COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scantlebury, 2016 ONCA 453

DATE: 20160608

DOCKET: M45910

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Kimberly Scantlebury

Applicant

Kimberly Scantlebury, acting in person

Robin Squires, amicus

Grace Choi, for the respondent

Heard: May 10, 2016

ENDORSEMENT

A. Background

[1] This is a motion for leave to appeal to the Court of Appeal against an appeal judgment under the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”).

[2] The applicant was charged on July 21, 2014 with operating a motor vehicle without insurance, contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, surrendering false evidence of insurance to a police officer, contrary to s. 2(3)(b) of the Compulsory Automobile Insurance Act, and driving while under suspension, contrary to s. 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[3] The applicant did not attend court on her trial date of May 27, 2015. An ex parte trial was held in her absence, and Justice of the Peace Cruz convicted the applicant of driving with no insurance and of surrendering false evidence of insurance to a police officer. The charge of driving while under suspension was withdrawn by the prosecutor. The minimum fine of $5,000 was imposed on each conviction, for a total fine of $10,000. With the mandatory surcharge, the applicant owes $12,500.

[4] The applicant appealed and the appeal was heard and dismissed by Omatsu J. on November 26, 2015. The applicant is seeking leave to appeal both conviction and sentence to this court.

[5] The applicant filed an affidavit together with some exhibits intended to explain her absence on the date of her trial and her due diligence defence. The applicant argues that defence of due diligence was available to her, which she tried unsuccessfully to put before the appeal judge.

[6] The applicant explained that she missed her trial because her mother, who lives in the Barbados, was ill with a brain tumour and required treatment in Jamaica. She left Canada on February 24, 2015. She originally intended to return on March 11, 2015. However, her mother continued to need her and she missed the return flight. She returned on June 7, 2015, some days after the trial date. She explained that she sent a friend to request an adjournment but the friend arrived late, after the court closed.

[7] On the merits of the due diligence defence, the applicant states that her insurance lapsed because her bank account was overdrawn. She says that as soon as she discovered that the original insurance had lapsed, she immediately secured new insurance. The evidence is that the insurance company sent her a one month warning letter by registered mail, which she did not pick up. The insurance company sought to withdraw premiums from her account just before the date that the charges were laid, but the account did not have enough money in it. The applicant offers no explanation for the lack of money in her account. However, she asserts that she believed there were sufficient funds in the account to cover the insurance, and she believed she was covered by valid insurance on the date that she was stopped.

[8] The applicant was present for her appeal. The transcript notes that the applicant explained on the date she was pulled over she believed she had valid insurance with the same company that had insured her for five years. She advised the appeal judge that she did not receive a letter from the insurance company or telephone call cancelling the insurance.

[9] An exchange occurred between the appeal judge and the applicant:

THE COURT: You don’t dispute that you had no insurance, and you don’t dispute and you can’t prove that you did, and you can’t prove that your insurance papers were false [sic], so I’m not sure exactly what the point would be of having to start over again.

APPLICANT: Ma’am, my insurance slip was not false.

[10] The applicant advised the appeal judge she was extremely confused about what was happening during the appeal hearing. She also said she could not afford the fines. Then she said she that she wanted a trial. The appeal judge suggested the applicant could come back on another date and prove her financial situation. After indicating that the matter would be adjourned to deal with the fine, a perplexing exchange occurred:

APPLICANT: So, who would I speak to about the fine?

THE COURT: Well, usually you speak to the prosecutor, and you show them some evidence where your financial situation, so they ...

THE APPLICANT: Well, I did that before when I did the appeal thing. I wrote down everything about my financial situation when I first got the [indecipherable].

THE COURT: Well, then I’m just going to dismiss the appeal.

THE APPLICANT: Why, your Honour.

THE COURT: Okay, thank you.

B. The Test for leave to appeal

[11] Sections 131(1) and (2) of the POA set out the test for determining whether leave to appeal should be granted::

131. (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

[12] The principles for granting leave to appeal leave under s. 131 of the POA are set out in Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must be a question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential, in the sense of “material, important,” in the public interest or for the due administration of justice: R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155 (C.A.), at para. 13.

[13] However, where there has been a failure of natural justice, in the sense that the defendant has not been heard, leave may be granted: R. v. Jamieson (1981), 1981 CanLII 3223 (ON CA), 64 C.C.C. (2d) 550 (Ont. C.A.), aff’d by R. v. Jamieson (1982), 1982 CanLII 3910 (ON CA), 66 C.C.C. (2d) 576 (Ont. C.A.).

C. Analysis

(1) Conviction Appeal

[14] Operating a motor vehicle without insurance and surrendering false proof of insurance are strict liability offences. Upon proof of the facts, the accused will be convicted unless she can establish a due diligence defence. As stated by the Supreme Court in R. v. Sault Ste Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, the court must consider what a reasonable person would have done in the circumstances. The Supreme Court noted at p. 1326 that the defence of due diligence “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.”

