Ontario Court of Justice

Toronto, Ontario

Her Majesty the Queen v. Olumuyiwa Olaniyan

Ontario Court of Justice Toronto, Ontario

Counsel:

• A. Smith for the Prosecution
• Defendant on his own behalf

Before: J. Opalinski J.P.

Heard: December 7, 2015

Delivered: February 9, 2016

Reasons for Judgment

Charge

[1] The defendant is charged with the offence of:

i. Permit Motor Vehicle to be operated without insurance contrary to section 2(1)(b) of the Compulsory Automobile Insurance Act, RSO 1990, c C25 which states:

Subject to the regulations, no owner or lessee of a motor vehicle shall cause or permit the motor vehicle to be operated on a highway unless the motor vehicle is insured under a contract of automobile insurance;

Issue

[2] The issue before the court is: whether or not the prosecution has proven one key element of the offence beyond a reasonable doubt required to convict the defendant, namely, that the defendant did cause or permit the motor vehicle to be operated on the highway when it was not insured under a contract of automobile insurance.

Argument for the Prosecution

[3] The prosecution submits that the defendant owned the vehicle in question. It was driven on a highway by the person who had the keys to the vehicle, and that by turning these keys over to the individual who drove the motor vehicle, the defendant permitted the vehicle to be driven while it was not insured. The offence is a strict liability offence and the defence of due diligence is open to the defendant to prove on a balance of probabilities. However, the defendant has not made out a case of due diligence as required as he did not take all reasonable steps to prevent the vehicle from being driven.

Argument of the Defence

[4] The defendant has made an argument that he asked his friend if he could park the vehicle in his garage parking space for the purposes of showing the vehicle to prospective buyers and that he specifically instructed his friend that he was not to drive the vehicle as it was not insured. The keys were given to his friend solely for the purpose of opening the vehicle so that it could be viewed inside and not for the purposes of allowing the vehicle to be test-driven, or for his friend to drive the vehicle.

Evidence for the Prosecution

[5] The evidence of Toronto Police Officer Lance Verdoold may be summarized as follows:

(a) The officer indicated that at approximated 6:25 p.m., on September 6, 2014, he was driving northbound on Jane Street, north of Finch Avenue in the City of Toronto.

(b) He observed a 1979 Green Toyota Corolla motor vehicle exit Yorkgate Plaza onto Jane Street traveling northbound, turn left to travel westbound on Yorkgate Blvd and enter the underground parking lot of the building located at 100 Yorkgate Blvd.

(c) He followed the vehicle into the parking lot and made a demand to the driver for licence, ownership and proof of insurance. The driver of the vehicle could not produce any proof of insurance for the said vehicle, but was able to produce registration for the vehicle whose VIN on the registration matched the VIN on the actual vehicle.

(d) The driver identified himself with a digital photo driver's licence in the name of Chima Julius Osakwe with an address of 100 Yorkgate Blvd in Toronto.

(e) Exhibit #1 is a plate by date search document, under the signature and seal of the Ministry of Transportation and indicates that the vehicle is registered to Olumuyiwa Olaniyan.

(f) There was nothing to suggest that the vehicle was stolen or tampered with. When stopped, the keys were in the vehicle's ignition.

(g) The driver of the vehicle made a phone call to the defendant, who was the owner of the vehicle and the officer spoke to the defendant. In his evidence in chief, the officer indicated what was conveyed to him was that the driver should not be driving the vehicle. The officer was not satisfied with the explanation, although he did not recall precisely what was said to him by the defendant and why this was so.

(h) In cross-examination the officer indicated that the message conveyed to him by the defendant was that the driver of the vehicle did not have authorization to drive the said vehicle. The reason why the car was parked at the driver's place of residence was that he did not have enough parking space at his own home. Although the officer did not write anything down with respect to that conversation and does not recall the specifics, he indicated that the defendant may have said that, but has no specific recollection.

Evidence for the Defence

[3] The defendant's evidence may be summarized as follows:

(a) The defendant stated that he had 3 vehicles and only two spots at his semi-detached house for parking; so he could not park or accommodate 3 vehicles.

(b) Two vehicles were insured and listed on the insurance slip, while the third vehicle was not insured and was parked at Mr. Osakwe's place, solely for the purpose of storing the vehicle while it was being sold in an 'as is' condition. The vehicle had been giving the defendant issues so he purchased another vehicle to replace the green Toyota Corolla, which he listed on Kijiji for sale. The replacement vehicle that he purchased was insured.

