ONTARIO COURT OF JUSTICE
West Region
BETWEEN:
His Majesty the King
— AND —
Josiah, Kingsley
Before Justice of the Peace K Kellough
Heard on April 1, 2025
Reasons for Judgment released on July 29, 2025
S. Odem counsel for the prosecution
No appearance by or on behalf of Kingsley Josiah, even though notified of time and place; proceeding on an ex parte basis
JUSTICE OF THE PEACE K Kellough:
1On January 15, 2025, the defendant Kingsley Josiah was charged under Part III of the Ontario Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, with using a number plate upon a vehicle other than a number plate authorized for use on that vehicle, contrary to section 12(1)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 12, which provides:
Every person who, uses or permits the use of a number plate upon a vehicle other than a number plate authorized for use on that vehicle; is guilty of an offence and on conviction is liable to a fine of not less than $100 and not more than $1,000 or to imprisonment for not more than thirty days, or to both, and in addition the person’s licence or permit may be suspended for not more than six months.
2An ex parte trial was set for April 1, 2025. On that day, the defendant was paged and did not appear in the courtroom or online by zoom to address the charges. No one else appeared on his behalf.
3A review of the paperwork and procedural history of the matter was done, and the court considered section 54 of the POA, which reads:
Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,
(a) proceed to hear and determine the proceeding in the absence of the defendant;
or
(b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant.
4The court is satisfied that the defendant was personally served with a summons on the offence date of January 15, 2025. A first appearance date was set for March 18, 2025. No one attended to address the matter on the first appearance, and as a result an ex parte trial date was set for April 1, 2025.
5Given the relatively short period of time between the offence date and the ex parte trial date, the court inquired as to whether it would be reasonable to make any further efforts to engage the defendant by sending them a bench summons. The court was advised by the crown that following the incident the defendant was turned over to Canada Border Services Agency (hereinafter CBSA) for the execution of a deportation warrant. The crown advised that the defendant may no longer be in the country, but they had no way to confirm the information. The crown indicated it remained their intention to proceed with the prosecution.
6Accordingly, on April 1, 2025, the court exercised its discretion under section 54 of the POA and proceeded to hear and consider the proceedings in the absence of the defendant. The trial was conducted, and adjourned to May 20, 2025, for the court’s decision following the trial. On May 20, 2025, the court provided brief reasons on the record indicating that the evidence at trial failed to prove each of the essential elements of the offence beyond a reasonable doubt, and as a result the charge against the defendant was dismissed. The court noted that written reasons would follow. These are those reasons.
The Evidence
7Police Constable Waanders testified that she was dispatched to a motor vehicle collision on January 15, 2025, at Concession 8 and Side Road 10. She advised the offence took place in the jurisdiction of Bruce County. A tow truck operator had been called to the scene of single motor vehicle collision and in turn requested police attendance. PC Waanders advised that a 2009 black Hyndi motor vehicle had swerved off the roadway and had tipped over on its side. The tow truck operator had to place the vehicle in an upright position before the officer could see the licence plate. The officer advised that she “ran motor vehicle plates through dispatch and the plate came back unattached to a vehicle”. PC Waanders advised she also made inquires about Mr. Josiah with dispatch which is how she learned of the outstanding CBSA warrant.
8At the scene Mr. Josiah was asked to verbally identify himself which he did. He also provided the officer with an Ontario drivers license which satisfied the officer with respect to his identity.
9A voluntariness voir dire was conducted in relation to the brief conversation that the officer had with the defendant. The utterances of the defendant were ruled voluntary. Mr. Josiah advised the officer that he was driving the vehicle when it hit an ice patch and slid off the road. On learning that the defendant was operating the motor vehicle prior to the accident PC Waanders charged the defendant with the part III offence before the court.
10Following the evidence of the officer the crown sought a conviction for the charge before the court based on the viva voce evidence of the officer. The crown suggested that each of the elements of the offence were made out and there was no evidence to the contrary.
11The court asked the crown about the absence of any evidence relating to the actual licence plate number observed by the officer. The court also noted the absence of any certified copies of ministry documents under hand and seal of the Registrar of Motor Vehicles which would demonstrate that the plate observed was not authorized for use on the vehicle. In response the crown suggested that the court could rely upon the viva voce evidence of the officer; she conducted a “check” on the vehicle which showed the licence plate was unattached.
The Legislation
12A summary of the relevant sections of the HTA follows.
