Court File and Parties
Ontario Court of Justice
Between:
Her Majesty The Queen
— AND —
Katelyn Correia
Before: Justice of the Peace Kenneth W. Dechert
Heard on: December 19, 2012, September 25, 2013, April 2, 2014, November 19, 2014 and January 26, 2015
Reasons for Judgment released on: April 27, 2015
Provincial Offences Court – Burlington, Ontario and Milton, Ontario
Counsel
For the Prosecution: A. Khoorshed, C. Gelbard, K. Frew, N. Isak and J. Dafoe
For the Defendant: No appearance by or on behalf of Katelyn Correia, even though notified of time and place
Statutes, Regulations and Rules Cited
- Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, ss. 1(1), paragraph 2(1)(a) and ss. 2(2)
- Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ss. 1(1) and ss. 210(7)
- Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, ss. 32(1), ss. 47(3) and paragraph 54(1)(a)
Cases Cited
- Regina v. Hussain, [2003] O.J. No. 3793 (Ont. C.J.)
- Regina v. Sault Ste. Marie (City), [1978] S.C.J. No. 59
- Regina v. Stone, [1984] O.J. No. 912 (Ont. Co. Ct.)
- Regina v. Zachariou, [1999] O.J. No. 2488 (Ont. C.J.)
Judgment
K.W. DECHERT, J.P. (orally):
INTRODUCTION
1Under Information no. 118574, Katelyn Correia ("the defendant"), stands charged as follows:
On or about the 7th day of November, 2011 at the Town of Oakville, being the owner and operator of a motor vehicle, licence #BHHV700, Ontario issue, upon a highway, namely Highway 403, did fail to have the vehicle insured under a contract of automobile insurance, contrary to section 2(1)(a) of the Compulsory Automobile Insurance Act; and
On or about the 7th day of November, 2011, at the Town of Oakville, being the operator of a motor vehicle, licence BHHV700, Ontario issue, upon a highway, namely Highway 403, did knowingly use a false insurance card, contrary to section 13.1(1)(b) of the Compulsory Automobile Insurance Act.
2The trial of the said charges commenced before me as a trial in the absence of the defendant under paragraph 54(1)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the P.O.A.", on the 19th day of December, 2012. On that date upon arraigning the defendant, I entered a plea of not guilty to each of the said charges on behalf of the absent defendant. At that time I received verbal evidence from Police Constable Andrew Halliday and from Mr. Ken Plahouras, as well as documentary evidence entered into evidence as exhibit #1, tendered on behalf of the Crown. During the course of the testimony of Mr. Plahouras, a representative of the State Farm Insurance Company, I embarked upon a voir dire, to determine the admissibility of certain business records of the State Farm Insurance Company for the truth of their contents, on the basis of the principled approach to hearsay. I received Mr. Plahouras' testimony on the voir dire and the submissions of the prosecutor and then reserved judgment. The proceeding was then adjourned to September 25, 2013, for my ruling on the voir dire and for trial continuation.
3On September 25, 2013, I delivered my judgment on the voir dire, orally, cited as [2013] O.J. No. 4723 (Ont. C.J.). The trial of the proceeding was then adjourned to April 2, 2014 and thereafter to November 19, 2014 for continuation. On November 19, 2014, the Crown completed its case on the trial proper, through the testimony of Mr. Ken Plahouras. I received legal submissions from the Crown at that time, however, the proceeding was further adjourned until January 26, 2015 to permit the Crown to prepare and deliver written legal submissions relative to the charge under section 13.1(1)(b) of the Compulsory Automobile Insurance Act.
4On January 26, 2015, Crown prosecutor J. Dafoe stayed count number two in accordance with the provisions of subsection 32(1) of the P.O.A. The charge under section 2(1)(a) of the Compulsory Automobile Insurance Act was then adjourned to April 27, 2015 for my judgment.
