IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The accused, Wei Tse Tsai, has been charged with operating a motor vehicle while prohibited contrary to section 95(1) of the Motor Vehicle Act. Mr. Tsai does not dispute that he was operating a motor vehicle at the material time but says that he did not know that he was prohibited as another driving prohibition, which was in force for one year, had expired three days earlier.

[2]         The triable issue is whether the Crown has proven Mr. Tsai’s mens rea beyond a reasonable doubt - namely that Mr. Tsai knew that he was prohibited from driving at the material time. Mr. Tsai agreed that the defence of officially induced error was not applicable.

[3]         Mr. Tsai is 31 years old and from Taiwan. He moved to Canada in 2007 and stayed for about four and a half years before returning to Taiwan. Then he returned to Canada in 2017 and has lived here since. At present, he is a permanent resident. Mr. Tsai has been married for nine years and has a five year old daughter. He owns a restaurant and his wife works in a beauty shop. Mr. Tsai gave his evidence through an interpreter.

[4]         At the time of the subject offence, Mr. Tsai was prohibited from driving pursuant to section 251 of the Motor Vehicle Act which states:

[5]         Det. Martinez was the New Westminster Police Department member who served Mr. Tsai with the subject driving prohibition on February 12, 2018. At the time, Det. Martinez was a constable and went by her maiden name, Bitkova.

[6]         Cst. Zhou was the officer who stopped Mr. Tsai on May 17, 2020 near the intersection of Brown Road and Sweet Avenue in Richmond resulting in this charge.

[7]         Cst. Zhou testified that he saw the subject vehicle going into a parkade and stopped it after finding that the licence plate did not match what appeared on the police system. As the vehicle was stopped blocking the entrance to the parkade, Cst. Zhou had the driver, Mr. Tsai, move it to the roadside. Mr. Tsai was alone and Cst. Zhou asked for his licence. Mr. Tsai responded that he did not have a licence on him and produced a BCID card instead. Cst. Zhou returned to his police car with the BCID, ran further checks, and learned that Mr. Tsai was prohibited from driving. When Cst. Zhou told Mr. Tsai that he was prohibited, Mr. Tsai said that he had gone to ICBC and ICBC told him that he could drive. Cst. Zhou returned to his police car, called ICBC, and was advised that according to its system, Mr. Tsai was prohibited from driving until 2068.

[8]         Cst. Zhou testified that he placed Mr. Tsai under arrest. Mr. Tsai was escorted to the back of the police car to wait while Cst. Zhou prepared paper work, called a tow truck to tow the vehicle as there was a mandatory seven day impoundment, and took pictures of Mr. Tsai and his car. Mr. Tsai was released on a promise to appear.

[9]         On cross examination, Cst. Zhou confirmed his recollection that Mr. Tsai had said that he had another driving prohibition which had expired three days prior. He admitted that he switched to Mandarin from English in order to give Mr. Tsai a better understanding and explanation of what was happening. He agreed that he thought Mr. Tsai could converse to some extent in English but in order to satisfy himself that Mr. Tsai understood, he switched to Mandarin. I found Cst. Zhou to be credible, forthright, and unshaken in cross-examination. I accept Cst. Zhou’s evidence in full and without hesitation.

[10]      Mr. Tsai testified that his wife owned the subject vehicle which was an exotic orange and black sports car. He said that a one year driving prohibition expired on May 14, 2020 and he had gone to ICBC prior to the expiration to check on the status of his licence. He said that ICBC advised that he could drive after May 14, 2020 when the one year prohibition ended.

[11]      Mr. Tsai testified that on May 17, 2020, he was moving the car from a parking lot next to the parkade of his home and that the distance was very short - about the length of the courtroom. When asked if in his mind, he was not prohibited from driving at the time, he said “It is not what I think. It is what I found out.”

[12]      Date, jurisdiction, and identification were not in issue.

[13]      Section 95(1) of the Motor Vehicle Act states:

[14]      Section 82(4) refers to the Notice of Driving Prohibition and Certificate of Service and notes that a certified copy is evidence of the record and of the facts in the record.

[15]      In R. v. Webster, 2016 BCPC 326 at paragraph 64, the court confirmed that the accused’s knowledge about being prohibited from driving is imputed when the Notice of Driving Prohibition and the Certificate of the Superintendent are entered at trial as exhibits. The presumption can be rebutted by any evidence to the contrary although evidence that is disbelieved is not evidence to the contrary.

[16]      Counsel provided several cases with respect to the consideration of mens rea in these circumstances and I have summarized those cases which are most germane to this trial.

