Court File and Parties

Court File No.: Whitby 2860 999 120047 Date: 2011-12-17 Ontario Court of Justice

Between: Regina — and — Kimberly A. Lo-Hing

Before: Justice of the Peace M. Coopersmith

Heard on: December 14, 2012

Reasons for Judgment released on: March 20, 2013

Counsel:

• Ms. D. Bronowicki for the prosecution
• Mr. S. Parker for the defendant Kimberly A. Lo-Hing

JUSTICE OF THE PEACE COOPERSMITH:

[1] Charge

[1] On December 17, 2011, Kimberly A. Lo-Hing was charged with driving while her driver's licence was suspended, contrary to subsection 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended ["HTA"]. Subsection 53(1) reads:

"Drive while driver's licence suspended – Every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000.

or to imprisonment for a term of not more than six months, or to both."

[2] A trial took place on December 14, 2012. Durham Regional Police Officer Colin Thompson was the only witness called by the prosecution. Certified documentation from the Registrar of Motor Vehicles, Ministry of Transportation, showing the defendant's licence had been suspended was entered as an exhibit. The defendant was not present, but was represented by her agent. The defence presented no evidence.

I. ISSUES

[3] Two issues have been identified:

a) Does certified documentation from the Registrar of Motor Vehicles, showing the defendant's driver's licence was suspended for unpaid fines, contravene the Evidence Act, R.S.O. 1990, c. E.23, as amended, by inferring a prior conviction against the defendant who has not put her character in question?

b) Given the outcome of the first issue, has the charge of 'drive while driver's licence suspended' under subsection 53(1) of the Ontario Highway Traffic Act been proven beyond a reasonable doubt?

II. EVIDENCE AND FINDINGS

[4] The only viva voce evidence was that of Durham Regional Police Officer Colin Thompson. On December 17, 2011, he was part of the festive RIDE team, checking for impaired drivers. As he drove southbound on Simcoe Street, in Oshawa, he observed a grey, 4-door Chrysler motor vehicle exit the parking lot of the liquor establishment known as the Crooked Uncle. The vehicle drifted in and out of its lane as it proceeded southbound in front of the officer along Simcoe Street.

[5] The officer conducted a traffic stop on Simcoe Street near Darcy Street and informed the driver that she was drifting in and out of her lane. He detected an odour of alcohol emanating from inside her vehicle. However, from speaking face to face with the driver, Officer Thompson did not believe she had been drinking. When a demand for documents was made, the driver was unable to produce a driver's licence. She identified herself verbally as Kimberly Lo-Hing and provided a date of birth of July 21, 1974 and an address of Unit 303, 19 Whiting Avenue in Oshawa. After further investigation to confirm this information, the officer was satisfied that the driver was Kimberly Lo-Hing. The Court is satisfied that the officer investigated sufficiently to find that the driver of the motor vehicle that evening was Kimberly Lo-Hing, who is the defendant before this Court.

[6] Following a voir dire, I determined that a statement made by the defendant to the officer, although not verbatim, was provided voluntarily. She advised the officer that she knew her driver's licence was suspended; however, she was driving her husband home, as he had consumed alcohol at the Crooked Uncle.

[7] The prosecution entered as an exhibit, certified documentation from the Registrar of Motor Vehicle, Ministry of Transportation. It indicated, inter alia, that Kimberly Ann Lo-Hing, with an address of Unit 303, 19 Whiting Avenue, in Oshawa, and a date of birth of July 21, 1974, had her driver's licence suspended on September 28, 2011 and this suspension was in effect on December 17, 2011.

[8] The first page of this certified documentation bears a signature imprint of the Registrar of Motor Vehicles and the seal of the Ministry of Transportation. In more detail it states:

"I hereby certify from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act that the driver's licence of Kimberly Ann Lo-Hing, a female person, born the 21st day of July in 1974, whose latest address is 19 Whiting Ave., Ap303, Oshawa, Ontario, was suspended effective the 28th day of September 2011 pursuant to a Court Order under the Highway Traffic Act for default of payment of a fine.

I further certify that notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 28th day of September 2011 to Kimberly Ann Lo-Hing at 19 Whiting Ave. Ap303, Oshawa, Ontario which was the latest address on the records of the Ministry and that the said suspension was in effect on the 17th day of December 2011.

I further certify that the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation.

Given under my hand and the seal of the Ministry of Transportation, this 20th day of July 2012."

