Janine Estelle Levac v. Registrar of Motor Vehicles, 2020 CanLII 35507

Licence Appeal Tribunal

Date: 2020-05-21

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:

Janine Estelle Levac Appellant

and

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION

Panel: Jennifer Friedland, Member

Appearances:

For the Appellant: Self Represented For the Respondent: Sonia De Santis, Agent

Place and date of hearing: By teleconference, April 17, 2020

Overview

1This was an appeal of a motor vehicle impoundment heard by teleconference on April 17, 2020. Following the hearing, I ordered the Registrar to release the appellant’s motor vehicle pursuant to s. 50.2 (5) of the Highway Traffic Act (the Act) on the grounds that the motor vehicle was stolen at the time it was detained in order to be impounded. I indicated in my Order that written reasons would follow. These are my reasons.

Issue

2An owner whose car is impounded under s. 55.1 has limited grounds to appeal the impoundment. These grounds are set out in section 50.2 (3) of the Act.

3The appellant appealed on the following two grounds:

50.2(3) (c) 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.

Result

4For the reasons given below, based on the evidence before me at the hearing, I was satisfied, on a balance of probabilities, that the car was stolen at the time it was detained in order to be impounded. On that basis, I ordered the Registrar to release the vehicle from the impoundment following the hearing on April 17, 2020.

5Given this conclusion, it was unnecessary for me to consider the exceptional hardship ground.

Facts

6The appellant’s motor vehicle was impounded on March 9, 2020 for 45 days under s. 55.1 of the Act. This provision allows a police officer to detain and then impound a motor vehicle if the driver’s licence is under suspension for a criminal code-related reason. In this case, the driver was the appellant’s on-again / off-again boyfriend, SJ, whose licence had been suspended since 2013 following a dangerous driving conviction.

7SJ suffered from an addiction to crystal methamphetamine. His official address was a homeless shelter. The appellant and SJ had a child together who was 9 years old and lived with the appellant and the appellant’s other child, a 16-year old. According to the appellant, whose evidence I accept, SJ regularly stayed with the appellant at her home, but just as regularly disappeared for days due to his drug addiction. He did not have a key to the appellant’s house.

8The appellant knew that SJ had not had a valid driver’s licence for many years. He had no permission to take her car and had never taken it in the past, nor was there any evidence that he had ever asked to take it. The appellant kept her keys to the car in a bowl on the kitchen table. She testified that she had no reason to suspect that SJ would ever take the keys and drive off with her car.

9SJ had not been at the appellant’s house the night before the incident or that morning. The appellant was not working that day and was on the couch in the room off of the kitchen with the TV on. She testified that her older daughter was at work and her younger child was at the neighbour’s. She believes she may have been asleep when the appellant entered, as she recalls being woken by her phone when the police called to let her know that her car was being impounded. Whether she was asleep or falling asleep, I accept her evidence that she did not hear SJ enter her house, and she did not know that he had taken her keys and her car, until the police informed her of this fact.

10The appellant suspects that the front door had been left open by her daughter, and that is how SJ gained entry.

11The appellant spoke to SJ following this event to ask him why he had taken her car. He told her that his bicycle had been stolen the night before and he needed to get to the scrap yard because he had wires to sell. The appellant surmised that if SJ had not been pulled over by the police, he would have bought drugs with the money he got from selling the scrap. She does not know what he would have done next. She thought it possible that he would have disappeared with her car.

12The appellant explained that SJ taking her car was the end of their relationship. She packed his belongings in a duffel bag and has not spoken to him or seen him since nor has he been back to her house. She testified that she does not currently know where he is.

13The appellant testified that she spoke to the officer who pulled SJ over on two occasions. The first when he called to tell her about the car being impounded, the second when he delivered the notice of impoundment to her. She says she asked him to have SJ charged with theft but the police officer said that he could not charge SJ because SJ lived with the appellant. The appellant testified that she thought that SJ could still have been charged since his actual address was a shelter downtown. The officer was not called as a witness at the hearing and I have no basis to disbelieve the appellant when she says she would have liked to see SJ charged with theft.