5The Crown was represented by Mr. A. Khoorshed and Mr. C. Gelbard on December 19, 2012, by Ms. K. Frew on September 25, 2013, by Ms. N. Isak on April 2, 2014 and November 19, 2014 and by Ms. J. Dafoe on January 26, 2015. The defendant did not appear either personally or through a representative on any of the said trial dates.
THE LAW
(i) Relevant Statutory Provisions
6The defendant is charged with an offence under paragraph 2(1)(a) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, hereinafter referred to as the "C.A.I.A.". That paragraph reads as follows:
Subject to the regulations, no owner or lessee of a motor vehicle shall,
(a) operate the motor vehicle;
on a highway unless the motor vehicle is insured under a contract of automobile insurance.
7Subsection 2(2) of the C.A.I.A., which is also relevant to this proceeding, states as follows:
For the purposes of subsection (1), where a permit for a motor vehicle has been issued under subsection 7(7) of the Highway Traffic Act"contract of automobile insurance" with respect to that motor vehicle means a contract of automobile insurance made with an insurer.
8The following definitions of terms, contained in subsection 1(1) of the C.A.I.A., are germane to the issues in this matter:
'highway' has the same meaning as in the Highway Traffic Act;
'motor vehicle' has the same meaning as in the Highway Traffic Act and includes trailers and accessories and equipment of a motor vehicle;
9The Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as the "H.T.A.", subsection 1(1), defines the terms "highway" and "motor vehicle" as follows:
'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; and
'motor vehicle' includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine.
10During the course of this trial proceeding, I received two documents into evidence, which were certified by the Registrar of Motor Vehicles under the seal of the Ministry of Transportation of Ontario, for the truth of their contents, under the authority of subsection 210(7) of the H.T.A. That subsection reads as follows:
A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy or the statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.
(ii) Relevant Common Law
11In my view, the C.A.I.A. is a public welfare statute. In reaching that determination, I am persuaded by the reasoning enunciated by MacDonnell J. in Regina v. Zachariou, [1999] O.J. No. 2488 (Ont. C.J.), at paragraph 33, where he states, in part, as follows:
… The fundamental importance of the CAIA [Compulsory Automobile Insurance Act] is to ensure that all motor vehicles on the highway are covered by a contract of insurance. Imposing an obligation on the owner to obtain insurance ensures that when accidents happen, as all too frequently they do, compensation will be available – especially for those who are not at fault. Without such a requirement, the personal and financial consequences of motor vehicle accidents would often be devastating. …
12Accordingly in characterizing the C.A.I.A. as a public welfare statute, I conclude that the offence of owner/operator of a motor vehicle on a highway without insurance, contrary to paragraph 2(1)(a) of the C.A.I.A., is a public welfare offence.
13In his seminal decision in Regina v. Sault Ste. Marie, [1978] S.C.J. No. 59, Dickson J. found that public welfare offences were presumptively, offences of strict liability. He reasoned that while such offences would not require the prosecution to prove the existence of mens rea, once the prosecution proved the prohibited act beyond a reasonable doubt, the burden of proof would shift to the defendant to attempt to prove, on a balance of probabilities, that in committing the prohibited act he/she took all reasonable care. In such circumstances, if the defendant was able to establish the defence of reasonable care, he/she would then be excused of liability for the offence.
14There is no evidence before me which, on a balance of probabilities, rebuts the presumption that the public welfare offence created by paragraph 2(1)(a) of the C.A.I.A., is one of strict liability. I therefore categorize the offence as a strict liability offence. In reaching this conclusion, I am following the decision of De Filippis J. in his P.O.A. appellate decision in Regina v. Hussain, [2003] O.J. No. 3793 (Ont. C.J.), categorizing the said offence as one of strict liability, which finding is binding on me.
15Accordingly, if the prosecution is able to prove all of the essential elements of the subject prohibited act beyond a reasonable doubt, the fault element of negligence is automatically imported into the offence, but the defendant would then have the opportunity of attempting to negate his/her presumed negligence by proving that in committing the offence, he/she exercised reasonable care either through due diligence or by acting on the basis of a reasonable mistake of fact.
