Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
David Sen
Before: Justice of the Peace M. Coopersmith
Heard on: November 28, 2016 and May 23, 2018
Reasons for Judgment released on: July 16, 2018
Counsel
For the Prosecution: C. Cain and V. McGuire
For the Defendant: I. Collins
Judgment
Justice of the Peace Coopersmith:
I. Introduction
1On November 9, 2015, David Sen was charged with driving a motor vehicle on Kerrison Drive, near Alexander's Crossing in the Town of Ajax, while his driver's licence was suspended, contrary to subsection 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended ["HTA"]. This charge forms the basis for the issue to be determined in this trial.
2Durham Regional Police Officer Greg O'Connor provided evidence for the prosecution. In addition, the prosecution provided two certified documents from the Office of the Registrar of Motor Vehicles for the Ministry of Transportation. David John Lyon and the defendant, David Sen, testified for the defence.
3For the reasons below, I find the defendant, David Sen, guilty of driving a motor vehicle on a highway while his driver's licence was suspended, contrary to subsection 53(1) of the HTA.
II. Evidence
(a) Evidence of Durham Regional Police Officer Greg O'Connor
4On Monday, November 9, 2015, Officer Greg O'Connor was in full uniform as a Durham Regional Police Officer when he started his shift around 6:00 a.m. He was in the Town of Ajax, on general patrol in the area of Silverwood Circle, operating a fully-marked police cruiser. That morning, a colleague had alerted him to information that a male, named David Sen, was a suspended driver and was continuously driving his motor vehicle. Around 6:10 a.m., Officer O'Connor drove to the defendant's address, 69 Silverwood Circle, where he observed a pick-up truck in the driveway. The truck was running, with no one in it. The officer parked first on Silverwood Circle and then, concerned that he might not be able to see the truck go by him, he moved his vehicle to Turnerbury Avenue and Silverwood Circle. He was just north of the intersection, on the west side of Turnerbury Avenue facing south.
5Around 7:10 a.m., the officer observed the pick-up truck westbound on Silverwood Circle, about 50 feet from where he was parked. It turned left to go south onto Turnerbury, moving at a high rate of speed. The officer followed the truck as it proceeded along Turnerbury, which turns into Alexander's Crossing after the roundabout. The truck then turned right into the first or north entrance into the parking lot of the casino located at 50 Alexander's Crossing in Ajax and parked on the west side of the lot.
6Without losing sight of the pick-up truck, the officer conducted a traffic stop. As he pulled behind the vehicle, he observed Mr. Sen, the lone occupant of the motor vehicle, exit from the driver's side. The defendant immediately engaged the officer in conversation. He provided his ownership and insurance documents and verbally identified himself as David Sen, with a date of birth of October 30, 1963. The officer was satisfied with this identification.
7Based on Officer O'Connor's investigation, he issued a Part III summons to Mr. Sen for driving a motor vehicle while his driver's licence was under suspension. Subsequently, the pick-up truck was towed from the parking lot.
(b) Certified Documentation from the Office of the Registrar of Motor Vehicles
8In accordance with section 210 of the HTA, the prosecution provided a certified document from the office of the Registrar of Motor Vehicles for the Ministry of Transportation. It relates to a notice of licence suspension for David Sen, born October 30, 1963. It shows that Mr. Sen's driver's licence had been suspended effective May 22, 2003, pursuant to the HTA, for failure to satisfy a court judgment. The notice of suspension was mailed on May 23, 2003, to the latest address of Mr. Sen then on record with the Ministry. The suspension was still in effect on November 9, 2015. [Exhibit 1.]
9The prosecution also provided certified documentation from the Officer of the Registrar of Motor Vehicles for the Ministry of Transportation, relating to David Sen, with a date of birth of October 30, 1963, showing that his driver's licence was suspended effective August 19, 2005, pursuant to a court order under the HTA for default payment of a fine. The notice of suspension was mailed to Mr. Sen on August 19, 2005, to the latest address then on record with the Ministry. This suspension was still in effect on November 9, 2015. [Exhibit 2.]
