ONTARIO COURT OF JUSTICE DATE: 2022 03 22 COURT FILE No.: Brampton 21-8832

BETWEEN:

HER MAJESTY THE QUEEN

— and —

LENNY ALEXANDRE

Before Justice M.M. Rahman

Heard February 18, 2022

Reasons for judgment March 22, 2022

Joshua Ng....................................................................................... counsel for the Crown Douglas Lent................................................................... counsel for Lenny Alexandre

RAHMAN, J.:

1. Introduction

Introduction

1The defendant, Lenny Alexandre, is charged with operating a conveyance while prohibited. The events giving rise to the charge are quite simple and can be summarized in the following few sentences. A police officer pulled over a white Chevrolet Blazer on March 5, 2021. The officer had run a query on the car’s license plate, learned that the registered owner was not allowed to drive, and noticed that the driver matched the approximate age of the owner. During the traffic stop, the officer identified the driver with an Ontario Health Card, which had a photo matching the driver. The name and date of birth on the driver’s health card matched the name the officer had queried earlier on CPIC. The officer issued an appearance notice to the driver, which the driver signed.

2The Crown alleges that the driver whom the officer pulled over was the defendant, Lenny Alexandre. The Crown alleges that Mr. Alexandre’s license was suspended at the time and that this suspension resulted from Mr. Alexandre’s conviction for driving with excess blood alcohol on November 21, 2019.

3The defence says that the Crown has failed to prove that the driver was Mr. Alexandre because the arresting officer did not point to, or otherwise identify, Mr. Alexandre in court. The defence also says that the Crown has failed to prove that Mr. Alexandre’s license suspension was the kind of restriction captured by s. 320.18(1)(b) of the Criminal Code. Finally, the defence argues that the Crown must prove that the defendant was not registered in an ignition interlock program, as an element of the offence, since registration in such a program absolves a driver of committing the offence . [1]

4These reasons explain why I have found that the Crown has proven the charge against Mr. Alexandre beyond a reasonable doubt.

2. Mid-trial admissibility ruling

Mid-trial admissibility ruling

5Before explaining why the Crown has proven the charge against Mr. Alexandre, I will explain my reasons for making a mid-trial ruling about the admissibility of Ontario Ministry of Transportation (MTO) documents that the Crown relies on to prove its case. [2]

6After Cst. Litwin was finished testifying, the Crown sought to enter several documents. The first item was a certified copy of the information and prohibition order proving that Mr. Alexandre was convicted of driving with excess blood alcohol on November 21, 2019. The defence took no issue with the admissibility of these documents (collectively Exhibit 2). However, the defence did oppose the admission of several pages of MTO records. The Crown tendered photocopies of several pages of records. After hearing argument on whether these documents were admissible, I ruled that they were because they met the requirements of admissibility under the provincial Highway Traffic Act (HTA). [3]

7The Crown sought to admit the MTO records under ss. 24 and 28 of the Canada Evidence Act (CEA) and s. 210(7) of the HTA. Crown counsel ultimately focussed on the latter route of admissibility. The Crown argued that there is no requirement that the documents contain an original seal or signature from an MTO official. The Crown also characterized the package of MTO documents as “statements,” relying on the Court of Appeal’s decision in R. v. Becker Bros. Trucking Inc., 2021 ONCA 654 [4]

8Mr. Lent argued that the photocopies were not admissible because, at the very least, any copied documents required an original cover page. He says that the s. 210(7) of the HTA does not permit the admission of photocopies, and that an original certification must attach to such documents. Mr. Lent did not seem to take issue with the use of s. 210(7) as a route of admissibility, had the documents been “originals.” As I understand the defence’s objection, had these documents been “originals” (i.e. containing an embossed seal) there would have been no issue that they would be admissible.

9The records being tendered, on their face, meet the requirements of s. 210(7). They are documents with a seal and the signature of an MTO official. Some of the documents contain information on the very page containing the signature and seal, while some have documents attached to the page with the signature and seal. The dispute about the admissibility of the photocopied MTO documents is really about their authenticity. The authenticity of a document concerns whether it is what it purports to be. I ruled that the documents were admissible because I was satisfied that the documents are what they purport to be and that nothing in s. 210(7) prevents the introduction of photocopies.