16In his appellate level decision in Regina v. Stone, [1984] O.J. No. 912 (Ont. Co. Ct.), Murdoch J. found that the phrase "unless the motor vehicle is insured under a contract of automobile insurance", as contained in subsection 2(1) of the C.A.I.A., were "words falling within the exception, exemption, excuse or qualification" contemplated by subsection 48(3) [now subsection 47(3)] of the P.O.A. In so interpreting that portion of subsection 2(1) of the C.A.I.A., the said jurist reasoned "that whether or not the accused has insurance is peculiarly within his knowledge and that burden of proof lies upon the accused".
17This proposition of law was adopted by Mr. Justice MacDonnell in Regina v. Zachariou, supra. In support of his conclusion that subsection 47(3) of the P.O.A. should apply to the issue of whether a defendant in a prosecution under subsection 2(1) of the C.A.I.A. was insured, the said jurist made the following comments at paragraph 15 of the decision:
I am reinforced in that opinion by the fact that if a burden of establishing the non-existence of a contract of insurance were on the Crown, the important objectives of s. 2(1) would be seriously undermined. The CAIA requires the owner of a motor vehicle to enter into a contract of insurance but it leaves the choice of insurer to the owner. The contract is a private arrangement with a third party, and the status of that arrangement is, as between the government and the owner, a matter peculiarly within the knowledge of the owner. Whether a contract of insurance is in force at any particular time is not a matter that the government can reasonably be expected to know. In my view, the fact that the legislation would be virtually unenforceable were the burden on the crown is a relevant consideration with respect to whether the legislature intended to put the burden on the Crown.
18Accordingly based upon the proposition of law stated in both Regina v. Stone and Regina v. Zachariou, the provisions of subsection 47(3) of the P.O.A. apply to the issue of the proof of whether the subject motor vehicle was insured under a contract of automobile insurance at the material time. That subsection reads as follows:
The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
THE ISSUES
19The central issue in this proceeding is whether or not the prosecution has proven all of the essential elements of the prohibited act herein, beyond a reasonable doubt.
20The sub-issues are as follows:
Whether the prosecution has proven, beyond a reasonable doubt, that on the date in question, the defendant was operating a motor vehicle on a highway in the Town of Oakville?
If the defendant was so operating a motor vehicle, whether the prosecution has proven, beyond a reasonable doubt that she was, at that time, the owner of the motor vehicle? and
Whether the defendant has proven, on a balance of probabilities, that at the time that she was operating the motor vehicle, it was insured under a contract of automobile insurance?
21If the prosecution has met its burden of proof in respect of the identified elements and the defendant has failed to show, on a balance of probabilities, that the subject motor vehicle was insured, then the prosecution will have succeeded in proving the prohibited act of the subject strict liability offence beyond a reasonable doubt. In that circumstance, the legal burden of proof shifts to the defendant to attempt to establish the defence of reasonable care. If the defendant establishes the said defence on a balance of probabilities, the charge will be dismissed, otherwise she will be found guilty and convicted.
THE EVIDENCE
22During the trial proceedings of December 19, 2012, I received verbal evidence tendered on behalf of the prosecution from both Police Constable Andrew Halliday and Mr. Ken Plahouras. Mr. Plahouras completed his testimony during the trial proceedings of November 19, 2014. Additionally on December 19, 2012, I received documentary evidence, admitted under the authority of subsection 210(7) of the H.T.A., entered collectively as exhibit #1 to this proceeding.
(i) The Testimony of Police Constable Andrew Halliday
23Constable Halliday testified that he was a constable with the Ontario Provincial Police and that he had been so employed since January of 2006.
24He testified that on November 7, 2011 he was assigned to "regular uniformed patrol in a fully marked O.P.P. police vehicle". He stated that at that time, he was "set up" on the right shoulder of the Highway 403 westbound off ramp to Upper Middle Road, in the Town of Oakville. He advised that at 2:40 p.m., he observed a black-coloured Acura motor vehicle, bearing licence plate number BHHV 700, pass his location. He stated that he then performed a check of the said licence plate, utilizing his "in-car mobile work station", following which he "caused" the Acura motor vehicle to stop on the right shoulder of the off ramp.