[17]      In R. v. Tantrum, 2005 BCPC 427 (CanLII), 2005 BCPC 0427, the accused was charged with driving while prohibited. The prohibition had been issued in February, 2005 and the accused was found driving on April 10, 2005. The accused said that he did not understand that the notice, which was on his person at the time of the arrest, prohibited him from driving. The court confirmed that this offence was a full mens rea offence without a reverse onus. The court reviewed the law on wilful blindness and found that the accused was wilfully blind to his driving prohibition.

[18]      In R. v. Biason, 2009 BCPC 162 (CanLII), 2009 BCPC 0162, the accused was charged with driving while prohibited. The prohibition was issued on February 7, 2008 and the offence occurred on May 20, 2008. The accused argued in part that he did not understand the prohibition. At paragraph 9, the court stated:

[19]      In R. v. Billard, 2017 BCPC 256, the accused was charged with driving while prohibited. The accused had been prohibited in Saskatchewan and then applied for and was granted a licence in British Columbia. The accused argued that at the time of the offence, he thought he was not prohibited as he was able to obtain a valid licence. The court found that the mens rea had not been proven because the accused believed that he could drive lawfully as he was issued a driver’s licence.

[20]      In R. v. Colegrave, 2018 BCPC 69, the accused was charged under s. 259(4) of the Criminal Code for driving while prohibited. The prohibition had been issued six years earlier out of Alberta but was effective across Canada and was signed by the accused. About four years into the prohibition, the accused moved to British Columbia and applied for and was issued a licence. The accused argued that he did not know that he was prohibited because he had been issued a new driver’s licence two months before the date of the alleged offence. The court found that driving while prohibited was a full mens rea offence and that the mens rea had not been proven because of mistake of fact and the Crown had not proven either actual knowledge or wilful blindness.

[21]      In R. v. Prentice (10 June 2019), North Vancouver 66355-1 (BCPC), the accused was charged with driving while prohibited pursuant to section 95(1) of the Motor Vehicle Act. The accused had been issued a driving prohibition on July 24, 2018 and was arrested for driving while prohibited on July 26, 2018. The accused said that initially, he believed that he had been prohibited for 24 hours and then, could pick up his licence and would need to speak to ICBC. On July 25, 2018, he went to ICBC and was advised that a letter would be sent prohibiting him from driving for 6 months and was referred to the Motor Vehicle Branch. He then went to the Motor Vehicle Branch and was told that he had three weeks to dispute the prohibition that was coming into effect. On that basis, the accused believed that he was permitted to drive as he had three weeks to dispute the prohibition. The court explained that a mistake of fact is a mistaken belief that certain facts exist whereas a mistake of law relates to the interpretation of the law. The court found that the issue was whether the accused was mistaken in fact with his belief that he was not prohibited based on conversations with the issuing officer, ICBC, and the Motor Vehicle Branch. The court applied the test from R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, believed the accused, and acquitted him.

[22]      With respect to the W.D. test, counsel relied on R. v. Webster, 2016 BCPC 326 which set out a further consideration to the traditional analysis:

[23]      In summary, the analysis I must make in this matter is as follows:

[24]      The Crown filed into evidence a certified true copy of the February 12, 2018 Notice of Driving Prohibition and Certificate of Service pursuant to section 82(4) of the Motor Vehicle Act and a Certificate of the Superintendent dated May 19, 2020 pursuant to section 95(4) of the Motor Vehicle Act. The Certificate of the Superintendent confirmed that Mr. Tsai was prohibited from driving the entire day of May 17, 2020. As such, I can and do presume that Mr. Tsai was issued an indefinite driving prohibition on February 12, 2018 pursuant to section 251 of the Motor Vehicle Act and that Mr. Tsai had knowledge that the prohibition was in effect at the time of the subject offence.

[25]      I will now consider if this presumption can be rebutted by Mr. Tsai’s mistake of fact defence that he thought his driving prohibition had ended. I begin by setting out the pertinent evidence of Det. Martinez and Mr. Tsai with respect to the issuance of the February 12, 2018 driving prohibition.

[26]      Det. Martinez served Mr. Tsai with an indefinite driving prohibition on February 12, 2018. She testified that serving this prohibition for driving without a licence was the ninth time out of ten that she had served such a prohibition in her eight year career. Det. Martinez testified that in the early morning of February 12, 2018, she received notice that a white BMW M4 had failed to stop for emergency lights and failed to signal right as it turned and sped away. Subsequently, Det. Martinez observed the BMW and conducted a traffic stop. Mr. Tsai was driving the BMW and had a passenger with him. Det. Martinez asked Mr. Tsai for his licence and his name, date of birth, and address. Mr. Tsai said that he did not have his licence on him and provided a BC Services Card instead. Det. Martinez reviewed the information and the BC Services Card and was satisfied that Mr. Tsai was who he said he was. Det. Martinez relayed that information to her dispatch and was told that Mr. Tsai had an invalid learner’s licence. Consequently, Det. Martinez advised Mr. Tsai that he had an invalid learner’s licence, that he would be prohibited from driving immediately, and that his vehicle would be impounded for seven days.

