R. v. Plummer, 2006 CanLII 38165 (ON CA)

Her Majesty the Queen v. Plummer [Indexed as: R. v. Plummer]

83 O.R. (3d) 528

Court of Appeal for Ontario,

Rosenberg, MacPherson and Gillese JJ.A.

November 14, 2006

Criminal law -- Motor vehicles -- Police officer not having power under s. 217 of Highway Traffic Act to arrest motorist without warrant for refusing to produce driver's licence -- Power to arrest without warrant arising only when officer has specifically requested alternative identification under s. 33(3) of Act and motorist has refused to comply -- Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 33(1), 33(3), 217.

Criminal law -- Police powers -- Power to arrest under Highway Traffic Act ("HTA") -- Accused convicted of resisting arrest following a traffic stop during which he refused to provide identification -- Legality of arrest -- Breach of requirement that driver produce driver's licence per s. 33(1) of HTA not giving rise to power to arrest without warrant -- May arrest without warrant under s. 217 of HTA only if driver refuses to produce alternative identification upon separate request following refusal or inability to produce driver's licence -- Arrest unlawful as arresting officer didn't make separate request for alternative identification per s. 33(3) -- Officer not in execution of duty during unlawful arrest and accused not guilty of included offence of assault as entitled to use force to resist unlawful arrest -- Accused's appeal from conviction allowed -- Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 33(1), 33(3), 217.

When he refused to comply with a police officer's repeated demands to produce his driver's licence, the accused was arrested under the Highway Traffic Act ("HTA") for refusing to produce identification. A scuffle ensued, and the accused was charged with assaulting a peace officer in the execution of his duty and assault with intent to resist arrest. The trial judge convicted the accused of the latter offence and stayed the other charge. The summary conviction appeal court judge rejected the accused's argument that the HTA arrest was unlawful and affirmed the conviction. The accused appealed.

Held, the appeal should be allowed.

Per Rosenberg J.A. (Gillese J.A. concurring): Although s. 33(1) of the HTA requires all drivers to carry and produce for inspection their licence upon demand, s. 217 of the Act does not authorize arrest without warrant for breaches of s. 33(1). However, if a separate request is made for alternative identification pursuant to s. 33(3) of the HTA and a driver refuses to comply, s. 217 authorizes arrest without warrant. Here, no separate request was made for alternative identification was made and it is irrelevant that it is unlikely that the accused would have complied with that request, had it been made. The arrest without warrant was unlawful. As the officer was not in the lawful execution of duty at the time of the arrest, the accused is not guilty of assault with intent to resist arrest. The accused is also not guilty of the included offence of assault as he was entitled to resist an unlawful arrest.

Per MacPherson J.A. (dissenting): Rosenberg J.A.'s interpretation of s. 33 of the HTA is agreed with. However, in applying the law to the facts of this case, he wrongly rejected clear findings of fact by both the trial judge and the summary conviction appeal judge. The trial judge found that the accused responded to the [page529] officer's reasonable requests with intimidation and a level (albeit a low level) of violence. The summary conviction appeal judge correctly held that police officers should not be required to engage in a rigid, formulaic demand process in the unpredictable and dynamic environment that constitutes most traffic stops, and found that the accused's refusal to comply when asked to produce his licence, proof of insurance and ownership amounted to a refusal to produce any identification, as required by s. 33(3). As was found by the summary conviction appeal court judge, the accused's statements and conduct made it clear that he refused to provide any form of identification to the officer. There was ample evidence to support that finding of fact. The accused provided no excuse for failing to produce his licence, which he had with him. It was he who committed the only assault that day.

APPEAL from the judgment of Cumming J., 2004 12232 (ON SC), [2004] O.J. No. 929, [2004] O.T.C. 239 (S.C.J.), sitting as a summary conviction appeal judge dismissing an appeal from a conviction by Harris J. of the Ontario Court of Justice, dated October 2, 2002, for assault with the intent to resist arrest.

