CITATION: R. v. Waugh, 2010 ONCA 100
DATE: 20100203
DOCKET: C43728 and C43729
COURT OF APPEAL FOR ONTARIO
Feldman, Blair and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Besley Waugh
Appellant
Joseph Di Luca, for the appellant
Joanne Stuart, for the respondent
Heard: October 29, 2009
On appeal from the orders of Justice Norman D. Dyson of the Superior Court of Justice, dated May 12, 2005, dismissing summary conviction appeals from the convictions ordered by Justice Minoo F. Khoorshed and Justice Jack J. Belobradic of the Ontario Court of Justice, dated May 30, 2000, and July 27, 2000, respectively.
R.A. BLAIR J.A.:
[1] Besley Waugh was convicted twice in the year 2000 of obstructing police. Both convictions arose out of incidents in which the vehicle he was driving was properly stopped by police for road safety purposes. On each occasion Mr. Waugh failed to produce proof of valid insurance and was “uncooperative” with police. He seeks to have those convictions set aside.
Facts
[2] Mr. Waugh and Police Constable Churkoo appear to frequent the same roadways.
The First Incident
[3] On March 3, 1999, P.C. Churkoo was on foot patrol in the Eglinton Ave. and Keele St. area of Toronto. He observed a rusted Pontiac vehicle that appeared to be in poor condition and did not have a front licence plate. He instructed the driver, Mr. Waugh, to stop and pull over. In response to a request to do so, Mr. Waugh was unable to produce either a driver’s licence, a valid vehicle permit, or proof of valid insurance.
[4] The officer believed (correctly, as it turned out) that the vehicle was uninsured. He advised Mr. Waugh that the vehicle would be impounded and a tow truck was summoned. A CPIC search by another officer revealed that Mr. Waugh had three previous convictions for operating a vehicle without insurance.
[5] Mr. Waugh refused to get out of the car. Instead, he locked himself in and asked that a supervisor be called. This was done and, while they were all waiting, P.C. Churkoo served Mr. Waugh with several provincial offence notices. Shortly thereafter, while still waiting for the supervisor to arrive, Mr. Waugh started the car and began to drive away. Pursued by the police, he ultimately turned off the road and parked the car in a private laneway about 150 to 250 metres away from the point where he had been stopped. Because the vehicle was parked on private property and not on a highway, the police were unable to tow it away.
[6] Mr. Waugh was then charged with the offence of obstruct police on the basis that he had failed to follow the police instructions not to move the vehicle and had prevented them from properly towing the uninsured vehicle.
[7] Mr. Waugh`s explanation was that once he had received the offence notices he thought he was free to drive off, and had done so. Justice Khoorshed rejected this evidence.
The Second Incident
[8] On November 1, 1999, P.C. Churkoo was again on foot patrol, this time in the area of Davenport Rd. and Osler St. in Toronto. Again, he noticed a vehicle approaching that appeared to be in poor condition – it was rusted, the suspension was not proper, and the vehicle was leaning to one side – and it lacked a front licence plate. Again, he signalled for the vehicle to stop. Again, the vehicle was driven by Mr. Waugh. And again, Mr. Waugh was uncooperative.
[9] Mr. Waugh refused to stop when initially requested to do so. As P.C. Churkoo approached the vehicle to instruct the driver to pull over, Mr. Waugh put the vehicle in motion, veered to the right, drove around the officer, and proceeded along the street. P.C. Churkoo repeatedly called for Mr. Waugh to stop, but Mr. Waugh proceeded to turn into a laneway designated by the City as a fire route. Eventually, Mr. Waugh did stop, but not before driving within an arm’s length of the police officer who was tapping on the hood, saying, “[s]top, Mr. Waugh. Stop the vehicle. I’m stopping you.”
[10] This time, when he finally did stop, Mr. Waugh was able to produce a valid driver’s licence and vehicle ownership permit, but he did not produce proof of insurance.