(c) Evidence of the Defendant, David Sen
10Mr. Sen works in automotive restoration, doing bodywork, prepping and painting antique cars. He works for SN Diesel, where he is a paint supervisor for approximately 13 people. SN Diesel is the broker and does all of this type of work for York Regional Transit, Greyhound buses and other customers. It is located near Canada's Wonderland. As well, a few times each year SN Diesel sends Mr. Sen to Fort McMurray for about three weeks, where he supervises about 238 people. There, they do all the mechanical work, engine rebuilding, upholstery work and refurbishing of vehicles.
11Mr. Sen and his wife also have a cleaning business, C. N. Cleaners. There are 29 employees who clean homes, industrial units and dentist places. The defendant is a partner in the business and on weekends he cleans and polishes floors. There is a driver who drives the employees around.
12Mr. Sen is aware that his driver's licence is suspended for failing to pay a judgment. Years previously, he had been in a motor vehicle collision and, consequently, had to pay a judgment against him of one hundred and thirty eight thousand dollars. He has been making payments, with about three thousand, five hundred dollars still outstanding. Therefore, he has the driver his wife hired for the cleaning business, Dave Long, drive him where he needs to go.
13Mr. Sen has known the driver for about six or seven years. Mr. Long does quite a lot of custom upholstery for the antique cars, as well as work for Mr. Sen's wife. In the mornings, Mr. Long's wife drives him to the defendant's house and he drives Mr. Sen to work. He uses Mr. Sen's wife's motor vehicle – a 2006 GMC Sierra 3500 pick-up truck, with dually wheels in the back. Mr. Long then calls the defendant's wife to get instructions about sites where he is to drive the cleaning business employees. At the end of Mr. Sen's working day, the driver picks him up and drives him home.
14On November 9, 2015, Mr. Sen was getting ready to go to work. He looked out the second storey bedroom window and saw an unmarked car on which he "noticed that the police thing on – on the vehicle slowed down in front of 69 Silverwood Circle". He described the police signs or "ghost markings" that can hardly be seen on the quarter panel of the vehicle. Mr. Sen finished getting ready for work, picked up his cup of tea and put on his boots. Dave Long arrived before 7 a.m. and was inside the house to pick up the keys and warm up the truck in the driveway.
15Mr. Sen and Mr. Long left the residence and got into the vehicle. Mr. Long was driving, while the defendant sat in the front passenger seat. As they drove eastwards on Silverwood Circle, just before Turnerbury Avenue, Mr. Sen looked to his left and saw the police vehicle parked facing north towards Silverwood.
16The pick-up truck turned left onto Turnerbury and went about fifty feet onto the roundabout. Because of the large size of the truck, they could not go very fast – about 15 to 20 kilometres per hour as they approached the roundabout. Mr. Long advised the defendant that he would like to go to the casino for a few minutes, as he had never seen it and they had some time to kill. Consequently, they drove towards the casino. About half-way down the road, the defendant saw the unmarked car in the right side, rear view mirror, far away, close to the roundabout. They turned into the casino parking lot. It was extremely busy around 7 a.m. and the big truck took up a couple of parking spots, so they had to park far from the casino building.
17Mr. Sen got out on the passenger side and Mr. Long exited from the driver's seat. When they had walked about fifteen to twenty-five feet towards the casino, the defendant saw the officer. Mr. Long was ahead of the defendant who stopped to tie his laces when he saw the police vehicle in the parking lot. Because the officer could not find where they had parked, it took him about two and a half minutes to get to where they were.
18The officer exited his vehicle and called to Mr. Sen, who was about twenty-five feet from the truck. He asked for the defendant's driver's licence, insurance, etc. Mr. Sen advised he did not have his driver's licence, and the insurance and other documents were in the truck. The officer advised Mr. Sen that he was driving, to which the defendant replied, "I was not driving. There was another person, my driver. … I'm just fed up with you guys harassing me." The officer then received a phone call from an unknown party and said "Yes, I did get him … Sen." While this was going on, Mr. Long walked about two thousand yards ahead, as he was complaining that he had to get to the washroom.