Cases referred to Harris v. Yellow Cab Ltd., 1926 387 (ON CA), [1926] O.J. No. 4, 59 O.L.R. 8, [1926] 3 D.L.R. 254 (C.A.); Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, [2005] S.C.J. No. 31, 258 D.L.R. (4th) 193, 339 N.R. 1, 135 C.R.R. (2d) 1, 2005 SCC 51, 50 Imm. L.R.(3d) 1; R. v. Blake, [2003] O.J. No. 818, 35 M.V.R. (4th) 151, 56 W.C.B. (2d) 617 (S.C.J.); R. v. Bugaeva, [1999] O.J. No. 2738, 44 M.V.R. (3d) 187, 43 W.C.B. (2d) 181 (C.J.); R. v. Daoust, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, 235 D.L.R. (4th) 216, 316 N.R. 203, 180 C.C.C. (3d) 449, 2004 SCC 6, 18 C.R. (6th) 57; R. v. Delong, 1989 7164 (ON CA), [1989] O.J. No. 206, 31 O.A.C. 339, 47 C.C.C. (3d) 402, 69 C.R. (3d) 147 (C.A.); R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128, [1996] S.C.J. No. 121, 147 Nfld. & P.E.I.R. 1, 142 D.L.R. (4th) 50, 205 N.R. 161, 459 A.P.R. 1, 111 C.C.C. (3d) 353, 3 C.R. (5th) 187; R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v. Malik, [2001] O.J. No. 4547 (C.J.); R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, 21 O.R. (3d) 797n, 178 N.R. 161, 95 C.C.C. (3d) 481, 36 C.R. (4th) 171; R. v. Russell, [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53, 203 D.L.R. (4th) 1, 274 N.R. 247, 157 C.C.C. (3d) 1, 44 C.R. (5th) 231, 2001 SCC 53; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 88 B.C.L.R. (3d) 1, 194 D.L.R. (4th) 1, [2001] 6 W.W.R. 1, 86 C.R.R. (2d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, [2001] SCC 2; R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, 37 O.A.C. 161, 105 N.R. 81, 47 C.R.R. 210, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, 206 Nfld. & P.E.I.R. 304, 203 D.L.R. (4th) 513, 275 N.R. 201, 618 A.P.R. 304, 157 C.C.C. (3d) 353, 45 C.R. (5th) 1, 2001 SCC 56; R. v. Waechter, [2006] O.J. No. 1466, 2006 ONCJ 128, 70 W.C.B. (2d) 14 (C.J.) Statutes considered Highway Traffic Act, R.S.O. 1960, c. 172, ss. 14, 56(2), (3) Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 7(5), 31, 33, 48, 214(1), 217(2), (3) Highway Traffic Amendment Act (Novice Drivers), 1993, S.O. 1993, c. 40 Criminal Code, R.S.C. 1985, c. C-46, ss. 34(1), 121, 254(2) Provincial Offences Act, R.S.O. 1990, c. P.33, s. 145 Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 3(1) Rules and regulations referred to Highway Traffic Act, R.R.O. 1990, Reg. 613, s. 7(2) Authorities referred to Driedger, E.A., Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) McRuer, Chief Justice, Royal Commission Inquiry into Civil Rights: Report Number One, vol. 2 (Toronto: Queen's Printer, 1968) [page530]

David E. Harris, for appellant. Jennifer Woollcombe, for respondent.

1ROSENBERG J.A. (GILLESE J.A. concurring): -- This appeal principally concerns the power of arrest under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act"). The appellant was charged with assaulting a peace officer in the execution of his duty and assault with intent to resist arrest. Both charges turned on the legality of the arrest. If an arrest is unlawful, the officer is not in the execution of his or her duty and the citizen is entitled to resist the arrest.

2In this case, the police officer purported to arrest the appellant because he failed to identify himself as required by the Act. The Act, however, carefully circumscribes the arrest power. In particular, the power of arrest does not arise because a motorist refuses to produce his or her licence. Rather, where the person refuses to produce the licence, the officer is entitled to arrest without warrant under s. 217 of the Act only where the person has also refused to give reasonable identification "when requested by a police officer": Highway Traffic Act, s. 33(3). In my view, the circumstances authorizing an arrest did not arise in this case and the arrest was not legal. It follows that this appeal should be allowed and the charges against the appellant dismissed.

The Facts

3The appellant is a taxicab driver. A uniformed police officer, Constable Allcroft, stopped the appellant on a busy downtown Toronto street around noon on April 30, 2002 because the appellant did not appear to be wearing a seat belt. ¹ According to the officer, the appellant left his car and approached him. The exact sequence of events is important and so I set out his testimony verbatim. Constable Allcroft gave the same version in direct and cross-examination and the trial judge accepted his version of events: [page531]

Q. What did you say to Mr. Plummer?

A. At this time, I requested that he provide me with his driver's licence, ownership and insurance for the vehicle.

Q. And what did he say or do in response to that?

A. He stated to me"Why, what'd you stop me for?"

Q. Did you make a reply?

A. Yes, I did. I advised him that he was not wearing his seatbelt and I asked again to see his driver's licence, ownership and insurance.

Q. And what did he say, if anything?

A. The male stated"What's your fucking problem, why are [you] pulling me over?"

Q. What did you say then?

A. I then said"Sir, if you don't provide your driver's licence, ownership and insurance, I may have to arrest you for failing to identify."

Q. Did Mr. Plummer produce any documents at that time?

A. Well at this time he stated"Fuck you." He continued swearing at me as he walked back to the driver's door of his vehicle.

Q. What happened then?

A. He leaned into the vehicle and he came back out holding a tape recorder. At this time he pushed a button on the recorder and stated"Now what are you going to do? Fuck You."

