Sursattie Singh v. Registrar of Motor Vehicles, 2021 CanLII 11894

Licence Appeal Tribunal

Date: 2021-01-19

File Number: 13056/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Sursattie Singh

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: Sursattie Singh, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: January 18, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on January 18, 2021 to consider the appellant’s appeal of the 45-day impoundment of her 2008 Ford, F/L (the “vehicle”). The vehicle was impounded on December 4, 2020 because it was being driven by a person whose licence was under suspension. The vehicle was eligible for release on January 18, 2021, the date of the hearing.

2The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle and pay the impound fees for the 45-day period.

ISSUE:

3The issue to be determined is whether the vehicle was stolen at the time of the impoundment.

CONCLUSION:

4On the evidence before me at the hearing, I find that the vehicle was not stolen within the meaning of s. 50.2(3)(a) of the Highway Traffic Act , R.S.O. 1990, c. H.8 (the “Act” or the “HTA”).

LAW AND ANALYSIS:

5Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the Act, the officer is required to detain and impound the vehicle. Section 55.1 sets out the scope of the authority and the duration of the period of impoundment. If there has been no previous impoundment in the last two years, the impound period is 45 days.

6The owner of a vehicle that has been impounded, pursuant to s. 55.1 of the HTA, may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant, in this case, appealed on the ground that the vehicle was stolen at the time of the impoundment.

Stolen

8Section 50.2(3)(a) of the Act provides that a vehicle impoundment may be appealed if the vehicle was “stolen” at the time of the impoundment.

9The term “stolen” is not defined under the Act. In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The court stated:

In our opinion a vehicle is “stolen” in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

10In the absence of a definition of stolen under the Act, the meaning of stolen under the Criminal Code (the “Code”) is instructive. Section 2 of the Code defines “steal” as “to commit theft”. Subsection 322(1) of the Code creates the offense of theft, which reads:

“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,

1. 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;”

11As such, in order for conduct to amount to theft, the perpetrator must intend to commit the act. In addition, the perpetrator must deal “fraudulently and without colour of right” with the subject matter, in this case the vehicle.

12The appellant testified that the vehicle was stolen from her driveway. She stated that she did not notice it was missing from the driveway until December 6, 2020, two days after it was impounded. She admitted on cross-examination that she was at home on December 4 to 6, 2020, and that her driveway is visible from the windows of her home. According to the appellant, the vehicle was locked but the spare keys to the vehicle were in the glove compartment.

13The appellant gave evidence that she reported the vehicle as stolen to the police by telephone on or about December 6, 2020. She stated that she did not have a record of the name or badge number of the person with whom she spoke, nor did she have an occurrence number. She stated that she did not follow up with the police after reporting the alleged theft, nor did anyone from the police service contact her about the vehicle.

14Initially the appellant stated that she did not know the individual who was driving the vehicle at the time of the impoundment. In response to questions from Mr. Kapur, the agent for the respondent, the appellant denied that Anil Persaud, the driver at the time of the impoundment, was her ex-spouse. When confronted with information about Anil Persaud also being the driver when her vehicle was impounded in 2017 and 2018, she admitted to being aware of one of these impoundments but had no recollection of the other one. She stated that Mr. Persaud’s wife has the same first and last name as her and gave evidence about Mr. Persaud’s employment, living arrangements and mental health, as well as the mental health of his mother.

15OPP Police Constable (“PC”) Justin Lyon, a witness for the respondent, testified that he charged Anil Persaud with impaired driving and failing to provide a breath sample on December 4, 2020. He explained that Mr. Persaud initially did not want to identify himself or the owner of the vehicle but eventually told him that the vehicle belonged to his ex-spouse, Sursattie Singh. PC Lyon stated that he queried the vehicle using CPIC and determined that it was registered to Sursattie Singh and that the vehicle had not been reported as stolen. PC Lyon also stated that, in an effort to identify the driver, he queried Sursattie Singh in the RMS data base, a data base of OPP occurrences. From this query, he learned that Anil Persaud had been arrested in a vehicle owned by Sursattie Singh in 2017 and 2018. In both cases the vehicle was impounded and Persaud was not charged with theft. PC Lyon indicated that in the 2017 occurrence, Sursattie Singh was listed as NOK (next of kin) to Anil Persaud.