25Constable Halliday testified that upon stopping the motor vehicle he spoke with its driver, requesting the production of a driver's licence, ownership documentation for the motor vehicle and proof of insurance. He stated that the female driver then produced to him "an Ontario photo driver's licence" bearing the name of Katelyn Correia, with a date of birth of September 25, 1990. The officer stated that he then compared the photo on the driver's licence with the driver in front of him and was satisfied with the identity of the driver as set out in the driver's licence.
26Constable Halliday testified that Ms. Correia then produced an ownership permit for the subject motor vehicle and an insurance card issued by the State Farm Insurance Company ostensibly showing insurance coverage for the subject vehicle, expiring on January 10, 2012. He stated that he then made note of the vehicle identification number for the subject Acura motor vehicle, being JH4UA2640VC800063, which he observed through the "clear, unobstructed windshield" of the subject vehicle. He indicated that the said number appeared on both the permit for the vehicle and on the said insurance card.
27Constable Halliday completed his testimony by stating that he then placed a telephone call to the State Farm Insurance Company, following which he issued two summons to Ms. Correia.
(ii) The Testimony of Mr. Ken Plahouras
28At the outset of his testimony, Mr. Plahouras advised that he was employed as an "auto underwriter" in the auto operations department of the State Farm Insurance Company, and had been so employed for a period of nine years prior to the time of his testimony on November 19, 2014.
29During the course of his testimony, he referred to certain business records pertaining to the status of an automobile insurance policy issued in the name of Katelyn Correia with the State Farm Insurance Company. In particular, Mr. Plahouras referred to documents which he described as the "policy master record" for an insurance policy in the name of Katelyn Correia.
30Mr. Plahouras testified that on January 10, 2011, the State Farm Insurance Company issued an automobile insurance policy to Katelyn Correia, with a date of birth of September 25, 1990, to insure a 1997 Acura motor vehicle bearing vehicle identification number JH4UA2640VC800063, being policy number 1658343. He advised that the policy showed Ms. Correia's address as being 148 Riverview Street, Oakville, Ontario.
31He testified that this policy was cancelled by the State Farm Insurance Company due to non-payment of a monthly insurance premium, effective 12:01 a.m. on October 8, 2011. He advised that when Ms. Correia entered into the insurance contract with the company, she agreed to pay her monthly insurance premiums through an automatic debit plan from her bank account. He stated that Ms. Correia failed to pay the insurance premium due on the 6th day of September, 2011.
32Mr. Plahouras testified that according to the records of the insurance company, Ms. Correia's bank reported that there were insufficient funds in the bank account to pay the premium due on September 6, 2011. He stated that when the insurance company received the "non-sufficient funds" notice from the bank, it issued a cancellation notice to Ms. Correia. This notice was sent by registered mail to Ms. Correia at 148 Riverview Street, Oakville Ontario, L6L-5P7 on September 7, 2011. Mr. Plahouras then identified a document titled a "cancellation notice – non-payment of premium" in the form prescribed by the State Farm Insurance Company, in the name of Kate Correia relative to her automobile insurance policy for the subject 1997 Acura motor vehicle. This cancellation notice dated September 6, 2011, was entered into evidence in this proceeding as exhibit #2.
33In commenting on this cancellation notice, Mr. Plahouras advised that it was sent to Ms. Correia at the address shown on the insurance company's records, by registered mail on September 7, 2011. He advised that the notice indicated that if the State Farm Insurance Company did not receive payment of the outstanding premium by 12:01 a.m. on October 8, 2011, the subject insurance policy would be cancelled. He went on to advise that the State Farm Insurance Company did not, at any time, receive notification from Canada Post that the said cancellation notice had not been claimed and received by the addressee shown on the notice.
34Mr. Plahouras testified that Ms. Correia did not make the required payment on account of the outstanding premium as of October 8, 2011 at 12:01 a.m., and that accordingly, the subject insurance policy was cancelled at that time.