[15] In my view, the applicant has not satisfied the test for leave to appeal against conviction. A review of the record shows that the applicant cannot succeed on a due diligence defence.

[16] The insurance company sent the applicant a registered letter informing her that her insurance would be canceled due to the non-payment of premiums. That letter was returned to the insurance company undelivered because she never collected it from the post office. The applicant did not explain why she failed to do so.

[17] The record also shows that the insurance company made several attempts to withdraw money from the applicant’s bank account that failed due to a lack of funds. Again, the applicant offered no explanation as to why she did not remedy this situation. Simply put, a reasonable person in the applicant’s position should have been aware that there were insufficient of funds to pay her insurance, which jeopardized her coverage.

[18] Nor do I think there was a failure of natural justice related to the trial. The applicant had notice of the trial and was obliged to attend or make other arrangements, which she failed to do.

(2) Sentence Appeal

[19] I would grant leave to appeal against sentence, for three reasons. The first has to do with the failure of natural justice before the appeal judge.

[20] The applicant’s sentence appeal invokes ss. 57(3) and 59(2) of the POA. Section 57(3) of the POA allows a court to make inquiries as to the defendant’s economic situation prior to sentencing. Section 59(2) of the POA provides that, in exceptional circumstances, a court may either suspend the sentence or impose a fine lower than the prescribed minimum where it would be unduly oppressive or not in the interests of justice.

[21] The applicant was ordered to pay $12,500 in fines. To put this number in perspective, the record shows that the applicant earned a total of $4,440 derived from social assistance payments in 2014 and $7,500 in 2013. Because the trial proceeded on an ex parte basis, no inquiry was made regarding the applicant’s ability to pay the fine and she received no opportunity to make submissions on sentence.

[22] However, this opportunity ought to have existed at the applicant’s appeal. The transcript of the appeal shows that the applicant expressed her inability to pay the fine as ordered. The appeal judge clearly understood this, and essentially told the applicant several times that she was in fact asking to have her fine reduced. Perplexingly, rather than adjourn the proceedings the appeal judge initially proposed to permit the applicant to make submissions on sentence, the appeal judge summarily dismissed the entire appeal.

[23] The appeal judge dismissed the appeal of a self-represented applicant of extremely limited financial means who was convicted at an ex parte trial, without making any inquiries or permitting the applicant to make submissions on a sentence which is almost three times her annual income. In doing so, the appeal judge did not consider whether this was an “exceptional case” which warranted the application of s. 59(2) of the POA.

[24] Second, I am troubled by the imposition of two mandatory fines where the underlying delict is the absence of insurance in this particular case.

[25] Ms. Scantlebury was charged and convicted under ss. 2(1)(a) and 2(3)(b) of the Compulsory Automobile Insurance Act. Section 2 reads, in part:

2. (1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

(3) Every owner or lessee of a motor vehicle who,

(a) contravenes subsection (1) of this section or subsection 13 (11); or

(b) surrenders an insurance card for inspection to a police officer, when requested to do so, purporting to show that the motor vehicle is insured under a contract of automobile insurance when the motor vehicle is not so insured

Is guilty of an offence and is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000 and, in addition, his or her driver’s licence may be suspended for a period of not more than one year.

[26] In this case, while the defence of due diligence would not have succeeded, there is no evidence that the applicant did not honestly believe she had insurance when she proffered the insurance card. It seems odd to double the fine where she would have been spared by simply refusing or failing to produce an insurance card. Even more so because she was obliged by the law to surrender the card for inspection under s. 3(1) of the Act.

[27] Third, some guidance on how the totality and the proportionality sentencing principles should be applied in these and similar circumstances would be useful.

[28] I would grant leave to appeal sentence to decide whether the appeal judge erred in failing to consider the application of s. 59(2) of the POA and whether the applicant should have her sentence reduced or suspended as a result.

[29] The Crown submits that leave to appeal should not be granted because there are alternative statutory remedies available to the applicant. Specifically, the Crown points to s. 69(15) of the POA which provides for relief in the event the applicant defaults in paying the fine.

[30] This approach would not appear to be consistent with the objectives of sentencing. One of the guiding lights of the Criminal Code is that a sentence should be proportionate. Section 59(2) of the POA is the codification of this principle for non-criminal offences. The Crown’s position would result in s. 59(2) being ignored in favour of requiring defendants to first default on an unduly harsh fine before receiving relief. I would view this as an unsatisfactory outcome.

D. Disposition

[31] The motion for leave to appeal against conviction is dismissed and the motion for leave to appeal against sentence allowed.

“P. Lauwers J.A.”