Court File No. 2811 998 10 13962 00

2811 998 10 23549 00

Citation: R. v. Tavernier, 2013 ONCJ 108

IN THE ONTARIO COURT OF JUSTICE

CENTRAL EAST REGION

HER MAJESTY THE QUEEN

V

DARREL B. TAVERNIER

BEFORE: THE HONOURABLE MR. JUSTICE P.L. BELLEFONTAINE

at Oshawa, this 21st day of February, 2013

JUDGMENT

CHARGES:

Drive While Suspended

Unreasonable Noise

Fail to Identify

H.T.A.

Obstruct Peace Officer

Assault Peace Officer

C.C.C.

APPEARANCES:

T. HEWITT Counsel for the Crown

J. OLVER Counsel for Mr. Tavernier

THE COURT: Good afternoon Mr. Hewitt and Mr. Olver.

MR. HEWITT: Good afternoon, Your Honour. We have Mr. Tavernier before the Court.

THE COURT: Yes, thank you. And you’re welcome to have your seat there, Mr. Tavernier while I deal with my reasons in this matter.

BELLEFONTAINE J: REASONS FOR JUDGMENT

THE COURT: I can provide at this time my reasons for judgment in the matter of Darrel Tavernier who is charged with driving while suspended, driving a motor vehicle while permitting it to make unnecessary noise, and failing to identify himself when required, pursuant to s.139(1)(6) of the Highway Traffic Act, and as well three criminal counts with respect to assaulting and obstructing Constable Lewis.

I have considered all of the evidence and all of the arguments in this matter, and if I don’t mention any particular piece of the evidence or any particular argument raised, it is not a reflection of my not having considered it. The issues in the case are the reliability of the officer’s recollections of what occurred over two and a half years ago, and whether a valid arrest occurred pursuant to s.33(3) and s.217 of the Highway Traffic Act. Mr. Tavernier has not testified and I have cautioned myself not to draw any adverse from him not having done so. Everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt. The burden rests on the Crown throughout to prove that guilt, and there is a very high burden in your criminal case to establish your guilt, Mr. Tavernier, as required pursuant to Regina v. Starr and Regina v. Lifchus. Clearly there is no burden on yourself to establish your innocence in a situation like this.

On my analysis of the case, the criminal charges turn on whether a lawful arrest has occurred. In the absence of the lawful arrest, Officer Lewis would not have been engaged in his duty as required for the s.271(a) or s.129(a) charges and would not have had a lawful authority to arrest for the s.271(b) charge, and accordingly, Mr. Tavernier would be entitled to use reasonable force to resist the unlawful arrest. The Highway Traffic Act permits warrantless arrests in s.217 for limited purposes. The applicable one in the circumstances of this case is s.33(3) which provides, and I will read as well s.33(1) which is applicable here:

“s.33(1): Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.”

And subsection (3) states:

“Every person who is unable or refuses to surrender his or her licence in accordance with subsection 91) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or her self and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.”

This section was considered by our Court of Appeal in Regina v. Plummer 2006 ONCA 38165, [2006] O.J. No. 4530. The Court there took a strict approach to the interpretation of the section to give effect to the Legislature’s intention to have a limited arrest power for Highway Traffic Act matters and to limit an officer’s discretion as to when an arrest could be affected. In discussing the alternative interpretations that could be placed on the section, the Court stated at paragraph 36:

“When the Act was amended in 1969, at least one purpose of the Legislature was to bring the Act into conformity with the recommendations of the McRuer Report. This was achieved by limiting the scope of the warrantless arrest power to a failure to identify, not merely a failure to produce a licence, and removing the officer’s discretion to determine what constituted suitable identification. The Legislature must have intended that a person could not be arrested without warrant for failing or refusing to produce a licence and that something more or different was required. Interpreting the Act to require a separate request for identification alternative to the licence to trigger the arrest power is most consonant with that intention and the use in the English version of the two different terms ”demand” and “request.”

The Court went on and following a heading “Conclusion on Interpretation,” at paragraph 43, indicated:

“In my view, the proper interpretation of s.33(3) requires that the officer must make a specific request for identification other than a driver’s licence. Until that request for alternative identification has been made and the person has refused to comply, there is no contravention of the subsection. It follows that there can be no power to arrest without a warrant until the officer has made the request for alternative identification.”