[27]      Det. Martinez reviewed the Notice of Driving Prohibition and Certificate of Service and confirmed that it was her handwriting and that she had served this document on Mr. Tsai. Det. Martinez testified that with respect to the Notice of Driving Prohibition, she would have read verbatim the paragraph under “IMMEDIATE EFFECT OF PROHIBITION” to Mr. Tsai and she would have told Mr. Tsai the effective time of the driving prohibition and explained what that meant. She would have drawn Mr. Tsai’s attention to the “RIGHT OF REVIEW” and “REVIEW OF INSTRUCTIONS” sections but would have summarized them and told him to contact the superintendent or ICBC to obtain a valid licence. She also would have warned Mr. Tsai that if he was found driving while prohibited, he would be arrested and would have asked Mr. Tsai if he had any questions about the prohibition. Det. Martinez confirmed that the entire exchange was conducted in English and it did not appear that Mr. Tsai had any difficulty understanding English. She recalled that he had an accent and as English is also her second language, she acted with more consideration to ensure that Mr. Tsai understood and she was satisfied that he did.

[28]      On cross-examination, Det. Martinez admitted that her specific recollections came after conversations with Crown counsel and reviewing the file. She confirmed that her notes said “documents explained in detail…stated understood”. She denied speaking to Mr. Tsai in an aggressive tone or that he asked for an interpreter and she told him that it was too late to get one.

[29]      Mr. Tsai testified that when Det. Martinez provided him with the driving prohibition, he did not understand what was said to him and expressed his concerns about language and understanding to her. He asked for a Chinese speaking officer and Det. Martinez said that it was late and she was not able to find anyone. He described Det. Martinez as impatient with a poor attitude and said that she spoke quickly and not clearly. He said that he was able to understand certain terms like ICBC and “go check with ICBC” but did not understand other things. Specifically, he said that he did not understand that he had been prohibited from driving indefinitely.

[30]      In cross-examination, Mr. Tsai raised the existence of an international driver’s licence that he obtained in 2017 and which was valid for two years. He said that he obtained this licence in order to drive in Vancouver and that he had checked with an office in Taiwan and with ICBC and was told it was suitable for two years in Vancouver. The international licence was fine until 2018 when Mr. Tsai was told several times in English conversations with police that he could not use it. He said that an officer seized his international licence in 2019.

[31]      On cross-examination, Mr. Tsai testified that he told Det. Martinez that he had just come back from Taiwan and had an international driver’s licence which she refused to look at and said that it was not recognized. Instead, Det. Martinez took his insurance papers and BCID which he provided to her. He denied that Det. Martinez asked him for his name or birthdate but asked only if he lived in Richmond. He said that Det. Martinez told him to check with ICBC about his driver’s licence and BCDL status. He said that Det. Martinez handed him a slip and told him to check with ICBC and that the car would be towed and he could pick it up in seven days. Mr. Tsai said that Det. Martinez read things from the slip that he did not understand but he did understand the importance of going to ICBC to find out things from them. He said that he asked for a translator as he could not understand but was told that it was hard to find one and to just to go to ICBC and find out himself. He said that he heard the word prohibited a few times and did not understand it. When asked about his car being towed, Mr. Tsai said that he was not upset as Det. Martinez was just doing her job.

[32]      Mr. Tsai testified that he went to ICBC as instructed but could not give the date, whom he spoke with, or that person’s position but said that he was told in English that his international licence was fine and to check with the police about the driving prohibition. But, Mr. Tsai admitted that he did not check with the police and left it to his lawyer who, I note, is not his present counsel.

[33]      With respect to the subject offence, Mr. Tsai testified that he attended at ICBC on May 13, 2020 and was advised that his one year driving prohibition would expire the next day. He was unable to provide evidence about whom he spoke to, that person’s position, or if he inquired about the indefinite prohibition from February 12, 2018.

[34]      Mr. Tsai admitted that he did not have a driver’s licence at the time of the offence and went to ICBC on June 3, 2020 to take an exam for his learner’s licence. He did not pass the written test and returned on June 11, 2020 and passed. Subsequently, he failed a road test in November, 2020 and passed on December 11, 2020. At that time, he was issued a BCDL, which was entered into evidence, and he has been driving since.

