Date: 2020-02-11

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended

Between:

Suzanne Huffman

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION

Panel: Jennifer Friedland, Member

Appearances:

For the Appellant: Suzanne Huffman, Appellant

For the Respondent: Stephen Grootenboer, Agent

Place and date of hearing: By teleconference, January 10, 2020

REASONS FOR DECISION

Overview

1The appellant appealed the impoundment of her 2009 Dodge Journey (the “vehicle”) which was detained and impounded on December 2, 2019 as a result of being driven by a person whose licence was subject to a criminal code suspension.

2Following a hearing on January 10, 2020, I ordered the Registrar to release the motor vehicle on the basis that it was stolen at the time it was detained in order to be impounded. I wrote that reasons would follow. These are my reasons.

ISSUE ON APPEAL

3The appellant appealed the impoundment on the following grounds of appeal pursuant to s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”):

50.2(3) (c) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

50.2(3) (d) that the impoundment will result in exceptional hardship.

4Having found that the motor vehicle was stolen at the time it was detained in order to be impounded, it is unnecessary for me to consider the exceptional hardship ground.

FACTS

5The appellant’s 28-year old grandson (MD) was the person driving the vehicle at the time it was detained in order to be impounded.

6MD had been living with the appellant, his grandmother, for approximately six months at the time he took her vehicle. MD’s mother, JD, also lived with the appellant. JD described her son as having had difficulties in his life, including having gone to jail in the past.

7MD’s licence had initially been suspended under the criminal code in 2014 for impaired driving. It was subsequently suspended in 2015 for failing to complete a remedial program. MD was still a suspended driver at the time the vehicle was detained in order to be impounded.

8Both the appellant grandmother and JD testified that MD did not have permission to drive his grandmother’s vehicle. Further, he had never driven her vehicle prior to the date in question.

9On that date, December 2, 2019, MD went into his grandmother’s bedroom while she was asleep, napping. Her car keys were in her purse, which was beside her on the bedside table. MD entered his grandmother’s room, took the car keys from her purse and then left with her car. He was stopped sometime later and found to be driving while suspended.

10After the incident, the appellant said that she did not have the heart to press charges against her grandson; however, she stated that she probably should have. What she did, instead, was to not allow her grandson to live with her anymore. He then moved into a homeless shelter, according to his mother, but is now currently incarcerated on unrelated charges that arose some weeks later.

11In cross-examination, the appellant stated that her grandson likely knew she kept the keys in her purse. When asked if she thought he intended to bring her car back, she stated that she thought he would have brought it back.

LAW anD ANALSYIS

12The word “stolen” is not defined in the Act.

13In the Criminal Code of Canada, “to steal” is defined as “to commit theft.” The offence of theft is then described at s. 322 as follows:

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

14The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act:

[W]hen it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

15In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities. This is less than the criminal burden of proof beyond a reasonable doubt.

16The registrar submits that the appellant’s grandson’s actions did not amount to theft on the basis that he was related to the appellant, knew where the keys were, would likely have returned the car, and the appellant did not seek to press charges against him.

17In my view, the above facts, even if accepted, do not determine the issue.

18This Tribunal has often held that a vehicle can be found to have been stolen in an impoundment context even where the appellant has not sought to lay charges; particularly in cases where the purported thief is related to the owner, or the wrongfulness of the driver’s actions is conveyed in some other fashion, for example, by firing the person in the employment context. In this case, I find that not letting MD return to her house after he took her car supports the appellant’s claim that the taking amounted to theft.

19With respect to knowing where the keys were, I cannot agree, in the circumstances of this case, that this is relevant to the issue of whether the appellant’s car was stolen. Knowing where an item is kept does not absolve a person from theft if they take the item fraudulently and without colour of right. Here, I find it reasonable that MD would know that his grandmother’s car keys were in her purse. This did not authorize him to sneak into her bedroom while she was sleeping, take her keys from her purse, and drive off with her car.

20As for the appellant’s assumption that her grandson would likely have returned her car, this also does not determine the issue. Although the offence of joyriding under section 335(1) of the Code may capture some cases where a vehicle is taken without consent but where the driver intended to return the vehicle, this does not mean that such cases cannot also amount to theft.

21This issue was addressed by the Supreme Court of Canada in the case of Lafrance v. The Queen 1973 CanLII 35 (SCC), [1975], 2 S.C.R. 201. In that case, Martland J., held that it is was an error in law for the trial judge to have held that because the accused intended to return the vehicle, he could not have intended to commit theft.

22In Lafrance, the appellant was with two friends, one of whom took a car that was parked with its keys in it at a motel. They all drove around in the car for a time. At the end of the night, the others were dropped off and the appellant was left with the car. He stated that he planned to drive around a little longer and then return the vehicle to the motel. He was stopped by the police along the way and charged with theft. At trial, he was acquitted on the basis of his intention to return the vehicle, and because the offence of joyriding was not an included offence. The Court of Appeal overturned the acquittal and entered a conviction. The Supreme Court of Canada upheld the conviction, Martland J. stating:

I agree with the Court of Appeal that all of the elements of theft, as defined in s. 269 [now s. 322], were established in this case. The taking was intentional, under no mistake and with knowledge that the motor vehicle was the property of another. In my opinion this made the taking fraudulent: see R. v. Williams, [1953] 1 Q.B. 660 at p. 666. The appellant took the vehicle without colour of right and deprived the owner of it temporarily.

The learned trial Judge erred in law in holding that because the appellant intended to return the motor vehicle he could not have intended to commit theft within s. 280, but could only have been charged under s. 281 [the joyriding provisions] …

23Thus, even if the appellant is correct that MD would likely have returned her car, this does not absolve the driver of theft if the other elements of the offence are made out. In this case, I find that they were. MD took the appellant’s vehicle, without colour of right, and deprived the owner of it. Whether his intention was to deprive her of it temporarily or permanently is not the determining factor in my analysis. It is the circumstances of the taking in this case that compel me to find that the car was stolen within the meaning of the Act.

CONCLUSION

24On the evidence heard before me, I am satisfied, on a balance of probabilities, that the appellant’s vehicle was stolen at the time that it was detained in order to be impounded. The facts that persuade me of this relate to how the suspended driver acquired the appellant’s keys, in particular entering her room while she was asleep and taking her keys from her purse.

25On the above basis, pursuant to s. 50.2(5), I ordered the Registrar to release the appellant’s motor vehicle.

Licence Appeal Tribunal

Jennifer Friedland, Member