Q. What did you do?

A. At this time I advised him that he was under arrest for failing to identify.

Q. And officer, just so we're clear, what was the basis for arresting Mr. Plummer at that point?

A. Under the Highway Traffic Act it's an offence, an arrestable offence, to fail to identify to a police officer who's investigating an offence under the Highway Traffic Act.

4Thereafter, a scuffle ensued as the appellant attempted to resist the arrest. The officer was eventually able to subdue the appellant with the assistance of another citizen.

The Trial Judge's Reasons

5Before the trial judge, M. Harris J., the only issue was credibility. The appellant's version of events was different from that of the officer. He denied that he refused to produce his licence. His counsel, not Mr. Harris, did not argue that even on the officer's version of events the arrest was unlawful. The trial judge [page532] rejected the appellant's evidence and accepted the evidence of the officer and the citizens who came to the officer's assistance. He convicted the appellant of the charge of resisting arrest and stayed the other charge in accordance with the doctrine in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76.

The Reasons of the Summary Conviction Appeal Court Judge

6On appeal to the summary conviction appeal court, the appellant argued that the trial judge had not properly dealt with issues of credibility. The appeal judge, Cumming J., dismissed that ground of appeal. The appellant also argued that, accepting the officer's evidence, the arrest was not valid because the circumstances described in s. 33(3) of the Act did not arise. In the appeal court, Crown counsel argued that the appellant should not be allowed to raise this issue for the first time on appeal. The appeal judge resolved that issue against the Crown on the basis that the onus was on the Crown to prove all essential elements of the offence. The legality of the arrest was an essential element of both charges.

7However, the appeal judge held that the arrest was valid. He agreed that "a single demand for identification, without more" cannot trigger the arrest power through the combined operation of ss. 33(3) and 217(2) of the Act. But, a "demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/he fails to identify herself/himself will be sufficient to trigger the arrest power". He held that it was "clear that the Appellant, by his words and his conduct, would not identify himself", despite a positive duty imposed by s. 33 to do so.

8The appeal court judge went on to state that even if the arrest were unlawful, the appellant should not have resorted to a self-help remedy of resisting the arrest. Rather the appellant should have complied and sought his remedy in the criminal or civil courts or through the police complaints bureau.

The Appeal to This Court

9The appellant now appeals to this court and makes the same two arguments that he made to the summary conviction appeal court. Since I have concluded that the arrest was not valid, I need not determine the other ground of appeal concerning the manner in which the trial judge resolved the credibility issues. In this court, Crown counsel does not challenge the right of the appellant to pursue the ground of appeal concerning the lawfulness of the arrest.

Analysis

10Resolution of this case depends first on the proper interpretation of the applicable provisions of the Act. I will then apply [page533] the facts of this case to that interpretation. It was not contended that any other statutory or common law arrest power was implicated on the facts of this case.

11As is well known, the Supreme Court of Canada has adopted the purposive or modern approach to statutory interpretation as described in Driedger's Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

12This principle of statutory interpretation applies in civil and criminal cases. See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, at para. 33 and R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53, at para. 32. However, if, after applying the purposive approach, genuine ambiguities remain, the court will adopt that interpretation favouring the liberty of the subject. See R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, at para. 29.

13The process of statutory interpretation favoured by the Supreme Court of Canada requires a court to consider the grammatical and ordinary meaning of the provisions in question, the legislative history and the intention of Parliament or the legislature, the scheme of the Act, and the legislative context. See R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, at paras. 28-52.

Grammatical and ordinary meaning

14The exercise of statutory interpretation begins with an examination of the grammatical and ordinary meaning of the provisions in question. The provisions at issue in this case are found principally in ss. 33 and 217 of the Act. At this point, I will deal only with s. 33. The current version of this section came into force in 1994 and is as follows:

33(1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(2) Every accompanying driver, as defined under section 57.1, shall carry his or her licence and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this [page534] subsection, the correct name and address of the person shall be deemed to be reasonable identification.

15Section 33(1) imposes two duties on drivers. ² They must carry their licences with them while in charge of a motor vehicle and surrender their licence for reasonable inspection upon the demand of a police officer or an officer appointed for carrying out the provisions of the Act. The penalty for failing to comply with either duty is found in s. 214(1) of the Act:

214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.

16It is s. 33(3) that is particularly in issue in this case. Under s. 33(3), if a driver is unable or refuses to surrender his or her licence, he or she may be required to provide some other form of reasonable identification. The subsection deems giving one's correct name and address as reasonable identification. The legislative history discussed below indicates that this latter clause was intended to prevent an officer from making unreasonable demands. For convenience, I will refer to the requirement to identify as the alternative identification requirement.

17The point of contention in this case turns on the subordinate or dependent clause "when requested by a police officer or officer appointed for carrying out the provisions of this Act". The proposition set out in the main clause in s. 33(3) is the requirement that a person give reasonable identification. The dependent clause instructs that this obligation arises when requested by a police officer or officer appointed for carrying out the provisions of the Act. There are three possible readings of s. 33(3). One, the obligation arises when an officer demands that a driver produce his or her licence on the theory that such a demand implies an obligation to provide identification. Two, the obligation to provide alternative identification arises only when an officer makes a separate and specific demand for alternative identification. Three, the obligation to provide alternative identification arises where an officer repeats the demand for a driver's licence. The third interpretation is the one that seems to have been adopted by the appeal judge.