19Mr. Sen testified that the police have been harassing him for approximately four and a half to five years. The defendant has been stopped by them when he has been with Mr. Long or his wife and his wife gets harassed every day. The police have brought similar charges against him before. He has never been convicted and went to court about a month earlier and was found not guilty.
20In cross examination, which took place over a year after the first day of these trial proceedings due to a significant illness of the defendant, Mr. Sen testified that the driver was at his home before 7:30am to start the vehicle and run the cleaning employees around. Usually the defendant starts earlier, about 6:30 or 7:00 am, but as a freelancer, he can go in when he wants.
21In examination in chief, Mr. Sen testified that his driver's name was Mr. Long. In cross examination, he said his name was Dave Lion or Lyon. Mr. Sen is not sure how to spell his name, as his wife always pays the driver. Mr. Sen re-iterated that the driver had never been to the casino, which is only a few minutes from the defendant's residence. The driver first brought up the idea of going there when they were at the roundabout.
22Due to the size of the truck and the fact that it is a dually, the vehicle could not be driven quickly around the roundabout. They were going about 7 kilometres per hour on Turnerbury, slowed to 4 kilometres per hour as they approached the roundabout and drove 2 to 3 kilometres per hour on the roundabout itself. Although Mr. Sen stated in examination in chief that they were travelling about 15 to 20 kilometres per hour on Turnerbury, in cross examination he insisted that they could not have driven that quickly, as this would have cause something to happen with the heavy dually motor vehicle.
23After they parked, Mr. Lyon got out of the vehicle first. Mr. Sen then changed his statement to say they both got out at just about the same time. At least 2 minutes later he saw the police officer come into the parking lot. As the officer approached, Mr. Lyon was standing to the left of Mr. Sen, about 300 yards from the truck. The officer said, "Mr. Sen.", to which he replied, "Yes, how can I help you?" He told the officer he was not driving and that the gentleman who was with him was driving. Mr. Lyon, who had gone ahead, returned when he saw the officer approach the defendant and said he was the one driving. Neither Mr. Sen nor Mr. Lyon gave the officer the driver's name. The officer told Mr. Sen he did not care and then got a phone call and said "Yah, I got Mr. Sen."
(d) Evidence of David Lyon
24Mr. Lyon testified that he had known Mr. Sen for the last 10 to 12 years. He first knew him through mutual friends and then was hired by the cleaning company to drive people around. His main duty was to do the driving, but he also did a bit of cleaning.
25Mr. Lyon lives about 45 minutes from Mr. Sen. His wife would drive him to Mr. Sen's house, usually arriving around 6:45 a.m. He cannot recall the name of the street where the defendant lives, but believes it may be "Courtney Street". When he arrived, the defendant's wife provided him with coffee, he retrieved the keys and started the truck to warm it up. Then he drove the defendant, who did not have a driver's licence, to work either in Bolton or Milton, as the defendant worked in two different places. Mr. Lyon stated that he was not involved in the work the defendant did. Instead, he would return to the defendant's house after dropping him at work and then pick up the women assigned for cleaning duties for the day. For the last year or two, he has not been working for Mr. Sen.
26On November 9, 2015, Mr. Sen did not have to be at work by 7:30 or 8:00 am. Therefore, they had an hour or two free. Mr. Lyon wanted to see the casino. As they drove in that direction, he started getting cramps and had to use the washroom. He drove around 50 kilometres per hour approaching the roundabout and then 30 to 40 kilometres per hour around it. He drove into the casino parking lot and parked at the end of the lot. He and Mr. Sen got out of the truck at the same time and walked towards the casino, with Mr. Lyon walking perhaps a bit ahead of Mr. Sen, as he was in a hurry to get to the washroom. He saw the officer in his cruiser.
27The officer stopped the defendant and told him he was driving and asked for the ownership, insurance and driver's licence. Mr. Lyon was several feet in front of Mr. Sen at that time, but he was able to tell the officer that he was the driver. After that, he proceeded into the casino, as he had a bowel infection and needed to get to the washroom. Mr. Lyon stated that at no time during the trip from the defendant's home to the casino was Mr. Sen in the driver's seat.