(c) The car had been parked at Mr. Osakwe's place of residence since January 2015 and the keys were left with Mr. Osakwe solely for the purpose of allowing people to view the inside of the vehicle, turning on the engine, but not for the purpose of driving it. For this reason, Mr. Osakwe was given the keys and told expressly that he was not permitted or authorized to drive the vehicle. He was only to show the vehicle to any potential buyer. Mr. Osakwe was aware that he was not permitted to drive the vehicle and the defendant indicated that he was aware of the law with regard to insuring his vehicles, as his two other vehicles which were being driven were insured.

(d) The defendant was in Atlanta, Georgia on the date of the offence and spoke to the officer, telling him that he did not authorize Mr. Osakwe to operate the vehicle and he was not aware that it was being driven.

(e) The defendant's witness, Mr. Chima Julius Osakwe, testified that he explained to the officer that the vehicle was parked at his house and that he was told not to drive it as there was no insurance on the vehicle.

(f) He was given the keys to the vehicle, but explicitly told not to drive it.

(g) He admits that he did drive the vehicle to the Mall from which he then exited onto Jane Street and then onto Yorkgate Blvd. He had gone to the mall, that was 3 to 4 minutes from his home, to buy groceries.

The Law

[4] The defendant is charged with the offence of permitting a vehicle to be driven when it was not insured by a contract of automobile insurance. The key word in section 2(1)(b) of the Compulsory Automobile Insurance Act, supra, is the word 'permit'.

[5] When interpreting statutes a recent decision of Celgene Corp. v. Canada (Attorney General), 2011 CC1 relied on the approach used in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at page 10, where it was found:

It has been long established as a matter of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.

[6] Consequently, when looking at the ordinary meaning of the word 'permit', Webster's New Universal Unabridged Dictionary 2nd Edition states as follows:

'to give permission to; to authorize; to allow by silent consent, or by not prohibiting; to tolerate; to give opportunity for'

[7] Black's Law Dictionary 5th Edition defines 'permit' as:

'to suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.'

Pursuant to the reasons set out in Canada Trustco Mortgage Co. v. Canada, supra, the court should read the word 'permit' within the 'context' of the Compulsory Automobile Insurance Act, supra, and look at the ordinary sense or meaning of the word 'permit'. The court will have to determine if the Defendant authorized, allowed by silent consent or otherwise, consented, agreed or acquiesced by failing to prevent the use of his vehicle by Mr. Osakwe. Did the act of giving Mr Osakwe the keys to the vehicle de facto constitute permitting the use of this vehicle to be driven by Mr. Osakwe when it was not insured?

[8] This court in the decision of R. v. Kuzmanov [2012] O.J. No. 5033 held that the evidence given by the defendant was credible and that the defendant had clearly spelled out that his son, the driver of the motor vehicle, did not have permission to take the car. 'The key point is whether or not there is evidence showing that there was permission given to the driver to operate the vehicle'. (At para 32) The fact that the keys were easily accessible this did not constitute implied permission, especially in light of the fact that 'there were clear rules set out with respect to the operation of the vehicle and permission needs to be given each time the vehicle was taken'. (At para 32)

[9] In the case of R. v. Egharevba (2012) O.J. No. 397, the court held that the 'word permit can be proved by circumstantial evidence but it has to be cumulatively strong enough for an inference of guilt to be drawn'. (At para 16) There was insufficient evidence to convict.

[10] The court in R. v. Sawa [2008] O.J. No. 5994 stated that the prosecution failed to establish beyond a reasonable doubt that the defendant permitted the motor vehicle to be driven when it was not insured. The prosecution failed to prove beyond a reasonable doubt in the evidence provided by the officer that the defendant had 'willingly and knowingly allowed the driver to operate the motor vehicle' (At p. 10). The officer took a written statement from the driver, served a summons on the defendant based on that statement, yet the contents of that statement were never introduced into evidence'. Consequently, the court allowed the appeal and acquitted the defendant of the offence.

[11] Furthermore, it is also incumbent upon the court to determine what category this offence fall into. R. v. Sault Ste Marie (City), [1978] 2 S.C.R. 1299 sets out the three categories of offences. Dickson J stated:

1. "Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;

2. "Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability to proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."