18Several elements of s. 33 suggest that the second meaning is the ordinary or grammatical reading. First, the drafter has used two different terms: "demand" in s. 33(1) in reference to production of the licence and "request" in s. 33(3) in reference to [page535] alternative identification. This suggests that an officer must do something other than simply make or repeat the s. 33(1) demand for surrender of a licence for inspection to trigger a possible contravention of s. 33(3). I appreciate that a motorist will perceive little practical difference between a demand from a police officer as opposed to a request. He or she will feel the same compulsion to comply. My point here is that the drafter intended to distinguish between the s. 33(1) action and the s. 33(3) action because two different words are used.

19Second, an interpretation of the provision that does not require a separate request for alternative identification would offend the rule of interpretation that presumes that the legislature avoids superfluous or meaningless words or phrases. See Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, [2005] S.C.J. No. 31. If the officer simply had to make the s. 33(1) demand to trigger the obligation for alternative identification, the dependent clause would be redundant. The drafter could simply have worded s. 33(3) as follows:

Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.

20Third, a requirement of alternative identification is not implicit in the demand to produce a licence. An officer may have reasons for requiring a person to produce his or her licence that are unconnected with its identification function. For example, an officer may be familiar with a driver and may be using the demand for the purpose of determining whether the person's licence is current. Alternatively, an officer, although familiar with a driver's identity, may use the demand as a means of checking on the sobriety of a driver, as permitted by s. 48 of the Act. If the driver fumbles for the licence or seems disoriented by the question, the officer may acquire a reasonable suspicion sufficient to trigger an approved screening device demand under s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46.

21The one element of s. 33(3) tending to support an interpretation that an officer is not required to make a second specific request for alternative identification is the presence of the commas before and after the subordinate clause. The use of the commas identifies this clause as a non-restrictive relative clause, that is, the clause could be omitted without essential loss of meaning. That said, I would not attach much weight to the comma usage because, as the legislative history shows, even [page536] when the clause clearly was a restrictive relative clause, the drafter separated the clause from the rest of the sentence by commas. I will now turn to that legislative history.

Legislative history and intention of the legislature

22As I have indicated, the present version of the sections of the Act at issue in this case came into force on June 6, 1994. The predecessor to s. 33 was s. 14 of the Highway Traffic Act, R.S.O. 1960, c. 172, which provided as follows:

14(1) Every operator of a motor vehicle shall carry his licence with him at all times while he is in charge of a motor vehicle and shall produce it when demanded by a constable or by an officer appointed for carrying out the provisions of this Act.

(2) Every person who contravenes any of the provisions of subsection 1 is liable, for the first offence to a fine of not more than $5; for the second offence to a fine of not less than $5 and not more than $10; and for any subsequent offence to a fine of not less than $10 and not more than $25, and in addition his licence or permit may be suspended for a period of not more than thirty days.

23There are two significant aspects of the 1960 legislation. First, a constable or officer appointed for carrying out the provisions of the Act could only demand production of a motorist's licence. There was no power to demand some other type of identification. Second, the penalty for failing to produce a licence was the monetary fine or licence suspension set out in s. 14(2). The warrantless arrest power in (then) ss. 156(2), (3) of the 1960 Act did not permit arrest for failing to comply with s. 14(1):

156(2) Every constable or officer appointed for carrying out the provisions of this Act, who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsections 1 and 2 of section 7; subsections 1 and 3 of section 8, subsection 1 of section 9; subsection 1 of section 10; subsection 2 or 3 of section 25; section 26, 60, 91 or 100 has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed such contravention, may arrest such person without warrant whether such person is guilty or not.

(3) Every person may arrest without warrant any person whom he finds committing any such contravention.

24In 1969, the government introduced amendments to the Act. It appears that these amendments were motivated, in part, by the recommendations of Chief Justice McRuer in the Royal Commission Inquiry into Civil Rights: Report Number One, vol. 2 (Toronto: Queen's Printer, 1968). Among other things, he called attention to the random and broad arrest powers in the Act and to the fact that those arrest powers could be exercised, not only by constables, but by officers appointed by the Minister for carrying [page537] out the provisions of the Act. ³ See pp. 728-31 of Report Number One, vol. 2. McRuer C.J.H.C. was of the view that arrest without warrant should be restricted to cases where the driver "without showing reasonable cause, does not properly identify himself and the owner of the vehicle, and those cases in which the driver does not appear to have any legal right to have the vehicle on the highway" (p. 731).