[11] P.C. Churkoo had stopped Mr. Waugh on one other occasion since the March 3, 1999 incident (on April 4, 1999) when Mr. Waugh was again unable to provide proof of insurance. He therefore recognized the appellant from his previous experiences and suspected that the vehicle was uninsured. Following the March 3 incident, P.C. Churkoo had made some inquiries about Mr. Waugh at the Ministry of Transportation and the Financial Services Commission. These inquiries revealed that Mr. Waugh had obtained his vehicle validation sticker by pretending to be insured by a company – “Your Own Insurance Company” – that did not exist. P.C. Churkoo informed Mr. Waugh they would seize his licence plate (a dealer plate) which was displayed inside the vehicle on the rear window. He also informed Mr. Waugh that his car would be impounded, and a tow truck was summoned.
[12] After some resistance, Mr. Waugh got out of the vehicle through the passenger side door and then quickly slammed the door, locking the keys inside the car, thus preventing the police from seizing his licence plate. Again, Mr. Waugh was arrested for the offence of obstruct police.
The Proceedings
[13] On May 30, 2000, Justice Khoorshed convicted Mr. Waugh of obstructing police in relation to the first incident. On July 29, 2000, Justice Belobradic convicted him of obstructing police in relation to the second incident. In both cases, the trial judges accepted the evidence of the police officers and rejected that of Mr. Waugh.
[14] Five years later – on May 12, 2005 – Justice Dyson of the Superior Court of Justice dismissed his summary conviction appeals. Leave to appeal to this Court was granted on March 16, 2009. At the same time, Mr. Di Luca was appointed counsel for Mr. Waugh pursuant to s. 684 of the Criminal Code.
The Issues
[15] Although Mr. Di Luca raised a number of issues on appeal, his principal submission was that the police officers were not engaged in the lawful execution of their duties at the time of the original arrests. Therefore, the offence of obstruct police has not been made out.
[16] The argument rests on two pillars. First – in relation to the March 3, 1999 incident – Mr. Di Luca submits that, having properly served Mr. Waugh with valid provincial offence notices, the police had no further authority to impound the uninsured vehicle. It follows that they had no authority to require Mr. Waugh to get out of the vehicle. He could therefore not have been obstructing the police by failing to do so. Secondly – in relation to the November 1, 1999 incident – he submits that the police had no authority (a) to impound the vehicle, for the same reasons set out above, or (b) to seize the licence plate because the vehicle was uninsured and they had no basis for believing in the circumstances that the licence plate had been improperly obtained. In the end, says Mr. Di Luca, the police are not entitled to enforce the provisions of the Highway Traffic Act R.S.O. 1990, c. H.8, through the obstruct justice provisions of the Criminal Code.
[17] I do not agree.
Analysis
[18] The relevant portions of s. 129 of the Criminal Code state:
Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, ...
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
[19] The interesting question raised on this appeal is whether police officers, in the exercise of their legitimate duties under the Highway Traffic Act, have the authority to cause a vehicle to be removed from the highway, or to seize its licence plates at the roadside, when they reasonably believe the vehicle is uninsured. If they do not, then – subject to a further issue relating to the validity of the plate respecting the second issue, to which I will return – Mr. Waugh could not have been guilty of obstructing them in the execution of their duties.
[20] Peace officers act in the execution of their duty only if exercising a power conferred by statute or by common law: R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at p. 28. Mr. Di Luca argues that neither source of authority assists the Crown here.
Statutory Power
[21] I agree that the police power to impound a vehicle reasonably believed to be uninsured does not derive from statute. Nothing in the Highway Traffic Act or the Compulsory Automobile Insurance Act R.S.O. 1990, c. C.25, gives that authority.
[22] Ms. Stuart submits the power may be found in subsection 221(1) of the Highway Traffic Act, which provides:
A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper plates may take the vehicle into custody of the law and may cause it to be taken to and stored in a suitable place.