10While the documents here do not bear an embossed seal, it is clear to me that they are copies of MTO documents that are the kind contemplated by s. 210(7). There is no suggestion that they have been doctored or tampered with. I see nothing in the provision that prohibits the entry of copies of these documents. Indeed, s. 210(8) of the HTA allows for the admission of documents where the signature is “a n original signature or an engraved, lithographed, printed or otherwise mechanically or electronically reproduced signature or facsimile signature.” Similarly, s. 210(9) of the HTA says that the seal “may be affixed by impression or may be an engraved, lithographed, printed or otherwise mechanically or electronically reproduced seal or facsimile of a seal.”

11The fact that both the seal and signature may be mechanically reproduced or printed suggests that the MTO documents need not have any special kind of seal, nor must they bear an original signature. The fact that they may be photocopies of original documents should not affect their admissibility. As mentioned above, the question here is one of authenticity. Are the photocopied documents what they purport to be? In my view the use of a photocopier does not affect the authenticity of the documents. When I examine the documents, I am satisfied that they are what they purport to be. That is to say, I am satisfied that they are copies of documents produced by the MTO. And those documents are admissible under s. 210(7) of the HTA.

12The use of photocopied documents, in some circumstances, may be problematic, such as where the copies are of poor quality or some important feature of the original document is unclear or invisible on the copy. In 2022, reproducing documents using photocopiers, or scanners hooked up to computers, has never been easier. Long gone are the days when Xerox was a verb and original documents had to be produced in court with an inked signature. Now, documents are transmitted electronically by one person and printed by another. The use of a photocopier does not affect the reliability of the evidence. Our law has gradually moved away from accepting technical barriers to the admissibility of evidence where those technical barriers have no impact on the reliability of evidence. Or, as in this case, the authenticity of a document. As my colleague ODonnell J. observed in R. v. Hamzehi, 2015 ONCJ 95, when considering the meaning of a “true copy,” there is little question that photocopies are true copies of original documents. Though ODonnell J. was dealing with a different issue (the service of a true copy), the following comments are apposite to the admissibility of the photocopies in this case:

I suspect that if the “man on the Clapham omnibus” were aware that ink was being spilled on this issue after deep legal consideration had been given to the point, he might wonder precisely what goes on in courthouses or precisely what is in their water supply. The man on the Clapham omnibus or the woman wending her way home through construction dust on the Finch West bus past this courthouse both understand the functioning of photocopiers. When I dismissed Mr. Daley’s objection to the admission of the certificate in light of Mr. Hamzehi having been served a photocopy of it, I knew as well as the lady on the bus that it was the right answer, but the luxury of time has allowed me to consider just how much authority there might be on the point. I do not propose to linger long on the point since the lady on the bus pays my salary, which is undoubtedly much greater than hers, and she could reach the conclusion that a “photocopy” is a “true copy” before her bus had travelled the length of this handsome courthouse, but a rather quick search to determine what sharper and more sophisticated legal minds than mine have had to say on the point led me to the opinions of a jurist in Peel Region by the name of Hill, J. in a case called R. v. Naidu and to a trio of similarly learned gentlemen named O’Connor, Catzman and Moldaver, JJ.A. whom I recall as having been one-time occupants of a magnificent building at the corner of University Avenue and Queen Street that I myself frequented in a previous life. Each of them has moved on from their then positions, one of them tragically early. [5]

13I had no concern in this case that the copies of documents containing the official seal and signature of the MTO official contained reliable information about the driving record of Lenny Alexandre. The documents filed by the Crown are what they purport to be. Their authenticity has been established. They are admissible under s. 210(7) of the HTA.

14I will now turn to the issues raised on the merits of the charge.

3. Has the Crown proven that the defendant was the driver?

Has the Crown proven that the defendant was the driver?

15Mr. Lent says that the Crown has failed to prove the person before the court was the driver that Cst Litwin pulled over. Mr. Lent says that the officer did not point out, or otherwise identify, the defendant as being the person whom he stopped. He maintains that the witness’ failure to identify his client in court means that the Crown has failed to prove identity beyond a reasonable doubt.

16I cannot accept that the mere failure of the officer to point at the defendant in court is fatal to the Crown’s proof of identity. The circumstantial evidence in this case proves beyond any reasonable doubt that Mr. Lent’s client was the driver whom Cst. Litwin pulled over.