[9] The annexed page is entitled "Notice of Suspension of Driver's Licence". It is dated September 28, 2011 and at the bottom is typed the name of the Deputy Registrar of Motor Vehicles. It begins "Date of birth 1974/07/21 Female", followed by "Lo-Hing, Kimberly, Ann, 19 Whiting Ave Ap 303, Oshawa Ont. L1H 3T4." The body of the letter continues:

"Your driver's licence is suspended under section 46 of the Highway Traffic Act for not paying a fine or fines effective Sept. 28, 2011. Driver's licence suspensions will also affect your combined photo card, known as an enhanced driver's licence (EDL), if you are an EDL holder.

Your licence will remain suspended until all fines are paid. Fine payments must be made to a Provincial Offences Act court office. Call your local Provincial Offences Act court office for fines information and payment locations.

Note: After fines payment is received a minimum of 4 days is needed to process reinstatement of your licence.

Reinstatement fee or monetary penalty: Due to your suspension(s), you must pay a $150 fee or penalty to obtain a licence after your suspension(s) ends. Please see back of this form on how to pay."

[10] Comparing the name, address and date of birth on this documentation to that of the defendant, as provided by the officer, I am satisfied that it refers to the defendant, Kimberly A. Lo-Hing.

III. ANALYSIS

(a) Does certified documentation from the Registrar of Motor Vehicles, showing the defendant's driver's licence was suspended for unpaid fines, contravene the Evidence Act, R.S.O. 1990, c. E.23, as amended, by inferring a prior conviction against the defendant who has not put her character in question?

[11] This certified documentation from the Office of the Registrar, Ministry of Transportation, is tendered by the prosecution in accordance with subsections 210(7), (8) and (9) of the HTA, as prima facie evidence that the suspension of the defendant's driver's licence was in effect on December 17, 2011. These subsections state:

"(7) Evidence – A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.

(8) Signature of Registrar – The Registrar's signature on a copy or statement described in subsection (7) may be an original signature or an engraved, lithographed, printed or otherwise mechanically or electronically reproduced signature or facsimile signature.

(9) Seal of the Ministry – The seal of the Ministry on a copy or statement described in subsection (7) may be affixed by impression or may be an engraved, lithographed, printed or otherwise mechanically or electronically reproduced seal or facsimile of a seal."

[12] The defendant's agent submits that the certified documentation from the Registrar of Motor Vehicles at the Ministry of Transportation is inadmissible as evidence against the defendant. It shows that the defendant's driver's licence was suspended effective September 28, 2011 "pursuant to a Court Order under the Highway Traffic Act for default of payment of a fine". The September 9, 2011 letter to the defendant, annexed to this certified document, also references the suspension "for not paying a fine or fines effective" and further that the defendant's "licence will remain suspended until all fines are paid. Fine payment must be made to a Provincial Offences Act court office." And finally "After fines payment is received a minimum of 4 days is needed to process reinstatement of your licence." [Emphasis added.]

[13] It is the agent's position that the reason for the suspension (i.e. "for default of payment of a fine", etc.) infers that the defendant has a prior driving record conviction. The existence of a prior driving conviction cannot be put before the court if the defendant has not first put her good character in this regard in issue. At no time was the defendant in the courtroom on December 14, 2012. She was not a witness to these proceedings. Hence, she did not give evidence of her character. The agent submits that the certified documentation, inferring a prior conviction under the HTA, is not admissible and should be rejected by the Court.

[14] Although the defence agent did not provide me with a specific section, subsection 22(1) of the Evidence Act, R.S.O. 1990, c. E.23 prohibits prior convictions of a witness from being put before the court if the witness has not denied the fact or refused to answer.

[15] Subsection 22(1) of the Evidence Act reads:

"Proof of previous conviction of a witness – A witness may be asked whether he or she has been convicted of any crime, and upon being so asked, if the witness either denies the fact or refuses to answer, the conviction may be proved, a certificate containing the substance and effect only, omitting the formal part, of the charge and of the conviction, purporting to be signed by the officer having the custody of the records of the court at which the offender was convicted, or by the deputy of the officer, is, upon proof of the identity of the witness as such convict, sufficient evidence of the conviction, without proof of the signature or of the official character of the person appearing to have signed the certificate."

[16] The Ontario Evidence Act governs admissibility of evidence in proceedings under provincial legislation. Under subsection 22(1), the defendant, like any other witness, may be questioned on whether he or she has been convicted of a criminal offence, but only to the extent of challenging the credibility of the witness. This questioning is subject to the discretion of the justice, depending on whether the prejudicial effect of admitting evidence of a prior criminal conviction outweighs its probative value [see e.g. R. v. Corbett, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1, [1988] 1 S.C.R. 670]. Similarly, at common law, proof of prior bad acts to impeach the defendant is allowed, but only where the defendant first has put his or her character at issue. Use of prior convictions goes only to the credibility of the defendant and cannot be used at trial to determine guilt.