[35]      The defence argued that Mr. Tsai has raised a reasonable doubt because these circumstances were confusing for the police and as such, it is not surprising that they were confusing for Mr. Tsai. In addition, the defence argued that Det. Martinez did not have a specific recall of the events of that night but testified about her practice when issuing driving prohibitions. While I accept this point, I must consider Det. Martinez’s evidence that she communicated the nature and effect of the driving prohibition to Mr. Tsai.

[36]      In this regard, I have considered the credibility and reliability of Det. Martinez and Mr. Tsai’s evidence and prefer strongly the evidence of Det. Martinez. I found Det. Martinez’s evidence to be truthful and accurate as she had no inconsistencies in her testimony, was not shaken on cross-examination, and was objective, reliable, and believable.

[37]      With respect to Mr. Tsai, he was inconsistent and evasive in his evidence as demonstrated in the following examples:

[38]      I also have grave concerns with the cogency of Mr. Tsai’s evidence:

[39]      The defence also argued that despite Det. Martinez’s assertion that language was not an issue, even Cst. Zhou had concerns about Mr. Tsai’s English and so, switched to speaking Mandarin. The Crown argued that there was no inconsistency in the language assessment by the officers as both interactions were subjective.

[40]      While Mr. Tsai used an interpreter, I found that he possessed, at minimum, a basic grasp of English to communicate. He was able to understand the court’s instructions to sit or move into the witness box. Further, when questioned about his driving record, Mr. Tsai was able to refer to and read the documents which were in English with no apparent difficulty. That said, I have considered carefully the point raised by the defence that Cst. Zhou had language concerns. It was not asked at what point Cst. Zhou switched to Mandarin but his evidence was that in addition to confirming Mr. Tsai’s identification, he eventually arrested Mr. Tsai and provided him with a reading of his rights. In my view, this difference is significant as it was imperative that Cst. Zhou ensure that Mr. Tsai understood his Charter rights. Det. Martinez’s interaction with Mr. Tsai was to issue the driving prohibition and explain that he could no longer drive. Det. Martinez’s conversation could be accomplished in basic English which Mr. Tsai was very capable of understanding.

[41]      Further, I am puzzled by and do not believe Mr. Tsai’s evidence that he did not understand the driving prohibition issued by Det. Martinez as by his own evidence, he was capable of discussing other and more complicated matters in English. Mr. Tsai testified that he spoke to representatives at ICBC on numerous occasions including to confirm the validity of his international licence and on May 13, 2020, spoke to police officers several times about using his international licence, understood Det. Martinez’s request to produce insurance papers and identification, demonstrated a good understanding of the one year driving prohibition that was issued on May 13, 2019, and passed the written learner‘s exam at ICBC.

[42]      With respect to his credibility, Crown entered Mr. Tsai’s JUSTIN Conviction List which showed a criminal record including three convictions of fraud over $5,000, two convictions of personation with intent to gain advantage, and one conviction of dealing with an identity document without lawful excuse.

[43]      In R. v. Sherwin, 2012 BCSC 1808, the court noted at paragraph 68:

[44]      Based on the foregoing and with consideration of his criminal record, I find that Mr. Tsai was not a credible witness. I do not believe Mr. Tsai’s evidence and am not left in reasonable doubt by it. But, I must still consider the remaining steps from the W.D. test.

[45]      For the reasons set out above, I accept and believe the evidence of Cst. Zhou and Det. Martinez. I find that the presumption of Mr. Tsai’s mens rea has been proven and not rebutted. Moreover, I find that on the basis of the evidence that I accept, I am convinced beyond a reasonable doubt that Mr. Tsai had actual knowledge of the indefinite driving prohibition and thus, the Crown has met its burden of proving Mr. Tsai’s mens rea.

[46]      In the alternative, I find that Mr. Tsai was wilfully blind as he knew that the February 12, 2018 incident and the driving prohibition were serious. However, despite his testimony that he did not understand the prohibition, Mr. Tsai did not have the prohibition translated and took no steps to understand the document for more than two years. Most importantly, Mr. Tsai chose not to ask ICBC about this indefinite driving prohibition when he attended at ICBC on May 13, 2020. Mr. Tsai was aware of the need to make an inquiry about the February 12, 2018 driving prohibition but declined to make the inquiry because he did not wish to know the truth.

[47]      In summary, after considering the test from R. v. W.D., I do not believe the evidence of Mr. Tsai, am not left in reasonable doubt by it, am able to decide whom to believe and believe the evidence of Cst. Zhou and Det. Martinez, and am convinced beyond a reasonable doubt by the evidence of Mr. Tsai’s guilt.

[48]      I find Mr. Tsai guilty of operating a motor vehicle while prohibited contrary to section 95(1) of the Motor Vehicle Act.