take reasonable steps to acquire
knowledge of the damage. But, if the accused was "wilfully blind" to
the facts, they cannot establish the mistaken belief defence on the balance of
probabilities.

[38]        
The principles enunciated in W.(D.) do not apply in the case at
bar.

Disposition

[39]        
In summary, I allow the appeal and remit the matter for a new hearing.

“N. Brown J.”