17Certain rituals that take place in court become so familiar and predictable that their absence becomes noticeable and, to some, significant. The in-dock identification, where a witness points to the accused person, is one such ritual. It is so well-known that anyone who has seen a TV or movie depiction of a criminal trial is likely familiar with it. But its familiarity does not equate to its necessity. Like any other element of an offence, identity need not be proven by direct evidence. As the Alberta Court of Appeal observed over three decades ago, the requirement for an in-court identification is a myth and is not the only way the Crown can prove identification:

The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integral part of the criminal process. This is a myth. That the Crown often relies upon such evidence should not permit us to think that a dock identification is a ritual as essential to a criminal trial as, say, the reading of the charge. The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact-in-issue, can be proved in many different ways. [6]

18In this case, Cst. Litwin said that he issued an appearance notice to the driver, whom he stopped and identified with government-issued photo identification. The name on the identification matched the name of the registered owner whom he had earlier queried. That name was Lenny Alexandre. [7] The Crown entered a copy of the appearance notice issued to Lenny Alexandre as an exhibit. That appearance notice matches the one attached to the information on which the defendant was arraigned and which is the subject of the trial. [8] I cannot accept Mr. Lent’s submission that the court cannot consider a defendant’s arraignment when determining the issue of identity. Defendants who appear before the court are not simply nameless bodies before someone identifies them by name. Before being arraigned, the clerk of the court asked the defendant to state his name to which he responded, “Lenny Alexandre.” A defendant who identifies himself, as Mr. Alexandre did in this case, can be properly regarded as being that person with that name. [9] That, together with the above-mentioned evidence about the appearance notice, establishes that the defendant, Lenny Alexandre, was the driver Cst. Litwin dealt with. [10]

4. Has the Crown proven that Mr. Alexandre’s license was suspended on March 5, 2021 because of a criminal offence?

Has the Crown proven that Mr. Alexandre’s license was suspended on March 5, 2021 because of a criminal offence?

19The offence of driving while prohibited set out in s. 320.18(1)(b) of the Criminal Code requires that a defendant be prohibited from driving because of a restriction imposed either under federal law, or under a provincial law “in respect of a conviction under” the Criminal Code. A license suspension arising strictly from the operation of provincial law without any connection to the Criminal Code is not an offence under this provision.

20Mr. Lent does not take issue with the fact that his client’s license was suspended. However, he says that the Crown has failed to prove that his client’s license suspension is connected to a criminal conviction. He makes two arguments, one factual, the other legal.

21First, Mr. Lent says that the evidentiary record regarding the suspension is unclear. He relies on certain pages of the MTO records to suggest that the Crown has failed to prove that his client’s license was suspended on March 5, 2021 because of the November 2019 conviction. Mr. Lent points to pages 1 and 10 of Ex. 3 which appear to suggest that Mr. Alexandre’s license was suspended due to unpaid fines. He also says that the reference to s. 46 of the HTA on page 2 of the exhibit suggests that the suspension is not connected to a Criminal Code offence. He also points to page 7 of the exhibit (with the heading “conviction report”) which he says is unclear about the term of, and reason for, the license suspension. He says that page 9 adds further ambiguity to the reason for the suspension. He says that the documents are unclear about whether the suspension is the result of unpaid fines or due to the over 80 conviction.

22Second, Mr. Lent urges a restrictive interpretation the words “in respect of a conviction” under the Criminal Code. Mr. Lent argues that any disqualification here is not sufficiently connected to Mr. Alexandre’s 2019 Criminal Code conviction to fall within the definition of a “legal restriction…in respect of a conviction” under the Criminal Code. In making this argument, Mr. Lent relies on the Saskatchewan Provincial Court’s decision in R. v. Nanapay, 2014 SKPC 103, [11] and the dissenting reasons of Wittmann J.A. in the Alberta Court of Appeal’s decision in R. v. Clark, 2000 ABCA 246. [12] Those decisions say that a license suspension which exists only because someone has not had their license reinstated (after the original suspension period has expired), is not sufficiently connected to the criminal conviction. The continuing suspension is therefore not “in respect of” a criminal conviction.

23I cannot accept either Mr. Lent’s factual or legal arguments. First, there is no ambiguity or doubt about why Mr. Alexandre’s license was suspended. The fourth page of Exhibit 3 makes clear that on March 5, 2021, Mr. Alexandre’s license was suspended because of his conviction for driving with excess blood alcohol on November 21, 2019 and, “that the said suspension was in effect on the 5 th day of March 2021.” Though the records establish that Mr. Alexandre faced a suspension on November 12, 2020 for unpaid fines, that does not change the fact that his license remained suspended because of the over 80 conviction from 2019. The records simply establish that a new suspension was imposed a year after his conviction for a different reason. Although it is not necessary to look beyond page 4 of Exhibit 3, page 9 of the exhibit has an entry confirming that Mr. Alexandre’s license was suspended on November 21, 2019, the same day he was convicted of driving over 80. That suspension is listed as “indefinite.” While the driving record shows that the automatic administrative driver’s license suspension expired on November 30, 2019 (90 days after the offence date of September 1, 2019), there is no such entry showing a reinstatement for the November 21, 2019 suspension. This is apparent from comparing the suspension numbers for the two different suspensions. Moreover, the suspension number for the November 20, 2020 suspension is also different than any earlier suspensions.