14The appellant was cross-examined on her knowledge of SJ’s intentions. The Registrar’s suggestion was that the appellant would have known SJ was going to use her car that day, that he possibly loaded his car with the scrap from her house, and that she acquiesced to his using her car. The appellant denied these suggestions and I found no basis to otherwise accept any of those scenarios on the evidence.

15The appellant’s testimony was forthright, detailed and credible in my view. It was not shaken in cross examination.

16Having heard the evidence and found the appellant to be a credible witness, I find that what most likely occurred on the day in question was that SJ snuck into the appellant’s house without her knowledge or consent. He did not knock. He did not have a key. He was sufficiently quiet that the appellant did not hear him. She did not see him either. The appellant described how the house was set up and how he could have come in the front door, straight to where the keys were kept, and out again, to drive away with her car without her being aware of what was happening. I find this amounts to theft, as per my analysis below.

Law & Analysis

17The word “stolen” is not defined in the Act.

18In 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) Everyone 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 …

19The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles)¹ 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:

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

20In 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.

21The Registrar submits that SJ’s actions should not be considered theft because the keys were left in plain sight; the police did not press charges; and because SJ lacked the intention to steal the car, having told the appellant that his plan was to take the car to the scrap yard with some wires. The Registrar further submits that SJ likely would have returned the car. As stated above, the Registrar’s suggestion that the appellant likely knew he had taken the vehicle and had acquiesced to its taking was not borne out in my assessment of the evidence.

22This case is similar to Suzanne Huffman v. Registrar of Motor Vehicles², where I found that a vehicle was stolen when it had been taken by the appellant’s grandson who lived with the appellant and took her keys from her purse while she was sleeping. In that case, the appellant did not seek to press charges; and in terms of what the appellant thought the appellant planned to do with the vehicle, she assumed he would have returned it.

23With respect to fact that SJ was not charged with the theft of the appellant’s vehicle, I accept her evidence that she thought he should be charged with theft and that he was no longer welcome at her house as a result of what he had done.

24With respect to the driver knowing where the keys were in this case, as I stated in Huffman, the fact that a person may know where an item is kept does not absolve that person from theft if the item is taken fraudulently and without colour of right.

25Similarly, in P.L. v. Registrar of Motor Vehicles³, I found that the appellant’s vehicle was stolen when it had been taken by his employee from the workplace after hours when everyone else had gone home. Although the keys were hanging on the wall and available for the taking, I found that this factor did not amount to “tacit consent” to take the vehicle, as the Registrar had submitted in that case.

26So too here, I find the fact that SJ would have known that the appellant kept her car keys in a bowl on the kitchen table did not mean that the appellant tacitly consented to SJ sneaking into her house, taking those keys and then driving off with her car before she could notice. It is the nefariousness of the act that persuades me that SJ had the intent to steal in this case.

27I have also considered whether the crime might constitute joyriding and not theft, based on the possibility that the car would have been returned by SJ after he sold his wire. In this regard, there is no evidence that SJ would have returned the vehicle at all, but moreover and more importantly, even if I were to conclude that he would have returned the car eventually, this 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.

28As I noted in Huffman,

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 [the driver in Huffman] 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.

29I find this reasoning to be applicable in this case as well. It is not what SJ may have ultimately done with the vehicle that determines the issue in this case. It is the circumstance of the taking that satisfies me, on a balance of probabilities, that the appellant’s vehicle was stolen at the time that it was detained in order to be impounded.

Conclusion

30Taken altogether, the facts of this case satisfy me, on a balance of probabilities, that the appellant’s vehicle was stolen within the meaning of the Act by SJ at the time it was detained in order to be impounded.

31On the above basis, following the hearing on April 17, 2020, I ordered the Registrar to release the appellant’s motor vehicle pursuant to s. 50.2 (5) of the Act.

32Given the above result, it is not necessary for me to address whether the appellant could have succeeded on the ground of exceptional hardship.

Footnotes

1. 1[2002] O.J. No. 745 (“Marshall”)
2. 22020 CanLII 27409 (ON LAT) (“Huffman”)
3. 32019 CanLII 37552 (ON LAT) (“P.L.”) request for reconsideration denied, 2019 CanLII 130356 (ON LAT)