25The relevant amendments were as follows. First, Bill 105 would have repealed s. 14(2) and substituted the following:

14(2) Every person who is unable or refuses to produce his licence in accordance with subsection 1 shall, when requested by a constable, identify himself by some other means satisfactory to the constable.

Second, the arrest powers in the Act were to be amended to permit, for the first time, the power to arrest for failing to identify. Third, like the present legislation, the arrest power in (then) s. 156 distinguished between constables and everyone else, including officers appointed for carrying out the provisions of the Act. A constable could arrest without warrant on the basis of reasonable and probable grounds. Anyone else could arrest only where he or she found a person actually committing the offence. Fourth, the government proposed to remove the arrest power for certain offences, such as failing to provide a notice of change of ownership. Finally, the specific penalty provision in s. 14 was replaced with a general penalty provision in s. 152 of a fine of not less than $20 and not more than $100. Section 14(1) was unaffected by the proposed amendments.

26There was opposition to the new s. 14(2) because it appeared to give constables discretion to decide what form of identification would be satisfactory. This kind of unfettered discretion was said to be inconsistent with the McRuer Report. Accordingly, the Minister of Transport proposed the following version:

14(2) Every person who is unable or refuses to produce his licence in accordance with subsection 1 shall, when requested by a constable, give reasonable identification of himself and, for the purposes of this subsection, the correct name and address of such person shall be deemed to be a reasonable identification.

27Several points emerge at this point in the Act's history. While a constable or "officer appointed for carrying out the provisions of this Act" could make a demand to a motorist to produce the licence under s. 14(1), the reasonable identification provision was limited to a request from a constable. Thus, the warrantless arrest power in [page538] (then) s. 156 could only be triggered by the actions of a constable. Finally, the new version of s. 14(2) eliminated a constable's discretion to decide what constituted reasonable identification by deeming the correct name and address to be reasonable identification.

28It seems to me that, at this point, the legislation was ambiguous as to whether there had to be a second demand before the arrest power was triggered. It is possible that the clause "when requested by a constable" was not inserted to create a second demand requirement, but to clarify that s. 14(2) was triggered only when the initial demand for production of a licence was made by a constable and not simply by an officer appointed for carrying out the provisions of the Act. Alternatively, s. 14(2) is capable of requiring that, in addition to the s. 33(1) "demand" for the licence, there must be a "request" for identification.

29I point out that the clause "when requested by a constable" is a restrictive relative clause in that the clause is essential to the meaning of the sentence. The clause, at least, was intended to restrict the operation of the alternative identification requirement to demands or requests by constables and probably should not have been separated from the rest of the sentence by commas. In the result, it may be that the use of commas in the various versions of the provision does not materially assist in interpreting s. 33(3).

30The next significant amendment to the relevant provisions occurred in the 1990 Revised Statutes of Ontario. Section 14 has now become s. 33 and the legislation has been amended to be gender neutral. It is also important at this point to note the French language version. Section 33 in the French and English versions of R.S.O. 1990 [c. H.8] reads as follows:

33(1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(2) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) shall, when requested by a police officer, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification. . . . . .

33(1) Le conducteur d'un véhicule automobile ou d'un tramway porte sur lui en tout temps son permis de conduire lorsqu'il a la charge du véhicule automobile ou du tramway. Il le présente pour inspection légitime, à la demande d'un agent de police ou d'un agent chargé de faire appliquer les dispositions de la présente loi.

(2) Quiconque n'est pas en mesure de présenter son permis ou refuse de le faire conformément au paragraphe (1) lorsqu'un agent de police le lui [page539] demande, est tenu de s'identifier de façon suffisante. Pour l'application du présent paragraphe, le nom et l'adresse exacts de cette personne sont réputés constituer une identification suffisante.

31The French version of the legislation suggests that there is only one demand, namely the demand made under s. 33(1). Where that demand is made by a police officer and not simply by an officer appointed for carrying out the provisions of this Act, a driver who was unable or refused to surrender his or her licence must provide some other form of identification. If the person fails to comply, the warrantless arrest power in (now) s. 217 is triggered. Reference to the French version of the legislation could resolve the apparent ambiguity in the English version in accordance with the shared meaning rule explained by the Supreme Court of Canada in R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128, [1996] S.C.J. No. 121. ⁴ In that case, the court was required to interpret s. 121 of the Criminal Code. The English and French versions of the legislation were slightly different. Speaking for the majority at para. 50, L'Heureux-Dubé J. held as follows:

Since the two versions are somewhat different, we must attempt to find a shared meaning: R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 223; Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 275. It does not appear that the sections are contradictory; rather, the English version is open to different interpretations while the French version is open to just one. Given the purpose of the statute, which is to preserve the appearance of integrity, I believe the French version is the applicable one. I find it hard to see how the purpose of the statute would be furthered by accepting the broader English meaning. As the French version eliminates any ambiguity in the statute, it is incumbent upon the Court to accept this narrower meaning.