35Mr. Plahouras stated that as of November 7, 2011, Ms. Correia's 1997 Acura motor vehicle was not insured with the State Farm Insurance Company. He went on to state that as of November 7, 2011, Ms. Correia did not have any motor vehicles insured with the State Farm Insurance Company.
(iii) Documentary Evidence
36On December 19, 2012, the Court entered two certified documents from the records of the Ministry of Transportation of Ontario, into evidence, collectively, as exhibit #1 to this proceeding.
37The first document was titled a "Plate by Date" search, relative to the status of Ontario licence plate number BHHV 700 as of November 7, 2011. According to the search document, as of November 7, 2011 the registrant of the said licence plate was Katelyn Nichol Correia of 148 Riverview Street, Oakville, Ontario, L6L-5P7. The document went on to indicate that the said licence plate was attached to a motor vehicle bearing vehicle registration number JHU4UA2640VC800063, being a 1997, black-coloured Acura sedan, with a validation tag for the licence plate scheduled to expire on September 25, 2012.
38The second document was titled a "VIN [Vehicle Identification Number] by Date" search, relative to the status of a vehicle bearing vehicle identification number JH4UA2640VC800063, as of November 7, 2011. The search document states that as of November 7, 2011, the registered owner of the motor vehicle bearing the said vehicle identification number was Katelyn Nichol Correia of 148 Riverview Street, Oakville, Ontario, and that the motor vehicle bearing the said vehicle identification number was a 1997 black-coloured Acura sedan, bearing Ontario licence plate number BHHV 700.
ANALYSIS
Issue no. 1 – Whether the prosecution has proven, beyond a reasonable doubt, that on the date in question, the defendant was operating a motor vehicle on a highway in the Town of Oakville?
39The undisputed testimony of Police Constable Andrew Halliday in this proceeding establishes, beyond a reasonable doubt, that on November 7, 2011 at 2:40 p.m. the defendant Katelyn Correia, born on the 25th day of September, 1990, was driving a black-coloured Acura motor vehicle on the Highway 403 westbound off ramp to Upper Middle Road, in the Town of Oakville, being a highway within the definition of that term as stated in the H.T.A.
40Constable Halliday spoke with the driver of the subject motor vehicle, sitting in the driver's seat, when he stopped the vehicle on the shoulder of the said highway. He was able to establish the identity of the driver of the motor vehicle as the defendant, through a driver's licence containing a photograph, which was produced by the defendant at the relevant time. The constable indicated that he was satisfied with the identification given through the driver's licence after he compared the image on the licence with the visage of the female driver before him at that time.
41Furthermore, based on Constable Halliday's testimony, I am able to find, beyond a reasonable doubt that in driving the subject Acura vehicle at the material time, the defendant was controlling its function and thereby operating it.
42Accordingly, based on the testimony of Constable Halliday, I am satisfied that the prosecution has proven that the defendant was, at the material time, operating a motor vehicle to wit: an Acura automobile, on a highway to wit: Highway 403, in the Town of Oakville. In light of the absence of any evidence to the contrary, these essential elements of the prohibited act herein, have been proven beyond a reasonable doubt.
Issue no. 2 – Whether the prosecution has proven, beyond a reasonable doubt, that the defendant was the owner of the Acura motor vehicle which she was operating on Highway 403, at the material time?
43The totality of the undisputed evidence before me in this proceeding clearly establishes, beyond a reasonable doubt that the black-coloured Acura motor vehicle that the defendant was operating on Highway 403 at the relevant time, was owned by the defendant.
44This conclusion is based upon Constable Halliday's observation that the said Acura motor vehicle bore Ontario licence plate number BHHV 700 as well as his evidence as to the Vehicle Identification Number for the vehicle, which he observed and recorded in the course of his investigation. The certified information obtained from the records of the Ministry of Transportation entered into evidence in this proceeding as exhibit #1, clearly and unequivocally establishes that as of the date of the subject offence, November 7, 2011, Katelyn Nichol Correia of 148 Riverview Street, Oakville, Ontario, was the owner of the subject 1997, black-coloured Acura motor vehicle.