13Paragraph 12(1)(d) of the Act reads as follows:
Every person who, ... (d) uses or permits the use of a number plate upon a vehicle other than a number plate authorized for use on that vehicle; ... is guilty of an offence...
14The terms "highway", "Ministry" and "vehicle", which are relevant to the offences described above, are defined in subsection 1(1) of the Act as follows:
'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, 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;
'Ministry' means the Ministry of Transportation;
'vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car.
15The word "number", relative to the term "number plate" as contained in the text of paragraph 12(1)(d) of the Act, is defined in subsection 6(1) of the Act, as follows:
'number', when it is used in relation to a permit or plate means a number, a series of letters or a combination of letters and numbers....
16The following subsections of section 7 of the Act are relevant to the offence created by paragraph 12(1)(d):
7(7) The Ministry may issue a permit of any prescribed class, number plates and evidence of validation to any person who meets the requirements of this Act and the regulations;
7(8) The Ministry may authorize number plates in an applicant's possession for use on a vehicle.
17The provisions of subsection 210(7) of the Act pertaining to the admissibility of certified documentary evidence are relevant to this proceeding. 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 statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.
Analysis
18The offence before the court is a strict liability offence. The prosecution must prove the commission of the prohibited offence or the actus reus, by the defendant to the standard of proof beyond a reasonable doubt. The prosecution need not prove any intention or mens rea on the part of the defendant. Once the prosecution has proven the act was committed by the defendant, beyond a reasonable doubt, they will have met their burden of proof.
19Had the defendant been present for trial they would have had the opportunity to advance a defence of due diligence to show, on a balance of probabilities, that they had taken all reasonable steps to avoid the particular act, or that they reasonably believed in a mistaken set of facts, which if true would have rendered the act innocent.
20The court is left with the task of determining if the officer’s viva voce evidence concerning the licence plate, and the inquiry she made with dispatch are sufficient for the court to find that the defendant committed the act beyond a reasonable doubt.
21During the trial the numbers and letters appearing on the licence plate or “number plate” were never mentioned by the officer during her testimony. The officer advised that on checking with dispatch she was advised that the plate was unattached to a vehicle. The court did not have any credibility issues with the officer’s evidence; the only real issue with her evidence was that it did not include certain necessary details.
22The crown seeks to rely upon hearsay evidence to prove that the licence plate was “unattached”. The officer received this information from “dispatch”. The court was not given any further detail about this information. It is unknown who the officer spoke with, what database that individual was using to access information, how current or accurate that database is, etc. There was no evidence before the court of any steps the officer took to verify the accuracy of the information they were provided from dispatch. The court is left without any means of assessing the credibility or reliability of this evidence.
23It may be common practice for officers to act or rely on hearsay provided by dispatch, as they execute their roles in our communities. The task of the crown is more complex: they must prove each of the essential elements of an offence beyond a reasonable doubt. Hearsay evidence is presumptively inadmissible in court: R v Bradshaw, 2017 SCC 35 at page 1. The challenges posed by hearsay to the law of evidence were outlined by the Supreme Court of Canada in Bradshaw:
Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial’s truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.]1
24Hearsay may be admitted into evidence, for the truth of its contents, if it falls into one of the following exceptions to presumptive inadmissibility, these being: statutory exceptions, common law exceptions, or principled exceptions. The Supreme Court of Canada in R. v. Mapara, 2005 SCC 23, at para. 15, set out the following framework for considering the admissibility of hearsay evidence:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire
25Typically, in cases such as this the prosecution will tender as an exhibit a document certified by the Registrar of Motor Vehicles of the Province of Ontario. Absent evidence to the contrary, section 210(7) of the HTA allows the court to receive such a document into evidence as proof of the information contained therein. The document is described as a “Plate by Date” search and will contain relevant details derived from the records of the Ministry of Transportation relative the Ontario licence plate in question as of a particular date. Details on the document would show: the search date, the licence plate number, who the plate was registered to, the vehicle identification number (V.I.N.), and whether the plate is attached, or unattached.
26The court did not hear evidence relating to the letters and numbers appearing on the number plate in question. Nor did the court receive any certified documentary evidence under the hand and seal of the Registrar of Motor Vehicle. Given this absence of evidence the crown has failed to establish the charge on a prima facie basis. As the court is not satisfied that there is some evidence of each of the essential elements of the offence, it is not possible to find that the prosecution has proven this charge beyond a reasonable doubt.
27The charge against Mr. Josiah is dismissed.
Released: July 29, 2025
Signed: Justice of the Peace K Kellough