(Emphasis added)

32However, the legislative history does not end there. In 1993, the legislature brought in further amendments to the Act with the Highway Traffic Amendment Act (Novice Drivers), 1993, S.O. 1993, c. 40. This legislation introduced graduated licensing into Ontario. Among other things, the new legislation renumbered s. 33(2) as s. 33(3) and enacted a new s. 33(2) requiring an "accompanying driver" to carry his or her licence and to surrender the licence upon the demand of a police officer or officer appointed for carrying out the provisions of the Act. The amended s. 33(3) imposed the identification requirement on both the driver and the accompanying driver. Further, the power to request identification was now given to both a police officer and an officer appointed for carrying out the provisions of the Act. [page540]

33Perhaps more significantly, however, is the revision to the French version of s. 33, and especially s. 33(3). The section now reads as follows:

33(1) Le conducteur d'un véhicule automobile ou d'un tramway porte sur lui en tout temps son permis de conduire lorsqu'il a la charge du véhicule automobile ou du tramway. Il le présente pour inspection légitime, à la demande d'un agent de police ou d'un agent chargé de faire appliquer les dispositions de la présente loi.

(2) Le conducteur accompagnateur, au sens de l'article 57.1, porte son permis de conduire sur lui et le présente pour inspection légitime à la demande d'un agent de police ou d'un agent chargé de l'application de la présente loi.

(3) Quiconque n'est pas en mesure de présenter son permis ou refuse de le faire conformément au paragraphe (1) ou (2) est tenu, lorsqu'un agent de police ou un agent chargé de l'application de la présente loi le lui demande, de s'identifier de façon suffisante. Pour l'application du présent paragraphe, le nom et l'adresse exacts de cette personne sont réputés constituer une identification suffisante.

34For convenience, I again set out the current English version of the section:

33(1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(2) Every accompanying driver, as defined under section 57.1, shall carry his or her licence and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.

35The French version of s. 33(3) now more closely tracks the English version. As a result of the rearrangement of the words in the French version of s. 33(3), it is uncertain that a demand for production of the licence is sufficient to trigger a requirement to provide further identification.

36I draw the following conclusions from this legislative history. When the Act was amended in 1969, at least one purpose of the legislature was to bring the Act into conformity with the recommendations of the McRuer Report. This was achieved by limiting the scope of the warrantless arrest power to a failure to identify, not merely a failure to produce a licence, and removing the officer's discretion to determine what constituted suitable identification. The legislature must have intended that a person [page541] could not be arrested without warrant for failing or refusing to produce a licence and that something more or different was required. Interpreting the Act to require a separate request for identification alternative to the licence to trigger the arrest power is most consonant with that intention and the use in the English version of the two different terms "demand" and "request".

37Nevertheless, the alternative identification requirement was ambiguous and could also be interpreted as requiring the person to provide identification pursuant to a single demand where that demand was made by a police officer. The pre-1993 French version of the legislation tends to favour this interpretation. The post-1993 French version is of little assistance as it is now open to the same reading as the English version. I point out, however, that if the provision is ambiguous, it ought to be interpreted in a manner that favours the liberty of the subject. That brings me to a discussion of the scheme of the Act.

Scheme of the Act

38The Act has many purposes. It is first and foremost a collection of duties and obligations imposed on drivers in relation to operation of vehicles, especially motor vehicles, to ensure the safety of motorists and others. See Harris v. Yellow Cab Ltd., 1926 387 (ON CA), [1926] O.J. No. 4, [1926] 3 D.L.R. 254 (C.A.). It also establishes a licensing scheme and gives to police officers (and other officers appointed for the purpose of carrying out the provisions of the Act) powers to enforce this bundle of regulations, including the licensing scheme. However, the Act is only quasi-criminal legislation and strict limits have been placed on the powers of police and others to enforce the legislated duties and obligations by means more normally associated with criminal legislation. The limited power of arrest is one example. Under the Criminal Code, a person can be arrested without warrant for any offence. Under the Act, the circumstances that can trigger an arrest have been closely circumscribed. ⁵ While there are some other arrest powers in the Act, the general arrest power is found in s. 217. The relevant parts of s. 217 are the following:

217(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47 (5), (6), (7) or (8), section 51, 53, 130, 172 or 184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention. [page542]

(3) Every person may arrest without warrant any person whom he or she finds committing any such contravention.

39In my view, the most important point in considering the legislative scheme is the relationship between s. 33 and the warrantless arrest power in s. 217. As pointed out above, s. 33(1) imposes duties on drivers to carry their licence and produce it upon demand. However, a driver cannot be arrested without warrant for breach of these duties. The power to arrest without warrant is set out in s. 217(2) and applies only to contravention of s. 33(3). Section 217(2) gives a police officer the power to arrest for the s. 33(3) contravention on the basis of reasonable and probable grounds. Section 217(3) gives anyone, which would include an officer appointed for the purpose of carrying out the provisions of the Act, the power to arrest for the contraventions mentioned in s. 217(2). However, the person exercising the power to arrest under s. 217(3) must actually find a person committing the contravention. He or she cannot make an arrest on the basis of reasonable and probable grounds.