[23] Her argument goes like this. A vehicle must be insured to be operated lawfully on a highway in Ontario: Compulsory Automobile Insurance Act, s. 2(1); R. v. Zwicker (1994), 1994 CanLII 1221 (ON CA), 17 O.R. (3d) 171 (C.A.). If a vehicle cannot lawfully be driven, it becomes unusable and, therefore, effectively becomes abandoned. Abandoned – amongst other things – means “left empty or unused”: Canadian Oxford Dictionary, 2d ed., s.v. “abandoned”. An unusable and therefore “unused” vehicle that in effect becomes “abandoned” falls within the parameters of s. 221(1), and the police accordingly have discretion to take it into custody and cause it to be taken away to safe storage.
[24] The submission is clever but untenable, in my view. To say that Mr. Waugh’s vehicle was “left empty or unused” and therefore “abandoned” when in fact he insisted on remaining in it and (in the case of the first incident) actually drove off in it, would be stretching even the modern and flexible “purposive and contextual” approach to statutory interpretation too far. Mr. Waugh’s vehicle was not abandoned.
Common Law
[25] Neither the Police Services Act, R.S.O. 1990, c. P.15 nor, as mentioned above, the Highway Traffic Act or the Compulsory Automobile Insurance Act, expressly provide the police with authority to impound a vehicle reasonably believed to be uninsured. I am persuaded, nonetheless – as Ms. Stuart argued in the alternative – that the police had the authority to stop and impound Mr. Waugh’s vehicle based on powers inherent in the execution of their common law duties. Those duties include the preservation of the peace, the prevention of crime and the protection of life and property, from which is derived the duty to control traffic on the public roads: Dedman, at p. 32. The thrust of these duties is reflected in s. 42 of the Police Services Act as well.
[26] In Dedman, the Supreme Court of Canada adopted the test set out in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), at p. 661, in determining the extent to which the police are authorized by common law to interfere with the liberty and property of individuals. The Waterfield test is case specific but involves ascertaining:
(a) [Whether the police conduct in question] falls within the general scope of any duty imposed by statute or recognized at common law; and
(b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
[27] It may be true – as Mr. Di Luca contends – that the common law has never explicitly recognized the authority of the police to tow a vehicle as deriving from their general police duties. However, I see no reason why that should not be the case provided the Dedman/Waterfield test is met in the circumstances and provided the police act reasonably and prudently. Here, in my view, the test is met and the police acted reasonably and prudently.
[28] P.C. Churkoo and his companion officers were attempting to enforce the provisions of the Compulsory Automobile Insurance Act, acting on a reasonable belief, in both incidents, that Mr. Waugh’s vehicle was not insured. They were also acting pursuant to their common law duty to protect the life and property of the public and to ensure the safety of the roadways. The first branch of the test is satisfied.
[29] Was the use of the power justifiable in the circumstances, as required by the second branch? In my opinion, it was.
[30] An uninsured vehicle has no right to be on a public highway in Ontario. The police had a reasonable belief that Mr. Waugh’s vehicle was uninsured. What were they to do? If they permitted the uninsured vehicle to continue to be driven on the highway, they ran the risk of an accident occurring and of someone being seriously injured or killed without the benefit of the safety network envisaged by the Compulsory Automobile Insurance Act. If they did not permit the vehicle to be driven away – and it remained on the highway without being towed – it would constitute a hazard. The ability to impound the vehicle and have it towed away, in the circumstances, is a reasonable exercise of the police common law duty to prevent crime (the commission of further insurance-related driving offences), to protect the life and property of the public, and to control traffic on the public roads.
[31] Mr. Di Luca contends that the operation of motor vehicles is subject to a highly regulated and comprehensive statutory regime establishing the powers of the police and the penalties for violating this scheme. By failing to provide express statutory authority for the police to tow uninsured vehicles in these circumstances, the legislature has signalled a clear choice that the police are not to have such a power. This is particularly so where the legislature has chosen to provide express towing powers in other circumstances.[^1] The court should be reluctant, therefore, to fill in the gap by resort to the ancillary powers of police at common law, he submits.