III. Submissions
(a) Defence Submissions
28The defence submits the evidence supports that Mr. Lyon was driving at all times. He worked for the defendant and drove him to work, then returned to assist the defendant's wife by driving the young women who worked in the cleaning business. On November 9, 2015, Mr. Sen did not have to go into work early, so they drove to the casino. Because of his bowel issues, Mr. Lyon had to hurry into the casino to go to the washroom.
29Although there is a big difference in the evidence of the speed they were going, with Mr. Sen saying it was 3 to 4 kilometres per hour and Mr. Lyon saying 30 to 40 kilometres per hour, this is not central to the issue in this trial. It also shows the two defence witnesses are not reading from the same script. Nonetheless, the rest of the defence witnesses' evidence corresponds.
30There is a big difference between the evidence of the defence witnesses and that of the police officer. The officer said he saw the defendant get out of the driver's seat. Therefore, the Court needs to do an assessment of credibility and cannot simply choose the police officer's or defence witnesses' evidence. The Court need not believe all of what the defendant says, but if part is believed and it raises a reasonable doubt, then the defendant is to be acquitted.
31The prosecution cross-examined both defence witnesses and neither was shaken or contradicted in his evidence. With respect to the entirety of the evidence, it is logical and makes common sense. One would have thought the police officer would have been interested in finding out who the other person was, but instead he said he did not care.
32Prior to the defendant's recent illness, Mr. Lyon had been working regularly with the defendant as his driver. It make no sense that if Mr. Lyon was available, as he was every day, why he would not be driving on November 9, 2015. Everything the defence has said is logical and reasonable and there is real doubt as to what actually happened in the parking lot. Therefore, the court should find the defendant not guilty.
(b) Prosecution Submissions
33The prosecution agrees that R. v. W.(D.) needs to be applied. The Court should rely on the officer as a trained observer and not consider the evidence of the defendant and Mr. Lyon. Officer O'Connor was very clear in his evidence and unshaken in cross-examination. There are too many discrepancies in the defence witnesses' evidence – the number of years they have known each other, the speed at which they were travelling, where Mr. Lyon was when the conversation between the officer and the defendant took place, what, if anything, was said about Mr. Lyon being the driver.
34The defendant was evasive. In examination-in-chief, Mr. Sen testified that Mr. Lyon had walked up over 2000 yards ahead to rush to the washroom while Mr. Sen stopped to tie his laces. When asked if he told the officer someone else was driving, he told the officer he was not driving and that there was another person, his driver. The officer did not answer that. In cross examination, the defendant advised that the officer replied, saying he did not care.
35At no time did Mr. Sen ask his witness, the one person who could have gotten him out of this situation, to provide his name or talk to the police officer. The prosecution submits that is because the defendant was driving and the court should find him guilty.
IV. Relevant Legislation
36Subsection 53(1) of the HTA reads:
Driving while driver's licence suspended
53 (1) Every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,
(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and
(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,
or to imprisonment for a term of not more than six months, or to both.
V. Findings and Analysis
37There is no dispute that it was November 9, 2015, around 7:00 a.m. Mr. Sen was in his wife's pick-up truck as it drove from his residence at 69 Silverwood Circle in Ajax, to the nearby Ajax casino parking lot at 50 Alexander's Crossing. The suspension of Mr. Sen's driver's licence was still in effect that day.
38Durham Regional Police Officer O'Connor testified that he observed Mr. Sen exit the driver's side of the motor vehicle and there were no other occupants in the vehicle. Mr. Sen and Mr. Lyon testified that Mr. Lyon was the driver and at no time was Mr. Sen in the driver's seat of the pick-up truck.