45The subject "Plate by Date" search shows that as of November 7, 2011, the defendant was the registered owner of licence plate number BHHV 700, which was attached to the subject 1997 Acura motor vehicle, bearing vehicle identification number JH4UA 2640VC800063. This was the vehicle identification number which Constable Halliday observed on the subject motor vehicle and recorded in his investigative notes on the date in question.
46Furthermore, the subject "Vehicle Identification Number" search proves that as of November 7, 2011, the defendant was the registered owner of a 1997 - black-coloured Acura sedan, bearing the vehicle identification number stated above, being the number observed by Constable Halliday on the said motor vehicle on the date in question and recorded by him in his investigative note-book at that time.
47The combination of the testimony of Constable Halliday and the documentary evidence obtained from the records of the Ministry of Transportation clearly and unequivocally establishes that the defendant, Katelyn Correia was the owner of the subject Acura motor vehicle on the date in question. As there is no evidence to the contrary this element of the prohibited act herein has been established beyond a reasonable doubt.
Issue no. 3 – Whether the defendant has proven, on a balance of probabilities, that at the time she was operating the Acura motor vehicle on November 7, 2011, it was insured under a contract of automobile insurance?
48The credible and reliable testimony of State Farm Insurance Company representative Mr. Ken Plahouras establishes, beyond a reasonable doubt that the automobile insurance policy which Ms. Correia initially took out on her 1997 Acura motor vehicle on January 10, 2011, was cancelled by the insurance company on October 8, 2011. Accordingly, the insurance card from the said insurance company which she produced to Constable Halliday on November 7, 2011, had lapsed and was no longer valid. The insurance card produced by the defendant to the police officer did not, therefore, constitute reliable evidence that the defendant's Acura motor vehicle was insured under a contract of automobile insurance as of November 7, 2011.
49The burden of proving whether the subject Acura motor vehicle was insured under a contract of automobile insurance as of November 7, 2011 rests with the defendant, on a balance of probabilities, in accordance with the provisions of subsection 47(3) of the P.O.A. The issue of the existence of a valid contract of automobile insurance on the subject vehicle on the date in question constitutes an exception, exemption or qualification to liability prescribed by law. The defendant bears the onus of showing that the said exception, exemption or qualification operates in her favour.
50There is no evidence in this proceeding which proves that as of the 7th day of November, 2011, the subject 1997 Acura motor vehicle was insured under a contract of automobile insurance.
51The defendant has failed to discharge her burden of proof in this regard, on a balance of probabilities. She has not, therefore, established that the exception, exemption or qualification prescribed by law as created by the phrase contained in subsection 2(1) of the C.A.I.A."unless the motor vehicle is insured under a contract of automobile insurance", operates in her favour, as required by subsection 47(3) of the P.O.A.
THE DECISION
52The totality of the evidence received by me in this trial in the absence of the defendant, establishes all of the elements of the actus reus of the subject offence under paragraph 2(1)(a) of the C.A.I.A., beyond a reasonable doubt. The defendant has failed to prove, on a balance of probabilities, that her 1997 Acura motor vehicle was insured under a contract of automobile insurance. She has therefore failed to establish that the statutory exception, exemption or qualification to liability for this offence operates in her favour.
53Furthermore, there is no evidence in this proceeding which proves, on a balance of probabilities, that the defendant took all reasonable steps to avoid committing the prohibited act or in committing the prohibited act did so under an honest and reasonable mistake of fact. The defendant has failed to negate her presumed negligence in committing the subject strict liability offence, and she is not, therefore, excused of liability for the offence.
54Katelyn Correia is therefore found guilty of the subject offence, as stated in count #1 to Information no. 118574, contrary to paragraph 2(1)(a) of the C.A.I.A. and a conviction is registered.
Released: April 27, 2015
Signed: "Justice of the Peace Kenneth W. Dechert"
