Court of Appeal for Ontario

Date: 2018-05-07 Docket: C65290

Judges: LaForme, Watt and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Chad Michael Gilchrist Appellant

Counsel

Chad Gilchrist, in person

Luke Schwalm, for the respondent

Heard: In writing

Appeal

Appeal in writing under s. 139(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 from the decision of Justice Timothy Culver of the Ontario Court of Justice, dated January 12, 2017.

Reasons for Decision

The Traffic Stop and Charge

[1] A police officer stopped a motor vehicle one afternoon in late December, 2012. The officer had noticed that the validation tag on the vehicle's licence plate had expired. Chad Michael Gilchrist was the driver of the vehicle.

[2] The officer asked Mr. Gilchrist to produce his driver's licence, ownership for the vehicle and proof of insurance. Mr. Gilchrist provided his driver's licence and proof of ownership of the vehicle. But he did not produce proof of insurance. Not then, and not within the next 72 hours.

[3] The officer charged Mr. Gilchrist with operating a motor vehicle without insurance contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. P.25 ("the CAIA").

The Trial Proceedings

[4] Mr. Gilchrist first appeared in Provincial Offences Court on May 23, 2013. He brought with him documentation that indicated that he was insured when he had been stopped in late December of the previous year. The Provincial Prosecutor sought and obtained an adjournment to verify the authenticity and accuracy of the documents Mr. Gilchrist produced.

[5] Mr. Gilchrist did not attend his next court appearance at which a trial date was set. Nor did he attend on the trial date. An in absentia trial and conviction followed.

The Appeal to the Ontario Court of Justice

[6] Mr. Gilchrist appealed his conviction to the Ontario Court of Justice. He indicated in his Notice of Appeal that he had insurance at the time he was stopped by police and that he had provided that documentation to the Provincial Prosecutor.

[7] A paralegal represented Mr. Gilchrist on his appeal to the Ontario Court of Justice. Although the paralegal did refer to the insurance documents Mr. Gilchrist had provided, he called no evidence, despite the authority in s. 117(1)(d) of the Provincial Offences Act which permitted him to do so, to demonstrate the existence of a valid policy of insurance at the time of the traffic stop.

[8] The appeal judge was not satisfied that the documents to which the paralegal referred constituted admissible evidence of a policy of insurance. The appeal judge dismissed the appeal and affirmed Mr. Gilchrist's conviction.

The Appeal to this Court

[9] Mr. Gilchrist filed a Notice of Motion for Leave to Appeal to this court. In his materials, he reiterated his claim that he was insured at the relevant time and had provided information confirming his insured status to the courts below.

[10] Counsel for the respondent undertook to conduct an inquiry to determine the legitimacy of Mr. Gilchrist's claim that he was insured at the time of the alleged offence.

[11] On March 27, 2018 an employee of belairdirect insurance company provided a statutory declaration under s. 13.2(2) of the CAIA. That declaration indicates that the vehicle Mr. Gilchrist was driving on the date of the alleged offence was covered by a policy of insurance then in full force and effect.

[12] On March 28, 2018 a judge of this court granted Mr. Gilchrist leave to appeal.

Discussion

[13] For the respondent, Mr. Schwalm acknowledges that the statutory declaration provides clear evidence that the vehicle Mr. Gilchrist was driving was covered by a valid policy of insurance. He concedes further that statutory declaration would have been admissible in evidence if tendered at trial, or before the appeal judge, and is admissible in evidence on the appeal to this court. It necessarily follows that Mr. Gilchrist did not commit the offence with which he was charged and of which he was convicted. He did not operate a motor vehicle without insurance.

Conclusion

[14] For these reasons, the appeal is allowed, the conviction set aside and an acquittal entered. Any fine paid by Mr. Gilchrist should be remitted to him.

"H.S. LaForme J.A."

"David Watt J.A."

"I.V.B. Nordheimer J.A."