[12] The question that this court must ask is whether or not the offence that the defendant is charged with is a mens rea, strict liability or absolute liability offence? As Justice Dickson points out in Sault Ste. Marie, supra, for an offence to be categorized as a mens rea offence it should have contained words that purport some mental element such as 'willfully,' 'with intent', 'knowingly' or 'intentionally'. These are typically criminal offences whereas public welfare offences are prima facie strict liability offences.

[13] The court in R. v. Ikponmwosa [2011] O.J. No. 1367 refers to two cases pertaining specifically to an owner permitting the use of his/her motor vehicle by another driver when it was not insured by a contract of automobile insurance. These cases are: R. v. James, 2006 Carswell Ont 2592 and R. v. Bedard [2009] O.J. No. 4720.

[14] The court in R. v. James, supra, found that section 2(1)(b) of the Compulsory Automobile Insurance Act was not a strict liability offence. The court in R. v. Ikponmwosa supra, on the other hand, suggests that the court in R. v. James, supra, 'treated the offence of permitting someone to drive a motor vehicle without insurance as a mens rea offence'.

[15] However, R. v. Bedard, supra, characterized the offence as a strict liability offence relying on the analysis of the words "cause" and "permit" in Sault Ste. Marie, supra, where it was concluded that these words 'neither denote clearly either full mens rea or absolute liability'. As such these words 'fit much better into an offence of strict liability'. If the section of the statute had used the words knowingly or willfully, then it may be more likely that they should be categorized as mens rea offences.

[16] The court in R. v. Ikponmwosa, supra, chose to accept the approach taken in R. v. Bedard supra in categorizing permit to operate a motor vehicle when it was not insured under a contract of automobile insurance as a strict liability offence. This court is of a similar view that the charge should be characterized as a strict liability offence.

Analysis

[17] The court in R. v. Persaud [2015] O.J. No. 3296 clearly sets out the elements of the offence of permitting someone to drive his motor vehicle while it was not insured contrary to s. 2(1)(b) of the Compulsory Automobile Insurance Act, supra, and what the prosecution must prove beyond a reasonable doubt. It is as follows:

i) The defendant was the owner or lessee of the motor vehicle at the time that the officer stopped the driver;

ii) The motor vehicle was not covered under a valid contract of automobile insurance at the time; and

iii) The defendant permitted the driver to drive her vehicle on the highway while the vehicle was not so covered by insurance. (At para 29)

[18] The prosecution must prove all three elements of the offence under s. 2(1)(b) of the Compulsory Automobile Insurance Act, supra, beyond a reasonable doubt before the onus shifts to the defence to establish due diligence.

[19] Has the prosecution proven beyond a reasonable doubt the following: that the defendant was the owner of the motor vehicle at the time of the offence; the vehicle was not insured; and the defendant permitted the driver to drive his vehicle on a highway while that vehicle was not insured?

[20] This court finds that the prosecution has proven beyond a reasonable doubt that the defendant was the owner of the motor vehicle on the date of the offence as evidenced by Exhibit 1 and the defendant does not dispute this point.

[21] With regard to whether or not the vehicle was insured, the defendant in his own evidence admitted that the vehicle was not insured. Therefore, there is no issue with respect to the second element of the offence.

[22] However, the issue before this court is whether or not the defendant permitted the driver to drive his vehicle when it was not insured. Has this been done by the prosecution before the onus needs to shift to the defendant to prove due diligence?

[23] What constitutes permission or consent and can any of the defendant's action be construed to be acquiescence by failure to prevent or is there evidence of some form of implied consent as suggested by the prosecution? The prosecution argued that the defendant did not take reasonable steps to prevent the driver from taking the vehicle while it was not insured and as such did not exercise due diligence. The mere fact that the defendant gave the driver the keys to his motor vehicle is tantamount to permitting the driver to use and drive the vehicle as supported by law. Does this action on its own de facto constitute permit and, as such, proof beyond a reasonable doubt that the last element of the offence required to be proven by the prosecution has been made out? Does the consent not have to be unequivocal?

[24] The defendant's evidence is unequivocal in that he specifically told Mr. Osakwe not to drive the vehicle. The keys were given to Mr. Osakwe by the defendant for the express purpose of viewing the interior of the vehicle as it was being sold in an 'as is' condition. There were to be no test drives of this vehicle as the vehicle did not have insurance.