24Further, I cannot accept Mr. Lent’s legal argument that the license suspension in this case is not “in respect of” a conviction under the Criminal Code. Paragraph 320.18(1)(b) makes clear that the legal restriction on a defendant’s license may arise under provincial law if the restriction is one that is “in respect of” a conviction of Criminal Code offence. As the Supreme Court observed in R. v. Barton, 2019 SCC 33, the phrase “in respect of” is “of the widest possible scope” and “probably the widest of any expression intended to convey some connection between two related subject matters.” [13] I cannot accept the reasoning in Wittman J.A.’s dissenting reasons in Clark. Rather, I prefer the reasoning set out in Picard J.A.’s reasons in Clark which recognizes that the steps taken to have one’s license reinstated after a criminally triggered suspension has expired are not merely administrative, but arise directly from the original criminal conviction. That reasoning was later adopted by this court in R. v. Estrada, [2014] O.J. No 4414 (C.J.) and R. v. Martinovs, 2013 ONCJ 752. [14]

25As mentioned above, the MTO records establish clearly that Mr. Alexandre’s license was subject to an indefinite suspension after his conviction on November 21, 2019. That suspension happened automatically under the HTA as soon as Mr. Alexandre was convicted of driving over 80. The MTO record which I referred to above says that his status on March 5, 2021 included a suspension because of that over 80 conviction. By any reading of the broad phrase “in respect of,” Mr. Alexandre’s license restriction falls within s. 320.18(1)(b).

5. Does the Crown have to prove the defendant is not registered in the interlock program?

Does the Crown have to prove the defendant is not registered in the interlock program?

26Subsection 320.18(2) provides that a person registered in an ignition interlock program does not commit an offence of operating a conveyance while prohibited. Mr. Lent argues that this subsection requires the Crown to prove, as an element of the offence, that his client was not registered in the interlock program. Relying on the Alberta Provincial Court’s decision in R. v. Liptak, [2009] A.J. No. 1271 (Prov. Ct.), [15] Mr. Lent argues that the Crown must prove that a defendant is not registered in an interlock program or that the car was not equipped with such a device.

27Mr. Lent’s argument ignores the way driving is regulated in Ontario. It also ignores how the ignition interlock program referred to in s. 320.18(2) works in this province. It is unlawful to drive in Ontario without a license. [16] There is no exception to this licensing requirement. People who successfully enrol in Ontario’s ignition interlock conduct review have their licenses reinstated. [17] When drivers convicted of impaired operation offences are permitted to drive again, because they enrol in the province’s interlock program, they are no longer prohibited from driving. Their licenses are no longer suspended. Rather, they drive with a restriction on their license. [18] By proving that Mr. Alexandre’s license was suspended on March 5, the Crown has also proven that he was not enrolled in an ignition interlock program. Had he been so enrolled, his license would have been reinstated, not suspended.

28Moreover, even if a person could drive with a suspended license, it is apparent that s. 320.18(2) creates a defence to the offence of operating while prohibited, and does not create an additional element of the offence. In this regard, Mr. Lent’s reliance on Liptak is misplaced. That case dealt with s. 259(4) of the Criminal Code, the predecessor to s. 320.18. The wording of the old provision contained the ignition interlock exception within the offence-creating provision. [19] The current offence of operating while prohibited is set out in s. 320.18(1) and the interlock exemption is contained in a separate subsection, 320.18(2). The language of subsection (2) refers to “an offence under subsection (1).” This makes it clear that the elements of the offence are exhaustively set out in s. 320.18(1). The defence provision is necessary because prohibition orders imposed under federal law (such as a prohibition order imposed under s. 320.24) remain valid court orders that operate independently of provincial highway traffic laws. Like other similarly worded provisions in the Criminal Code, it places an evidentiary burden on defendants to rely on the defence. [20] I adopt the reasoning of the Quebec Court of Appeal in Rondeau c. R., 2020 QCCA 1207 that s. 320.18(2) creates a defence or exemption that places an evidentiary burden on a defendant to show registration in, and compliance with, an ignition interlock program. [21] Like Mr. Rondeau, Mr. Alexandre did not avail himself of that exemption.