39As issues of credibility have arisen, I have considered the general guideline regarding credibility as set out by Justice Cory, writing for the majority in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. It provides:
(1) If I accept the evidence of the defendant as it is a complete denial of an essential element of the offence, I would dismiss the charge;
(2) Further, even if I did not accept the defence evidence, I would have to go on to consider whether or not it raised a reasonable doubt and, if so, again, I would dismiss the charge;
(3) It would be only if I rejected the defence evidence as there was convincing credible evidence that it was untruthful or unreliable, that I would go on to the third step in R. v. W.(D.) and consider all of the un-rejected evidence in this matter, to ensure there was evidence that I did accept that established the defendant's guilt on the charge before the Court beyond a reasonable doubt.
40These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, that the burden rests on the prosecution throughout to prove that guilt, and that there is a very high burden to establish the defendant's guilt. I am also cognizant of the prohibition against turning this into a credibility contest between the officer and the defendant and simply accepting the evidence of the officer, thereby necessarily rejecting that of the defendant. I have given all of the evidence fair consideration.
41I have applied the principles in R. v. W.(D.), supra. The officer's evidence was straight forward and consistent, except for misstating Turnerbury Avenue as Kerrison Drive in his notes. Realizing what he had done, he corrected himself in his viva voce evidence. He also informed the Court that at Kerrison Drive, Turnerbury Avenue changes names to become Alexander's Crossing on the other side of the roundabout.
42On many occasions, the defendant gave differing evidence on the same issue. As well, there were differences between the evidence of Mr. Sen and that of Mr. Lyon. I note the following inconsistencies:
In examination-in-chief, Mr. Sen advised that his driver's name was Mr. Long. In cross-examination, he stated it was Mr. Lion or Mr. Lyon. Despite being a partner in the cleaning business, which would have kept accounting books and paid Mr. Lyon regularly over the years, Mr. Sen did not seem to know and was unable to spell Mr. Lyon's name.
Mr. Sen testified that he had known Mr. Lyon for 6 to 7 years. Mr. Lyon testified that he has known the defendant at least 10 to 12 years.
Mr. Sen testified that Mr. Lyon does quite a lot of custom upholstery for antique car restorations and that is how he got to know Mr. Lyon. Mr. Lyon advised that he is not involved in the work Mr. Sen does in the automotive restoration industry and had met Mr. Sen through mutual friends.
In examination-in-chief, Mr. Sen advised that they travelled at a rate of speed of about 15 to 20 kilometres per hour around the roundabout. In cross-examination, his testimony changed, as he was adamant that they drove at about 7 kilometres per hour on Turnerbury, slowing to 4 kilometres per hour approaching the roundabout and proceeding 2 to 3 kilometres per hour around the roundabout. It was Mr. Lyon's testimony that he drove about 50 kilometres per hour approaching the roundabout and 30 to 40 kilometres driving around it.
In examination-in-chief, Mr. Sen stated that he had walked only about 15 to 25 feet towards the casino when he saw the police officer. He was about 25 feet from the truck when the officer approached him to ask for his documents. In cross-examination, he testified that the officer did not come into the parking lot until at least 2 minutes after they had parked the truck and the conversation with the police officer took place about 300 yards from the truck.
In examination-in-chief, Mr. Sen said Mr. Lyon had walked about 2000 yards ahead of him as Mr. Lyon was in a hurry to get to the casino washroom, while Mr. Sen stayed back to tie his laces. To put this into proper perspective, I note that there are just over 1093 yards in a kilometre and, hence, Mr. Lyon would have gone almost 2 kilometres ahead of Mr. Sen in a relatively short period of time. This 2000-yard distance also would have put Mr. Lyon well beyond the casino building.
Mr. Sen further advised that he told the officer there was another person who was driving, but did not give the other person's name, nor was that person nearby at the time, as Mr. Lyon was 2000 yards ahead of him. In cross-examination, the defendant's evidence changed, as he advised that Mr. Lyon was standing to his left when the officer approached. This later changed again to Mr. Lyon being maybe 300 yards ahead and Mr. Lyon came back to tell the officer that he was the one driving. In Mr. Lyon's evidence, he stated he was several feet in front of Mr. Sen and was close to him at the time the officer approached. Furthermore, he was sufficiently close to Mr. Sen when the officer approached to tell the officer, himself, that he was the driver.
