R. v. Kean, (1989) 80 Nfld. & P.E.I.R. 159 (NFPC)

JudgeHyslop, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateNovember 29, 1989
JurisdictionNewfoundland and Labrador
Citations(1989), 80 Nfld. & P.E.I.R. 159 (NFPC)

R. v. Kean (1989), 80 Nfld. & P.E.I.R. 159 (NFPC);

    249 A.P.R. 159

MLB headnote and full text

R. v. Roger Brian Kean

Indexed As: R. v. Kean

Newfoundland Provincial Court

Hyslop, P.C.J.

November 29, 1989.

Summary:

The accused was convicted of impaired driving and his licence was suspended. Three days later the accused was charged with driving while disqualified. There was evidence that the court had informed the accused of the suspension but failed to give him a copy of the order. Section 260(1) of the Criminal Code required that the accused be informed of the suspension, given a copy of the order, and informed of the consequences of breaching the order.

The Newfoundland Provincial Court acquitted the accused. The court held that s. 260(1) was a mandatory provision and that it had not been complied with.

Criminal Law - Topic 1387

Offences against person and reputation - Motor vehicles - Driving while disqualified - General - An accused was charged with operating a motor vehicle while disqualified, contrary to s. 259(4) of the Criminal Code - Incident happened three days after licence was suspended - Section 260(1) required that the prohibition be read by the accused and that he receive a copy - Accused was told of prohibition when convicted - However, copy of prohibition was received only after the incident in question - The Newfoundland Provincial Court held that compliance with the notice provisions in s. 260(1) was mandatory and acquitted the accused.

Criminal Law - Topic 1388

Offences against person and reputation - Motor vehicles - Driving while disqualified - Evidence - Accused was charged with driving while licence was suspended - The Newfoundland Provincial Court held that an element of the offence was proof that the accused had knowledge of the suspension - Court stated that evidence of such knowledge could be provided through the use of s. 260(4) of the Code, which deemed knowledge when notice given by registered mail; by the transcript of the earlier proceeding provided the accused was present; by a previous admission of knowledge by the accused in a voluntary statement; by admission of knowledge of suspension to a third party and by testimony of a third party who was present when the court informed the accused of the suspension - See paragraph 13.

Criminal Law - Topic 1389

Offences against person and reputation - Motor vehicles - Driving while disqualified - Intention or mens rea - The accused was charged with operating a motor vehicle while his licence was suspended, contrary to s. 259(4) of the Criminal Code - The Newfoundland Provincial Court stated that the elements of the offence were that the accused operated the motor vehicle while the licence was suspended and that the accused had knowledge of the suspension - Actual knowledge of the suspension was necessary because it was a criminal offence which required a guilty mind or mens rea - See paragraphs 5 to 12.

Criminal Law - Topic 1390

Offences against person and reputation - Motor vehicles - Driving while disqualified - Elements of offence - [See Criminal Law - Topic 1389 above].

Criminal Law - Topic 1390

Offences against person and reputation - Motor vehicles - Driving while disqualified - Elements of offence - Notice of disqualification or suspension - Requirement of - The accused was charged with driving while his licence was suspended - Evidence that accused was informed of suspension at time of conviction for impaired driving - However, accused was not given copy of the suspension order - Section 260(1) of the Criminal Code stated that the accused must be informed of the suspension and given a copy of the order - The Newfoundland Provincial Court dismissed the charge - The court found that section 260(1) was a mandatory provision and that a conviction required compliance with all its provisions - See paragraphs 21 to 24.

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - Accused was observed driving after licence was suspended - Evidence that accused switched position with passenger, while vehicle was in motion, after offence was detected - Accused was charged with driving while licence suspended - Knowledge of suspension was element of offence - Accused claimed he was not informed of the suspension and only received written notice of the suspension after the incident - The Newfoundland Provincial Court observed that the court could infer knowledge of the suspension from the accused's conduct - See paragraph 18.

Cases Noticed:

R. v. City of Sault Ste. Marie, [1987] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353, refd to. [para. 11].

R. v. Rees, [1956] S.C.R. 640, refd to. [para. 12].

R. v. Docherty (1989), 101 N.R. 161 (S.C.C.), refd to. [para. 12].

R. v. Bagshaw (1971), 4 C.C.C.(2d) 303; 21 D.L.R.(3d) 202 (S.C.C.), refd to. [para. 17].

R. v. Cole (1988), 75 Nfld. & P.E.I.R. 301; 234 A.P.R. 301; 13 M.V.R. 141 (Nfld. S.C.T.D.), refd to. [para. 21].

R. v. Bara (1981), 58 C.C.C.(2d) 243 (B.C.C.A.), refd to. [para. 22].

R. v. Leguilloux (1980), 51 C.C.C.(2d) 99 (B.C.C.A.), refd to. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 242(4) [paras. 1, 6].

Criminal Code, R.S.C. 1984, c. C-46, sect. 259(1), sect. 259(2) [para. 20]; sect. 259(4) [paras. 1, 6, 16, 21]; sect. 260(1) [paras. 21, 24]; sect. 260(4) [para. 9]; sect. 500(2) [para. 16]; sect. 737(4) [para. 22].

Counsel:

Cpl. Snook, for the Crown;

James Hughes, for the accused.

This matter was heard on November 29, 1989, by Hyslop, P.C.J., of the Newfoundland Provincial Court, who delivered the following oral judgment on the same date.

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