[32] While this argument is somewhat convincing, it cannot carry the day in my view. I accept that courts should be cautious in extending police power by resort to their common law ancillary powers, particularly in circumstances where the legislature has put in place an elaborate and comprehensive regulatory regime with carefully balanced powers and sanctions. However, the compulsory automobile insurance scheme enacted in Ontario is an important lynch-pin in the overall regime to promote the safety and well-being of the public on the highways: see R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, per Cory J., at para. 44. It does so by attempting to ensure that, when accidents occur, there is a financial safety network in place to support those who sustain personal injury or property damage, and their families. That regime, and the role compulsory insurance plays in it, can only be reasonably protected if the police have the authority to cause uninsured vehicles to be removed from public highways and towed to safety in certain circumstances.
[33] Finally, it must be remembered that, while the right to circulate in a motor vehicle on the public highway is considered a “liberty” for purposes of the constitutional debate surrounding motor vehicle legislation, as the Supreme Court of Canada noted in Dedman, at p. 35:
In assessing the interference with this right … one must bear in mind … that the right is not a fundamental liberty like the ordinary right of movement of the individual, but a licenced activity that is subject to regulation and control for the protection and life of the public. [Emphasis added.]
[34] Thus – while it will depend upon the circumstances of the case whether the police were acting in accordance with their common law duties as measured through the parameters of the Dedman/Waterfield test – permitting the police to cause an uninsured vehicle to be impounded and towed to safety falls squarely within the exercise of their duty to protect the life and property of the public.
[35] These factors outweigh the concern for caution in extending police powers through resort to their common law duties in circumstances such as these.
Obstructing Police
[36] Accordingly, since the police were engaged in “the lawful execution of their duties” when attempting to impound Mr. Waugh’s vehicle in both instances, it was a question of fact whether his actions sufficiently frustrated the police efforts to constitute an offence under s. 129 of the Criminal Code. Both trial judges concluded they did, and the summary conviction appeal judge was correct in not interfering with their conclusions.
Were the Police Attempting to Use the Criminal Code Indirectly to Enforce Provincial Legislation?
[37] Mr. Waugh mounts an additional argument. He submits that even if the police were acting in the execution of their duties by attempting to enforce the Highway Traffic Act and the Compulsory Automobile Insurance Act, the charge of obstruct police under the Criminal Code was not open to them, given the presence of more moderate means of enforcement: see R v. Sharma, 1993 CanLII 165 (SCC), [1993] 1 S.C.R. 650; R v. Hayes (2003), 2003 CanLII 3052 (ON CA), 65 O.R. (3d) 787 (C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 435.
[38] In Sharma, the Supreme Court of Canada held that while the police have a general duty to enforce the law, police officers did not have a common law right to arrest and charge a flower vendor with obstruct police for repeatedly ignoring the officers demands to remove his wares from the street where he was operating without a licence, contrary to a city by-law. The legislation defined the enforcement power as ticketing the vendor. There is a significant difference, however, between the police duty to enforce a by-law against unlicenced street vendors and the police duty to enforce road safety in order to protect the life, well-being and safety of the public, as is the case here.
[39] Hayes involved an obstruct police charge laid in the context of a motorcyclist’s refusal to remove his helmet for inspection upon an officer’s request pursuant to s. 82 of the Highway Traffic Act. Subsection 82(3) of that Act addressed precisely the same problem, however, by providing for the imposition of a fine in such circumstances. McMurtry C.J.O. accordingly concluded, at para. 42, that “precisely the same misconduct” – that is, the refusal to submit the helmet for inspection – could not form the basis for a charge of obstruct police.
