1. Case name:
R. v. Lupo
Between
Her Majesty the Queen, and
Charles Lupo
[2008] O.J. No. 5591
Information No. 07-3708
Ontario Court of Justice
Newmarket, Ontario
P. Tetley J.
Oral judgment: December 24, 2008.
(30 paras.)
Transportation law -- Motor vehicles and highway traffic -- Liability -- Driving while license
suspended -- Appeal by accused from conviction for driving with suspended license allowed --
Accused denied knowledge of suspension and alleged to have never lived at address Ministry sent
suspension notice to -- Trial judge's conclusion accused not credible on basis he was forgetful in
responding to notice brought to his attention difficult to rationalize -- Judge erred in admitting
accused's driving record, which was highly prejudicial and did not prove he had been notified of
suspension -- As it was possible to reject accused's defence, but credibility wrongly assessed at
trial, new trial ordered.
Appeal by the accused from his conviction for driving while his license was suspended. The
accused had been operating a commercial vehicle when he was stopped for inspection. The
inspector learned that the accused's license had been suspended for non-payment of fines. The
accused alleged that he was unaware that his license had been suspended and denied having ever
lived at the address the Ministry sent the notice of suspension to. The trial judge made a negatively
credibility finding about the accused. The accused argued the trial judge had erred in improperly
assessing his credibility, reversing the burden of proof and improperly participating as an analyst of
the accused's signature.
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2. HELD: The appeal was allowed. The trial judge improperly assessed the accused's credibility. The
judge concluded that the accused may have been forgetful or irresponsible in neglecting to respond
to a notice when brought to his attention. However, as the judge did not make a finding of
intentional disregard or wilful blindness, it was difficult to rationalize how this observation led to a
negative credibility finding. Admitting the accused's driving record into evidence was highly
prejudicial and unfair. The driving record had no probative value as it did not prove that the accused
had been notified that his license had been suspended. The trial judge also improperly relied on his
own experience to analyze the accused's handwriting. While the trial judge had improperly assessed
the accused's credibility, it was still possible to reject the accused's defence. Therefore, a new trial
was ordered.
Statutes, Regulations and Rules Cited:
Highway Traffic Act, R.S.O. 1990, c. H.8, s. 52(1), s. 53(1)
Charge: Drive While Under Suspension - S. 53(1) Highway Traffic Act.
Counsel:
C. Ponesse: Counsel for the Crown.
M. Riddell: Counsel for the Appellant.
APPEAL JUDGMENT
1 P. TETLEY J. (orally):-- This is an appeal by Charles Lupo from a decision that resulted in the
conviction of the Appellant for the offence of driving while suspended contrary to Section 53(1) of
the Highway Traffic Act.
FACTUAL SUMMARY
2 On March 30, 2007, the Appellant was operating a commercial motor vehicle that was subject
to inspection by provincial offences investigator Bendictson. At the investigator's request the
Appellant was asked to produce certain documentation relating to the vehicle and his driver's
licence. All of the requested information was produced according to the investigator with the
exception of the licence.
3 A subsequent check of the status of the Appellant's driver's licence revealed that it was under
suspension as a consequence of unpaid fines.
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3. 4 The Appellant testified as the sole defence witness at his own trial.
5 Charles Lupo indicated he produced his driver's licence as requested by the inspector. He
denied any knowledge of the fact his licence had been suspended effective November 8, 2006.
6 The Appellant also denied having ever received notice of the suspension of his driving
privileges.
7 He acknowledged having resided at the address noted in the Ministry of Transportation records
and confirmed his residence had not changed over the course of the previous 27 years.
8 The Appellant also denied having previously received notice that his licence was suspended in
either December 2006 or January 2007.
GROUNDS OF APPEAL
9 In an exemplary legal factum the Appellant's counsel cites a number of alleged deficiencies in
the Appellant's trial and the analysis employed by the presiding Justice of the Peace that led to the
Appellant's conviction.
10 The alleged legal deficiencies may be generally categorized as follows:
1. The failure of the Crown to establish proof of personal service of the notice
of suspension of the Appellant's driver's licence by way of admissible
documentary or viva voce testimony;
2. The improper and prejudicial admission, albeit with the consent of the
appellant's trial counsel, not Mr. Riddell, of the Appellant's Highway
Traffic Act driving record during the course of the Crown's case;
3. The trier of facts' improper application of the Supreme Court of Canada
directives in R. v. W.D. (1991) 63 C.C.C. (3d) 397 (S.C.C.) in his analysis
of the Appellant's trial testimony;
4. The reversal of the burden of proof as a consequence of the failure of the
trier of fact to consider the potentially available defence of due diligence;
5. The impermissible participation by the trier of fact as an analyst of the
Appellant's purported signature in the absence of expert testimony.
ANALYSIS
11 In considering the issues raised in this appeal I have reviewed the entirety of the trial record
including the documentary evidence tendered as exhibits at the Appellant's trial. I have reviewed the
Appellant's factum, the related authorities and counsel's oral submissions at the time this matter was
argued in September.
