Licence Appeal Tribunal
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:
Brian Lapointe and Elizabeth Lapointe Appellants
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Brian Lapointe and Elizabeth Lapointe, Self-Represented For the Respondent: Leila Pereira, Agent
Heard by Teleconference: August 24, 2022
Overview
1Brian Lapointe and Elizabeth Lapointe (“appellants”) appeal the impoundment of their vehicle, a 2015 Ford Escape (“vehicle”).
2It was impounded on July 16, 2022, when it was discovered by police being driven by Molly Smith, the appellants’ daughter. Molly’s licence was under suspension due to an earlier Criminal Code conviction for impaired driving and in these circumstances the Highway Traffic Act (“Act”) requires the police to impound the vehicle for 45 days.
3The appellants appeal the impoundment on two grounds:
(a) The vehicle was stolen at the time it was impounded.
(b) The impoundment will result in exceptional hardship.
4For the reasons set out below, I conclude that the vehicle was stolen at the time it was impounded and I have therefore ordered that the Registrar release the appellants’ vehicle.
5Since the appellants have been successful on their first ground of appeal, it is unnecessary to consider their second ground of appeal.
The Law
6Under section 55.1(1) of the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose licence was under suspension because of, among other things, a Criminal Code conviction for a drinking and driving offence.
7Under section 50.2 of the Act, the owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the vehicle be released.
8The Act allows only five grounds on which an owner may appeal, and they include the two grounds that the appellant relies on in this case. The onus is on the appellant to establish the facts that support the grounds of appeal on a balance of probabilities.
The Impoundment
9Four witnesses testified with respect to the impoundment – the appellants, their 28-year-old daughter Molly Smith, and her cousin, Carl Paypam. Their evidence was given under solemn affirmation, it was presented in a plain, unvarnished manner, and was essentially uncontradicted. I regard their evidence to be credible and based on it I conclude the following.
10The appellants live in Fort Frances Ontario in a household that includes their daughter, Molly. There are two vehicles in the household – the 2015 Ford Escape (the impounded vehicle) normally driven by, and registered to Brian Lapointe, and a 2016 Dodge Caravan normally driven by, and registered to Elizabeth Lapointe. Molly lives in the lower level of the house. The appellants’ bedroom is upstairs. It is understood in the household that the appellants’ bedroom is their private space and Molly is expected to stay out of the bedroom unless permitted by the appellants.
11Molly’s driver’s licence is under suspension because of an impaired driving conviction in April 2018. Everyone in the household knows that Molly does not have a valid licence and is not allowed to drive. According to both the appellants and Molly, the appellants have told her directly that she is not allowed to use their vehicles and she has not done so in the past.
12On Saturday July 16, 2022, the appellants were in Winnipeg for the weekend. Molly was at home with her cousin Carl. They had been drinking and in the late afternoon decided to go to a liquor store to buy more alcohol. According to Molly she went upstairs to the appellants’ bedroom and took the spare set of keys to the vehicle. Molly then drove the vehicle with Carl as a passenger until they were stopped by police and the vehicle was impounded. Molly did not ask for permission to take the vehicle and the appellants did not find out about the impoundment until afterwards.
Was the Vehicle Stolen When it Was Impounded?
13I conclude that the appellants have satisfied the onus of establishing that the vehicle was stolen at the time it was impounded.
14The term “stolen” is not defined in the Act. However, guidance on the meaning of that term meaning can be drawn from the Criminal Code which provides that:
“Steal” means to commit theft.1
“Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or the use of another person, anything …. with intent
(a) to deprive temporarily or absolutely, the owner of it, or a person who has a special property or interest in it…”2
15The Criminal Code definition of “stolen” appears to have been adopted by the Divisional Court in its interpretation of the meaning of that term as it is used in impoundment provisions of the Act. 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.3
16In my view, given that context, an owner appealing an impoundment on the ground that the vehicle was stolen must demonstrate that the vehicle was taken without the owner’s consent and by a person who intended to deprive the owner of the vehicle, either temporarily or permanently.
17With respect to first element - consent – I am satisfied that Molly took the vehicle without the appellants’ consent. The evidence establishes that the appellants knew of Molly’s suspension and expressly prohibited her from driving the vehicle because of it. There is no suggestion that consent was implicitly given or that Molly’s use of the vehicle was tolerated. According to the evidence, this was the first time that Molly had driven one of her parents’ vehicles and the keys were not readily accessible to her – she had to go into her parents’ private bedroom to locate the spare keys in a dresser. Molly testified that she knew she was taking the vehicle without her parents’ consent and against their wishes.
18With respect to the second element, I conclude that Molly took the vehicle with an intention to deprive the appellants of the vehicle temporarily. The vehicle was owned and primarily used by Brian Lapointe. During the Saturday when the vehicle was impounded, the appellants were enjoying a weekend in Winnipeg. Their intended use of the for the vehicle was for it to be parked safely in their driveway in Fort Frances and not to be used by Molly. I conclude that by driving the vehicle directly in conflict with her parents’ instructions, Molly intended to deprive the appellants of their intended use of the vehicle.
19In conclusion, both elements necessary to prove that the vehicle was stolen at the time it was impounded have been established. As set out below I have ordered the Registrar to release the vehicle.
ORDER
20Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant’s vehicle.
Licence Appeal Tribunal
Stephen Scharbach, Member
Released: September 1, 2022
Footnotes
- Criminal Code, s. 2
- Criminal Code, s. 322(1)(a)
- Marshall v. Ontario (Registrar of Motor Vehicles, [2002] O.J. No 745.