Also of significance is paragraph 46 where the Court states:

“As the appeal judge observed, s.33 imposes positive legal duties on drivers to identify themselves. But, those duties are only triggered in the specific circumstances set out in ss.33(1) and (3). In this case, while the s.33(1) duty was triggered, the s.33(3) duty was not. The appeal judge said in his reasons:

‘A demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/he fails to identify herself/himself will be sufficient to trigger the arrest power in s.217(2).’

However, in this case the warning Constable Allcroft gave to the appellant was tied to the failure to produce his licence, ownership and insurance, not to a failure to provide alternative identification by way of his name and address. Thus, the arrest power was not triggered.”

From the foregoing, it is clear that the requirements of both s.33(1) and s.33(3) must be met before a failure to identify an individual will justify an arrest. The wording of s.33(3) also leads to the conclusion that s.33(1) requirements must be established by virtue of the words “refuses to surrender his licence in accordance with subsection (1).” I consider that s.33(3) thereby incorporates the s.33(1) requirements such that all must be complied with. The obligation to give reasonable identification under s.33(3) is accordingly only triggered if all of the following are proven:

• The person was the driver,

• Of a motor vehicle,

• And a peace officer,

• Made a demand under s.33(1)

• To surrender the licence,

• The person is unable or refused to surrender the licence; and finally,

• A further demand for reasonable identification is made of the driver by a peace officer.

In considering specifically Mr. Tavernier’s case whether the Crown has proven these requirements beyond a reasonable doubt, I would note that they have been hampered by the absence of the key arresting officer Constable Lewis, and the passage of time which has admittedly affected the memory of the supporting officers who have fairly acknowledged having imperfect recollection of the exact words used over two and a half years go. Significantly there is no evidence that Constable Delaney ever asked Mr. Tavernier for his driver’s licence. He likely did and it would be common practice to ask for a driver’s licence, ownership and insurance. His testimony however was generic on this point. He repeatedly used terms such as “I asked for his I.D., he was ranting. The only thing I could get out was a request for his documents.” “I asked for his name.” “I asked again for his I.D.” and “he refused to I.D. himself.” “I told him I had requested his documentation and he had refused to do so.”

These are examples of excerpts from my notes with respect to the officer’s testimony. I did not note any location where he had referred to asking for the driver’s drivers licence. Officer Delaney acknowledges he does not recall his exact words and that he cannot recall much of the conversation between Mr. Tavernier and Officer Lewis, and specifically could not say if Officer Lewis asked for Mr. Tavernier’s licence. He also acknowledged having only a general knowledge that he has the authority to arrest if people refuse to I.D. themselves.

Officer Jolicour’s evidence was also fairly given but also does not assist the Crown in establishing that the statutory requirements for an arrest were met. He testified that Officer Lewis told Mr. Tavernier he must identify himself, but does not recall if he did so by asking for his licence or name. He acknowledged not hearing all of the conversation and not being sure of the words that were used between the officers dealing with Mr. Tavernier and Mr. Tavernier.

On the foregoing evidence, I cannot be satisfied beyond a reasonable doubt that the s.33(1) requirements that a driver’s licence be demanded in addition to a subsequent demand for other reasonable identification was made. I have no direct evidence for a demand for a driver’s licence. The witnesses use of generic terms in court leaves open a real possibility that they used equally generic terms at the time. The unusual situation that arose where Mr. Tavernier parked his vehicle quickly in his parking lot before being stopped by the officer and angrily exited his vehicle and confronted the officer, clearly threw Officer Delaney off his normal routine enough that I cannot rely on any common practice to established at a proof beyond a reasonable doubt level that a demand for a driver’s licence was made. Officer Delaney’s general knowledge of his arrest authority as opposed to articulating the specific requirements, and not recognizing that a wrong section of the Highway Traffic Act had been used in the information charging the offence before the Court, further assists in raising a reasonable doubt. The less he is familiar with the detailed requirements for his arrest authority to be exercised, the less likely he is to have articulated them at the roadside.