6. Conclusion

Conclusion

29I am satisfied beyond a reasonable doubt that Mr. Alexandre drove his car on March 5, 2021, while his license was suspended, and that the suspension was in respect of his conviction in November 2019 for driving over 80. He is guilty of operating a conveyance while prohibited.

Released: March 22, 2022 Justice M.M. Rahman

[1] The defence had also filed a Charter application, but abandoned it before closing submissions. [2] At the time I made my ruling, I explained that I reserved the right to provide written reasons on the issue. [3] Although the Canada Evidence Act (CEA) applies to proceedings under the Criminal Code, s. 40 of the CEA provides “that the laws of evidence in force in the province” apply to any proceedings “over which Parliament has legislative authority.” [4] R. v. Becker Bros. Trucking Inc., 2021 ONCA 654 at paras. 21-22. [5] R. v. Hamzehi, 2015 ONCJ 95 at para. 12. The “man on the Clapham omnibus” is a term used to describe the hypothetical ordinary reasonable person, coined by Collins M.R. in McQuire v. Western Morning News Company, [1903] 2 K.B. 100 at p. 109. [6] R. v. Nicholson (1984), ABCA 88 at para. 4. See also, R. v. Ouellette, 2005 ABCA 282 at para. 29; R. v. Philip, 2022 ABCA 39 at para. 28; R. v. Bretti, 2006 NSCA 49 at para. 5; R. v. Boulanger, 2019 ONSC 5669. [7] To be clear, I am not referring to this evidence as evidence that Mr. Alexandre was the registered owner. Nor am I referring to the querying of the driver by the officer on CPIC as evidence that Mr. Alexandre was prohibited from driving. I simply refer to it because the officer referred back to the query when he said what the name on the identification card said. [8] Nicholson, supra, at paras. 29-30; Boulanger, supra, at para. 17 (“ identification of the person before the court as the person who was charged is established if it is proven that the offender was given the documents compelling his attendance before the court."). [9] As my colleague Duncan J. observed in R. v. Tullah, 2016 ONCJ 774, at para. 5: “ An accused is expected to identify himself to the court either personally or by his counsel. In this case, the person accused is someone named Troy Tullah. A man stepped forward in answer to that name and answered to the charge. His identity as Troy Tullah the accused person was thereby established.” [10] See Bretti, supra, at para. 6, where the court used exactly this reasoning to explain why the evidence clearly established identity. [11] R. v. Nanapay, 2014 SKPC 103. [12] R. v. Clark, 2000 ABCA 246, leave refused, 2000 SCCA 560. [13] R. v. Barton, 2019 SCC 33, at para 72. [14] R. v. Estrada, [2014] O.J. No 4414 (C.J.) at para. 17; R. v. Martinovs, 2013 ONCJ 752 at para. 14 (“ there is no doubt that a provincially-imposed driver's licence suspension or restriction for failure to complete remedial measures is a disqualification within the meaning of s. 259 (5)(b)(i).”). [15] R. v. Liptak, [2009] A.J. No. 1271 (Prov. Ct.). [16] Subsection 32(2) of the HTA provides that, “ No person shall drive a street car on a highway unless he or she holds a driver’s licence.” [17] O. Reg. 287/08, Part IV, which creates the ignition interlock conduct review program, which is established for the purposes of subsection 320.18(2) of the Criminal Code. Section 26 provides that a person must have an ignition interlock device installed in their vehicle, “ within 30 days of the reinstatement of his or her driver’s licence.” That also means drivers can be registered in the program, but not have an interlock device installed in their car, since there is a 30-day grace period. [18] O. Reg. 287/08, s. 11(1). [19] Subsection 259(4) read as follows: “ Every offender who operates a motor vehicle…while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program …and who complies with the conditions of the program, [is guilty of an offence].” [emphasis added] [20] See for example s. 163.1(6) of the Criminal Code, which provides a “legitimate purpose defence” to child pornography offences. The provision places an evidentiary burden on an accused to raise the defence: R. v. Katigbak, 2011 SCC 48 at para. 56. [21] Rondeau c. R., 2020 QCCA 1207 at paras. 4, 6, and 8.