40Interpreting s. 33(3) so that an officer is not required to specifically request alternative identification would undermine the legislature's intention that failure to produce a licence is not a contravention for which a driver can be arrested without warrant. It would undermine the obvious intention to limit the warrantless arrest power.

Legislative context

41The final factor to consider is the legislative context in which s. 33(3) is found. Section 33 is found in Part IV of the Act. Section 31 provides that the purpose of Part IV is to protect the public by ensuring that "the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely" and that full driving privileges are granted only after new drivers have gained the necessary experience. Section 33 assists with these purposes by providing a means of ensuring that only properly licensed persons are on the road and as a first step in identifying persons who may be abusing the driving privilege. An interpretation that is most consistent with this context is one that gives a police officer two distinct powers: a power to demand a licence and a power to require alternative identification.

Other cases

42There has been some consideration of s. 33(3). R. v. Waechter, 2006 ONCJ 128, [2006] O.J. No. 1466, 70 W.C.B. (2d) 14 (C.J.), R. v. Malik, [2001] O.J. No. 4547 (C.J.), R. v. Blake, [2003] O.J. No. 818,[page543] 35 M.V.R. (4th) 151 (S.C.J.) ⁶ support the view that there must be a request to provide identification before s. 33(3) is triggered. The only case that appears to support the view taken by the appeal judge in this case is R. v. Bugaeva, [1999] O.J. No. 2738, 44 M.V.R. (3d) 187 (C.J.), although there is little analysis of the provision.

Conclusion on interpretation

43In my view, the proper interpretation of s. 33(3) requires that the officer must make a specific request for identification other than a driver's licence. Until that request for alternative identification has been made and the person has refused to comply, there is no contravention of the subsection. It follows that there can be no power to arrest without a warrant until the officer has made the request for alternative identification. The appeal judge erred in law in his interpretation of s. 33(3).

Application to the facts of this case

44In my view, the appellant did not contravene s. 33(3) and thus there was no power to arrest him without a warrant. Constable Allcroft testified with admirable clarity about his dialogue with the appellant. While he repeatedly asked the appellant to provide his licence and the appellant repeatedly refused, the officer did not then ask him to give some other reasonable identification.

45I have considered whether the fact that the officer also asked for ownership and insurance, which might provide identification, ⁷ could constitute a request of alternative identification. However, I conclude that it cannot. Such an interpretation of the demand would be inconsistent with the concluding words of s. 33(3), which provide that the correct name and address of the person is deemed to be reasonable identification. As I have pointed out, the legislative purpose of including this phrase was to avoid the exercise of an unfettered discretion whereby the officer could determine the form of alternative identification that would be sufficient. Further, while an officer can make a demand under s. 7(5) of the Act that a driver surrender the ownership permit for inspection, contravention of that provision is not an offence for which a person can be arrested without warrant. Similarly, under s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, the operator [page544] of a motor vehicle on a highway must carry evidence of insurance and a police officer may demand its surrender. But, contravention of s. 3(1) is not an offence for which a person can be arrested without a warrant.

46As the appeal judge observed, s. 33 imposes positive legal duties on drivers to identify themselves. But, those duties are only triggered in the specific circumstances set out in ss. 33(1) and (3). In this case, while the s. 33(1) duty was triggered, the s. 33(3) duty was not. The appeal judge said in his reasons [at para. 33]:

A demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/he fails to identify herself/himself will be sufficient to trigger the arrest power in s. 217(2).

However, in this case the warning Constable Allcroft gave to the appellant was tied to the failure to produce his licence, ownership and insurance, not to a failure to provide alternative identification by way of his name and address. Thus, the arrest power was not triggered.

47On the version of events as testified to by the officer there can be little doubt that, had the request for alternative identification been made, the appellant would have refused to comply. But, that is not the point. The arrest power is a limited one and it can only be triggered if the officer had reasonable and probable grounds to believe that the appellant had contravened s. 33(3). Reasonable and probable grounds imply objective and subjective components: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, 53 C.C.C. (3d) 316, at p. 250 S.C.R., p. 324 C.C.C. The officer not only had to believe that the appellant had committed an offence under s. 33(3), but that belief had to be reasonable. On the facts known to the officer, the appellant did not contravene s. 33 and therefore the officer did not have grounds to make the arrest. Without the request, an essential element of the contravention was not made out.

Impact on the arrest

48Because there was no power of arrest, the arrest of the appellant was unlawful. The appeal judge observed in obiter that it would have been better had the appellant submitted to the arrest and not resorted to self-help. No doubt, it would have been better, but a person is entitled to resist an unlawful arrest, even where the unlawful arrest is attempted by a police officer. In the circumstances of this case, if the arrest was unlawful, the officer was not in the execution of his duty and thus the offence of assaulting an officer in the execution of his duty was not made out. See R. v. Delong, 1989 7164 (ON CA), [1989] O.J. No. 206, 47 C.C.C. (3d) 402 (C.A.), at p. 411 C.C.C.