[40] Both s. 23 of the Highway Traffic Act and s. 2 of the Compulsory Automobile Insurance Act provide for fines as a means of enforcing the requirement that motor vehicles be insured. Neither statute provides for the power of arrest. Therefore, Mr. Waugh contends, a police officer’s power to enforce the statutes is limited to issuing tickets, as was the case in Hayes.
[41] In my view, however, the “precisely the same conduct” analogy does not fit here. The police were not attempting to use the obstruct police charge to enforce the Highway Traffic Act offences for which Mr. Waugh had already been ticketed, in relation to the first incident. Those tickets did not capture the offence committed, which was to interfere with the police officers’ efforts to impound the vehicle and have it towed away. Nor, with respect to the second incident, were they attempting to enforce the “fail to stop” requirements of s. 216 of the Highway Traffic Act. The offence of obstruct police, in that instance, was founded on Mr. Waugh’s attempts to frustrate both the towing of the vehicle and the investigation regarding the validity of the licence plate.
[42] Moreover, in neither incident was there any evidence that the police were attempting to utilize the provisions of the Criminal Code for punitive purposes.
[43] This ground of appeal must fail.
The November 1, 1999 Incident: Police Investigation of the Licence Plate
[44] The foregoing is sufficient to dispose of the appeal. There is a further basis upon which the conviction in relation to the November 1, 1999 incident should be upheld, however.
[45] The police charged Mr. Waugh with obstruction in relation to the second incident on two bases. First, he failed to stop his vehicle when instructed to do so. But secondly – and importantly – he intentionally locked his keys in the vehicle, thus preventing them from seizing his licence plate and investigating its validity.
[46] Recall that P.C. Churkoo and Mr. Waugh were somewhat acquainted by this time. It was the third occasion on which Mr. Waugh had been stopped by P.C. Churkoo on similar grounds. In the meantime, following the first incident, P.C. Churkoo had made enquiries of the Ministry of Transportation and the Financial Services Commission. He was informed that Mr. Waugh had obtained his vehicle permit by certifying that he was insured by a non-existent insurance company – “Your Own Insurance Company.” He had a reasonable belief, therefore, that the vehicle plate or its validation sticker may have been obtained by false pretences.
[47] On that basis, P.C. Churkoo was entitled to seize the plate that was located in the rear window of Mr. Waugh’s vehicle in order to investigate whether the plate or validation sticker had been obtained by means of a false statement in a certificate of insurance used to obtain it, contrary to subsection 13(2) of the Compulsory Automobile Insurance Act.
[48] Section 13 of that Act states as follows:
(1) Every person making an application for the issuance, validation or transfer of a permit for a motor vehicle shall certify, in the form prescribed by the regulations, that the motor vehicle is insured under a contract of automobile insurance and the Registrar, despite subsection 7(7) of the Highway Traffic Act, shall not issue, validate or transfer the permit for the motor vehicle, where such certificate of insurance is not provided to the Registrar.
(2) No person shall knowingly make a false statement in the certificate of insurance required under subsection (1).
[49] Subsection 14(1) of the Highway Traffic Act permits a police officer to seize a vehicle licence plate or evidence of validation of a permit if the officer has reasonable grounds to believe the number plate or evidence of validation of a permit was obtained by false pretences. This is what the police were attempting to do on November 1, 1999, when Mr. Waugh hastily jumped out the passenger side of his vehicle – the opposite side from where the police were standing – and locked the doors with the keys inside, thus frustrating their attempts to seize the plate. He is guilty of obstructing the police in the execution of their lawful duty on this basis as well.
Disposition
[50] For the foregoing reasons, I would dismiss the appeals and affirm the judgments below.
Signed: “R. A. Blair J.A.”
“I agree K. Feldman J.A.”
“I agree David Watt J.A.”
RELEASED: “KF” February 3, 2010
[^1]: See, for example, s. 48(12) of the Highway Traffic Act, which empowers an officer to remove a vehicle from a highway following a licence suspension for failing a roadside blood-alcohol test.