It was Mr. Sen's testimony that about 2 minutes had passed and they were perhaps only about 25 feet from the truck when the officer approached them. In cross-examination, he stated that the conversation with the police officer took place about 300 yards from the vehicle. Also, despite needing to urgently get to the washroom, Mr. Lyon was ahead of the defendant, but returned to speak to the police officer.
In examination-in-chief, upon being approached by the officer, Mr. Sen stated, "No, I was not driving. I'm just fed up with you guys harassing me." In cross-examination, his reply to the officer was, "Yes, how can I help you?" and then advised he was not the one driving.
When asked, Mr. Sen testified that he got out of the truck first. He then changed his testimony, stating both he and Mr. Lyon got out at the same time.
Although Mr. Lyon had been a driver for both Mr. Sen and his wife's cleaning business for quite some time, when asked where Mr. Sen lived, he could not recall the name of the street. He thought it might have been something like "Courtney Street". [Note: Mr. Sen lives on Silverwood Crescent.]
Mr. Sen testified that he worked at SN Diesel, which is located near Canada's Wonderland. Mr. Lyon's evidence was that he drove the defendant either to Bolton or Milton, as he worked in two locations.
43There are inconsistencies within Mr. Sen's evidence. There are inconsistencies between Mr. Sen's and Mr. Lyon's evidence. There are simply too many inconsistencies for me to rely on the defence evidence regarding what had transpired and who was driving the pick-up truck the morning of November 9, 2015. I accept that some individuals are not very good at estimating concepts such as time, distances and speeds. However, the discrepancies in Mr. Sen's evidence, as well as differences in evidence between Mr. Sen and Mr. Lyon are striking. They go beyond these concepts, for example, in examination in chief when Mr. Sen stated that when the officer approached him, Mr. Lyon was not nearby, but changed his statement in cross examination to say that Mr. Lyon was standing to his left and changed his evidence again to say Mr. Lyon was about 300 yards ahead of him but came back to advise the officer that he was the driver. The evidence of the two defence witnesses is so inconsistent that it is not unreasonable to doubt whether Mr. Lyon was even there that day. I am not satisfied, based on the numerous discrepancies in the defence evidence, that I can rely on evidence that places Mr. Lyon as the driver of the pick-up truck the morning of November 9, 2015.
44After not accepting this contradictory defence evidence, it does not raise a reasonable doubt. Instead, looking at the evidence of who was driving the pick-up truck that I do not reject as untruthful or unreliable, I am left with the unwavering evidence of Officer O'Connor, who testified that Mr. Sen was driving the pick-up truck the morning of November 9, 2015.
45Considering all of the un-rejected evidence, I am satisfied that the defendant's guilt has been established beyond a reasonable doubt. I find that on November 9, 2015, around 7:00 in the morning, Mr. Sen, not Mr. Lyon, was driving his wife's pick-up truck from his residence on Silverwood Circle to the parking lot of the Ajax casino, located on Alexander's Crossing. Mr. Sen is well aware and there is no dispute that his licence was suspended at the time. Exhibits 1 and 2 are certified documentation from the Office of the Registrar of Motor Vehicles that I am satisfied relate to the defendant, to further support the suspension of his driver's licence.
VI. Conclusion
46I have carefully considered all of the evidence. Credibility issues have arisen and I have applied the principles found in R. v. W.(D.), supra. I am satisfied that all of the elements of the offence of driving a motor vehicle on a highway while his driver's licence was suspended have been made out beyond a reasonable doubt. On November 9, 2015, around 7:00 a.m., Mr. Sen drove a motor vehicle, that being his wife's pick-up truck. He was on a highway, from his residence on Silverwood Circle to the casino on Alexander's Crossing in Ajax. At that time, his driver's licence was suspended, as is evidenced by Exhibits 1 and 2, as well as viva voce evidence of Police Officer O'Connor and Mr. Sen, himself.
47I find Mr. Sen guilty of driving while his licence was suspended, contrary to subsection 53(1) of the HTA. There will be a conviction registered. I will hear submissions from the parties with respect to penalty.
Released: July 16, 2018
Signed: Justice of the Peace M. Coopersmith