While the complexity of the law on this point is regrettable, it is clear that the Legislature intended to restrict the ability of officers to arrest for Highway Traffic Act infractions and they have done so by imposing a number of pre-conditions to the arrest authority being exercised. Regina v. Plummer makes it clear that those pre-conditions must be strictly complied with.

Accordingly, I am not satisfied beyond a reasonable doubt that there was a valid, lawful arrest in this matter and accordingly, there will be findings of not guilty with respect to the criminal charges and the Highway Traffic Act fail to identify count which as mentioned, was also laid under, an inapplicable section of the Highway Traffic Act that related to drivers carrying passengers for compensation without a valid licence which his not been proven obviously in evidence before me.

With respect to the remaining counts, there will be findings of guilt. I have the uncontradicted evidence of Officer Delaney that Mr. Tavernier’s window was down and that he was playing music at an extremely loud level. He described it as being inappropriately loud and was interfering with pedestrians which I take it was loud enough to mean it was attracting their attention, and it was interrupting their other activities. He noted people on the sidewalk to be visibly disturbed. While this Provincial Offence charge does not require and externally manifested disturbance of the public peace as would be required for the criminal offence of causing a disturbance, the fact that the noise was at a level that distracted and drew the attention of pedestrians, is objective support for the officer’s evidence, which was otherwise as well very fairly given, that the music was unnecessarily loud.

With respect to the driving while suspended charge, I have uncontradicted evidence that Mr. Tavernier was operating a motor vehicle on a highway on this date. The defence have properly conceded the admissibility of the Certificate of Suspension and that it relates to Mr. Tavernier before the Court. The Certificate states that Mr. Tavernier was suspended effective the 18^th day of March, 2010 for non-payment of family support obligations, and that the Notice of Suspension was sent to him at his latest address on the records of the Ministry on the 18^th day of March, 2010, and that the suspension was in effect on the 17^th day of July, 2010, the offence date that I am dealing with. The defence notes that the address was a Hamilton address that the documentation was served at, and it is apparent from the evidence that he was staying with his wife in Oshawa on the 17^th of July, 2010, and accordingly that a reasonable doubt exists that he was personally not aware of the suspension. However, s.52 of the Highway Traffic Act provides that notice is sufficiently given if sent to the last address on file with the Ministry and by virtue of s.52(2), notice is deemed to have been given on the 7^th day after the mailing of the notice, unless the person to whom the notice is sent establishes that he, acting in good faith or a cause beyond his control, did not receive the notice.

There is in this case by virtue of that documentation a prima facie case that Mr. Tavernier was aware of his suspension and had received the notice. Mr. Tavernier has not testified to raise a reasonable doubt and rebut the prima facie case that he had not received the notice or was otherwise not aware of his suspension. The different address, given the three and three-quarter month gap from the mailing of the notice to the offence date, when he appears to be staying elsewhere, does not raise a reasonable doubt on it’s own or in the context of all of the evidence, and certainly does nothing to show that any lack of knowledge or receipt of the notice was as a result of a cause beyond his control. In the normal course individuals will arrange to have mail forwarded to them, and there is of course, the statutory requirement that drivers update the Ministry with their current addresses.

Accordingly, as indicated, there will be findings of guilt on the driving while suspended charge and the unnecessary noise charge, pursuant to the provisions of the Highway Traffic Act.

(COURT REPORTER’S NOTE: At this time, the sentencing was proceeded with. May be typed upon request.)

Form 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Jodi J. Hewett, certify that this document is a true and accurate transcript of the recordings of Her Majesty the Queen v. Darrel B. Tavernier, in the Ontario Court of Justice, Oshawa, Ontario taken from Recordings No. 2811-403 800512-20130221-085252 made by Deborah Seaton, Court Reporter, on the 21^st day of February, 2013 which has been certified in Form 1.

Date Jodi J. Hewett

Certified Verbatim Reporter

NOTE:

Photostat copies of this transcript are not certified and have not been paid for unless they bear the original signature of Jodi J. Hewett and accordingly are in direct violation of Ontario Regulation 587/91, the Courts of Justice Act, January 1, 1990.

Transcript Ordered: February 21, 2013 Transcript Completed: March 3, 2013

Transcript Approved for Release: March 2013