49Further, in attempting to arrest the appellant without legal authority, the officer unlawfully assaulted him. The appellant was [page545] therefore not guilty of the included offence of assault. Section 34(1) of the Criminal Code gave him the right to resist the unlawful assault by the officer provided the force used was not intended to cause death or grievous bodily harm and was no more than necessary to defend himself. There was no suggestion that the force used by the appellant in resisting the arrest was capable of depriving him of the defence in s. 34(1). A similar analysis applies to the other charge of assault with intent to resist arrest. Since the appellant was unlawfully assaulted he had a lawful right to resist the arrest.

Disposition

50Accordingly, I would grant leave to appeal, allow the appeal and dismiss the charges against the appellant.

51MACPHERSON J.A. (dissenting): -- I have had the opportunity to read the draft reasons prepared by my colleague, Rosenberg J.A. I agree with much of his legal analysis concerning s. 33(1) and (3) of the Highway Traffic Act. However, I do not agree with his application of the law to the facts of this case. In my view, my colleague wrongly rejects clear findings of fact by both the trial judge and the summary conviction appeal judge. Moreover, on the record in this case, the factual findings made by the judges below are strongly supported by the record.

52I begin with the observation that the trial judge found that the police officer's behaviour throughout the incident was entirely professional whereas the appellant's conduct was inexplicable and outrageous. As expressed by the trial judge:

At no place in his evidence did the accused say or deny he was wearing a seat belt, or deny the accusation that he was not wearing a seat belt. This is the reason why the officer stopped the accused. He saw an incident, not a major incident by any stretch of the imagination, and reacted to it and executed his duty but was met with abuse, profanity, intimidation and a level, albeit a low level, of violence.

53My colleague has set out the police officer's testimony about the incident at para. 3 of his draft reasons. He correctly notes that the trial judge accepted the officer's version of events.

54The summary conviction appeal judge, Cumming J., assessed this testimony in his reasons at paras. 28-29:

The evidentiary record supports a finding that there were reasonable and probable grounds for the officer to arrest the Appellant for a violation of s. 33(3) of the Highway Traffic Act. The Appellant submits that the only possible violation by the Appellant was in respect of s. 33(1). I disagree.

The police officer testified that he requested the Appellant's licence, proof of insurance and ownership. The Appellant had ample opportunity [page546] to produce "reasonable identification." The Appellant's statements to the officer and conduct amounted to a refusal to produce any reasonable identification, as required by ss. 33(1) and (3). The record establishes the Appellant did not offer to give any reasonable identification of himself. On his own evidence, he had a licence. On the trial judge's finding, he refused to produce any identification.

55In my view, this analysis is an eminently reasonable interpretation of the entire incident based on the police officer's testimony, which was accepted by the trial judge and not challenged on either appeal.

56I also agree with Cumming J.'s observation at para. 33:

In my view, insisting that officers engage in a rigid, formulaic demand process in the unpredictable and dynamic environment that constitutes most traffic stops places too high a burden on the officer. A demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/he fails to identify herself/himself will be sufficient to trigger the arrest power in s. 217(2).

57I want to address a final issue. My colleague states that "in attempting to arrest the appellant without legal authority, the officer unlawfully assaulted the appellant". With respect, this turns upside down the actual events that unfolded on a Toronto street. The trial judge found that the police officer's reasonable request "was met with abuse, profanity, intimidation and a level, albeit a low level, of violence". He also found that the accused "was totally out of control", so much so that two passersby intervened to assist the police officer in subduing the appellant. In short, the appellant committed the only assault in this case.

58For these reasons, I would dismiss the appeal.

Footnotes

1. 1It is unclear whether the appellant in fact was committing a seat belt offence. Under the Act, taxi drivers are exempt from wearing "the complete seat belt assembly in a properly adjusted and securely fastened manner" while transporting for hire a passenger. See R.R.O. 1990, Reg. 613, s.7(2).
2. 2Accompanying drivers referred to in s. 33(2) are part of the graduated licence scheme under the Act for novice drivers.
3. 3The Act gave the power to arrest on reasonable and probable grounds to officers appointed by the Minister as well as constables.
4. 4Also see R. v. Davoust, 2004 SCC 6, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, at paras. 26-31.
5. 5The Provincial Offences Act, R.S.O. 1990, c. P.33, s.145 has a limited arrest power that does not apply in this case.
6. 6I should not be taken as agreeing with the further holding in Blake that, if the officer knows the identity of the driver, the officer is not entitled to make the request under s.33(3). That was not an issue in this case.
7. 7Although production of the insurance and ownership might not necessarily have provided identification, in this case, if the appellant did not own the taxi.