16PC Lyon stated that on the date of the arrest and impoundment, Anil Persaud was wearing a factory style work shirt or uniform with his name embroidered on it. He also testified that he found a lunch bag as well as several bottles of opened liquor in the vehicle. According to PC Lyon, Mr. Persaud told him that he was going to work, and that he needed the vehicle to get to work.

17PC Lyon testified that based on the totality of the evidence, he did not believe, on the night of the incident, that Anil Persaud stole the vehicle. PC Lyon elaborated that this evidence included: Mr. Persaud was dressed in work attire; his lunch bag was in the vehicle; he stated that the vehicle belonged to his ex-spouse; the owner of the vehicle was listed as NOK on a prior occurrence; and in two earlier impoundment cases involving Mr. Persaud as driver and Sursattie Singh as the registered vehicle owner, Mr. Persaud was not charged with theft.

18PC Lyon testified that on January 8, 2021 he attempted to reach Anil Persaud by calling his emergency contact, his mother. He stated that he asked his mother if she knew the name of Mr. Persaud’s ex-spouse, and she responded “Sherry Singh”. PC Lyon stated that he queried Sherry Singh on the OPP data base and found that Sursattie Singh goes by the name Sherry Singh.

19PC Lyon also testified that on January 10, 2021, he conducted additional queries on three data bases to verify whether the vehicle had been reported as stolen. He identified the data bases as RMS (Record Management System), the Ministry of Transportation (MTO) data base, and PIP (a multi-jurisdictional data base). PC Lyon indicated that the vehicle had not been reported as stolen on any of these data bases. He informed that the results of these additional queries, one week after the incident, confirmed his initial assessment that Anil Persaud did not steal the vehicle.

20In light of the conflicting evidence concerning Anil Persaud’s relationship to the appellant, my assessment of the appellant’s credibility was very important to the outcome of this case. I did not find her evidence to be reliable for a number of reasons. At the outset, her evidence changed when she was questioned and confronted with additional information during cross-examination. Initially she stated that she did not know the driver of the vehicle at the time of impoundment. Later she purported to know very detailed and intimate information about the driver including his job, living arrangements, mental health, current spouse’s first and last name (allegedly the same as the appellant’s first and last name), and even the mental health of the driver’s mother.

21In addition, I did not find the appellant’s testimony, that she only noticed that the vehicle was missing from her driveway, after at least two days had elapsed, to be credible given that she was home the entire time and admitted that the driveway is visible from the windows of her home. Her evidence about reporting the alleged theft of the vehicle to the police was vague and lacking credibility as well. She seemed unsure about the date on which she phoned the police, and she did not keep a record of the name or badge number of the person with whom she spoke, nor did she have an occurrence number. On the other hand, PC Lyon, who has no self-interest in the outcome of this case, testified that he checked three data bases one week after the incident, and there was no record of the vehicle being reported as stolen. Finally, the appellant also could not explain why, if she believed the vehicle had been stolen, she did not follow up with the police when she did not hear back from them.

22While PC Lyon would need to apply a higher burden of proof if charging Anil Persaud with theft under the Criminal Code, I found his reasons for concluding that the vehicle had not been stolen to be persuasive when applying the lower standard of proof applicable to cases under the HTA. The appellant did not establish that Anil Persaud intended to deprive her of the vehicle, either permanently or temporarily, or that he fraudulently or without colour of right took the vehicle. As such, the evidence does not support a finding that the vehicle was stolen, within the meaning of section 50.2(3)(a) of the Act, when it was impounded.

ORDER:

23Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.