12 In my view, while there is merit to most of the grounds of appeal, cited two of the identified
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4. concerns are dispositive of this appeal.
13 Firstly, a review of the trier of fact's consideration of the Appellant's trial testimony indicates
an inexact application of the credibility assessment directed by the Supreme Court of Canada in R.
v. W.D. That case requires that the accused be acquitted if the trier of fact believes the accused's
evidence or is left in a state of reasonable doubt as a consequence of that evidence. Even if the trier
of fact is not left in doubt by the evidence offered by the defendant, he or she, must nevertheless
ask, on the basis of the evidence that is accepted, whether they are convinced beyond a reasonable
doubt of the defendant's guilt.
14 At one point in his judgment the Justice of the Peace concludes the Appellant may have been
"forgetful" or "irresponsible" in neglecting to respond to a notice or notice(s) of suspension that
were likely to have been brought to his attention prior to the March 30, 2007 incident.
15 Unless these acts of neglect amounted to an intentional disregard of such notices or were
found to constitute wilful blindness it is difficult to rationalize the apparent disbelief of the
Appellant's trial testimony.
16 Secondly, the filing of the Appellant's driving record abstract as part of the Crown's case was
highly prejudicial to the Appellant's fair trial interests and should not have been permitted.
17 The Crown proffered this document in order to purportedly prove the Appellant had been
subject to two previous motor vehicle stops during which he had allegedly received notice of the
fact his licence was under suspension. No direct evidence was offered to establish service of such
notices. No witnesses were called and certificates of conviction or official court transcripts of the
trial proceedings relating to those earlier incidents were not tendered.
18 This document cannot serve as proof of the earlier enforcement actions and it's admission,
even with the consent of the defendant's trial counsel, does not change that fact.
19 While the appellant may well have chosen to testify in his own defence the improper
admission of his Highway Traffic Act driving record left him with little alternative.
DISPOSITION
20 The appellant seeks an acquittal as a consequence of the noted legal deficiencies at his trial.
Reliance is placed on the case of R. v. Bellamo, [1995] O.J. No. 313, a decision of Justice
Fairgrieve of the Ontario Court of Justice, a decision which I adopt.
21 In that case Justice Fairgrieve concluded the Justice of the Peace had erred in law at trial by
concluding the Appellant had the burden of establishing his defence of lack of knowledge of the
suspension of his driver's licence on a balance of probabilities.
22 The proper test was whether the defence had left the Court in a state of reasonable doubt as to
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5. whether the Appellant was aware of the suspension.
23 Mr. Lupo's defence at trial was predicated on his purported lack of knowledge of the fact his
licence was under suspension as of at March 30, 2007.
24 In establishing proof of this offence the Crown is entitled to rely on the statutory presumption
referenced in Section 52(1) of the Highway Traffic Act, R.S.O. 1990 c. 148 (as amended). That
section provides as follows:
"52(1) Service of Notice of Licence Suspension. Where a person's driver's
licence is suspended, notice of the suspension is sufficiently given if delivered
personally or,
(a) in the case of a suspension under Section 41 or 42, sent by registered mail
addressed to the person to whom the licence was issued at the latest current
address of the person appearing on the records of the Ministry;
(b) in the case of all other suspensions, sent by mail addressed to the person to whom
the licence was issued at the latest current address of the person appearing on the
records of the ministry.
25 Section 52(2) deems service by either ordinary or registered mail to have been received on the
7th day after mailing unless the person to whom notice was sent establishes that he or she did not
receive the notice while acting in good faith through absence, accident, illness or other cause
beyond her control.
26 As the trier of facts reasons seem to suggest a rejection of the Appellant's trial testimony
regarding his assertion that he did not receive the notice of suspension that was mailed to his home
it does not inevitably follow that a finding of not guilty would result.
27 In my opinion, a trier of fact acting reasonably and according to law could reject the
Appellant's assertion that he was unaware that his licence had been suspended as of March 30,
2007.
28 As a consequence of the noted legal deficiencies at trial and the absence of clearly articulated
reasons justifying the rejection of the Appellant's assertion of a lack of knowledge of the status of
his driver's licence the appropriate disposition here, in my view, is to order a new trial.
29 Even if the Justice of the Peace had correctly assessed the credibility of the Appellant within
the context of the entirety of the trial record his erroneous reliance on his own experience in
assessing the similarity of two samples of the appellant's handwriting and the admissibility and
apparent acceptance of the Appellant's driving record abstract in substantiation of proof of the
Appellant's knowledge of the fact his driver's licence had been suspended were errors that would in
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6. themselves warrant the granting of a new trial.
CONCLUSION
30 For these reasons the appeal is allowed. The conviction is set aside and a new trial is ordered.
qp/s/qlala/qlcnt/qlaxw
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