[25] The court accepts the evidence of all parties that Mr. Osakwe was driving the motor vehicle and that it was not insured under a contract of automobile insurance. However, did the defendant permit Mr. Osakwe to use his vehicle for any reason or purpose?

[26] In other words, should the court construe that by not taking all diligent steps to prevent Mr. Osakwe from driving the vehicle in particular by giving Mr. Osakwe the keys to his motor vehicle, the defendant did indeed permit Mr. Osakwe to drive the motor vehicle? Or did the defendant expressly, clearly and unequivocally tell Mr. Osakwe that he cannot operate the motor vehicle and that Mr. Osakwe understood this and in spite of this directive drove the vehicle around the corner to purchase groceries? Should the court find that a reasonable person looking at all the relevant circumstances interpret the defendant's action as to deny Mr. Osakwe permission to operation the vehicle? What was Mr. Osakwe's understanding of what he was allowed or permitted to do with the motor vehicle. What constitutes permitting someone to operate his/her motor vehicle?

[27] If the court accepts that the defendant's directive to Mr. Osakwe was clear in that he was not to drive the vehicle, and the vehicle was being stored by him for the sole purpose of selling that vehicle, as the defendant did not have a third parking space at his property, then Mr. Osakwe's action was taken on his own accord. He knew and ought to have known that the vehicle should not be driven, but chose to do so. The prosecution's insistence in cross examination that the defendant knew the vehicle had no insurance and let Mr. Osakwe drive the vehicle is not supported by the defendant's evidence which is clear as to the permission, or lack thereof, given to Mr. Osakwe and the purpose for which the vehicle was being housed by Mr. Osakwe. The mere giving of the keys to Mr. Osakwe does not constitute permit either inferred or implied in light of the defendant's clear instructions to Mr. Osakwe, his acknowledgement of them and the phone call made by Mr. Osakwe to the defendant, who was in Georgia on the day of the offence, and the conversation had between the officer and the defendant, of which the officer failed to note but did recall that it had transpired.

[28] R. v. Egharevba, supra, as cited by this court in R. v. Kuzmanov, supra, and by a court of the same level in R. v. Persaud, supra, ruled that 'the word permit can be proved by circumstantial evidence but it has to be cumulatively strong enough for an inference of guilt to be drawn'. (At para 16)

[29] The submission of the prosecution that the handing over of the keys by the defendant to Mr. Osakwe is tantamount to giving him permission to drive in and of itself is not strong enough for the court to 'draw an inference of guilt'. Especially in light of the defendant's express instructions and rules he set out and Mr. Osakwe's acknowledgement of these rules and conditions. The court does note that, if anything, Mr. Osakwe's knowledge of how insurance operates in Ontario is somewhat vague due to his inexperience of having placed insurance on a motor vehicle while the defendant clearly knew what was required and had the two vehicles he was currently operating insured. The vehicle driven by Mr. Osakwe was not insured as it had been replaced by another vehicle and was not to be driven but was to be sold in an 'as is' condition.

[30] The court pursuant to R. v. WD, [1991] 1 S.C.R. 742 should examine the Defendant's evidence for credibility in relation to the Crown's onus of proving the actus reus by applying the test set out there in as follows:

"First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused."

[31] This court finds that when applying the test set out in R. v. WD, supra, in assessing the defendant's credibility, the evidence of the defendant is believable. On the basis of the evidence that the court does accept, the court is not convinced beyond a reasonable doubt by that evidence that the defendant is guilty of the offence as the prosecution has not made out the last element of the offence beyond a reasonable doubt which is required to be done if the court is to convict the defendant, namely, that the defendant did permit the motor vehicle to be driven when it was not insured under a contract of automobile insurance. As the prosecution has not met its onus, there is no need for the court to rule on whether or not the defendant has met his onus of due diligence, for the prosecution must first prove its case beyond a reasonable doubt before the onus shifts to the defence; and it has not done so.

Disposition

[32] For the reasons set out above, the court finds that the prosecution has not met its onus of proving beyond a reasonable doubt that the defendant did cause or permit to be operated on a highway a motor vehicle when it was not insured under a contract of automobile insurance on September 6, 2014. The court finds the defendant not guilty of contravening section 2(1)(b) of the Compulsory Automobile Insurance Act, supra.

Dated the 9th day of February, 2016, at the City of Toronto

"J. Opalinski"

Joanna Opalinski J.P.