[17] Deep v. Wood, 143 D.L.R. (3d) 246, 33 C.P.C. 256, [1983] O.J. No. 23 extends section 22 to regulatory offence convictions; that is, a witness could be asked if he or she had been convicted, not just of a criminal offence, but also of any regulatory offence. Applying these principles to the matter before this Court, the defendant may be asked if she has been convicted under the HTA, but only where that conviction reflects on the dishonesty or lack of truthfulness of the defendant.

[18] I note that the certified documentation of the Registrar or Motor Vehicles infers a driving record, but does not give any particulars of the nature of the prior regulatory offence conviction. The more similar the prior offence conviction to the conduct for which the defendant now finds herself before this Court, the greater the prejudice to the fairness of her trial, for example, from prejudice against the defendant by the finder of fact [see R. v. Corbett, supra]. However, since the nature of the defendant's prior offence conviction is not provided, the fact that she may have a prior conviction for an offence under the HTA has neither prejudicial nor probative value and does not go to my finding of whether to dismiss the charge against her or to make a finding of guilt. Nor does it in any way impeach the defendant's character, as this trial does not turn on credibility.

[19] I do not intend to use the impugned phrases, "for default of payment of a fine", etc., as they lend nothing to my final determination of this matter. I am satisfied that there are a myriad of reasons for the suspension of a driver's licence, for example, for medical reasons. The fact that the defendant's driver's licence was suspended is relevant; the reason why it was suspended is not.

[20] Therefore, I find that section 22 of the Ontario Evidence Act does not preclude this certified documentation in its totality. With the exclusion of the impugned phrases, the document is admissible as prima facie evidence that the defendant's driver's licence was suspended effective September 28, 2011, pursuant to an Order under the HTA, service of notice of the licence suspension was effected as required under section 52 of the HTA, and the licence suspension was in effect on December 17, 2011.

[21] To further bolster my findings, I refer to R. v. Triumbari, 29 O.A.C. 326, 43 C.R.R. 379, 42 C.C.C. (3d) 481, 8 M.V.R. (2d) 1, [1988] O.J. No. 1043. Although this case does not decide whether certified documentation from the Ministry, which infers a prior regulatory conviction, runs counter to the Ontario Evidence Act, the facts and the findings of the Ontario Court of Appeal lend insight into the matter before me.

[22] The defendant challenged the constitutionality of certain provisions under the Ontario Highway Traffic Act and Provincial Offences Act. One of these provisions was Subsections 184(3) and (4), now subsections 210(7) and (8) of the HTA. The prosecution wished to enter as prima facie evidence going to the defendant's guilt, certified documentation of the Registrar of Motor Vehicles showing the defendant's licence had been suspended for driving while his licence was suspended. These documents had not been provided in disclosure.

[23] The original appeal of the Justice of the Peace's conviction was heard by Provincial Court Judge Vanek in the Ontario Provincial Court (Criminal Division) [see R. v. Triumbari, [1987] O.J. No. 1960]. It describes the document in question in great detail as:

"Exhibit 2 – a document purporting to be a certificate under the signature of "Registrar of Motor Vehicles" stating that the driver's licence of the appellant whose latest address on the records of the ministry is 21 Dovehaven Crt., Downsview, Ontario, was suspended effective the 28th day of November, 1985, pursuant to the Highway Traffic Act for driving while licence is suspended. The document goes on to certify that, "A notice of this suspension, a record of which is hereto annexed, was forwarded by registered mail on the 24th day of January, 1986, to Cosimo Triumbari at 21 Dovehaven Crt., Downsview, Ontario, which was then the latest address on the records of the Ministry and that the said suspension was in effect on the 29th day of March 1986. To this document there is attached an additional paper certified to contain true statements of information from the records of the Ministry required to be kept under the Highway Traffic Act. The certificate bears the seal of the Ministry and what appears to be an imprint of the signature of the Registrar of Motor Vehicles. The paper annexed is headed "Notice of Suspension", is addressed to the appellant at the above noted address, purports to have been sent by registered mail, and states, in brief:

"Your driver's licence is suspended Traffic Act [sic] effective 28 November, 1985, for a period of five months and twenty-seven days. (Balance of period not served pending outcome of appeal) – reason – conviction of driving while licence is suspended – HTA, (Appeal dismissed).""

[24] The document to which the defence agent objects is similar to that in Triumbari, supra. However, unlike the document in Triumbari, supra, which states the defendant's prior conviction for driving while his driver's licence was suspended, no prior specific HTA conviction against the defendant is stated. Nonetheless, the defence agent argues that a prior conviction may be a reasonable inference, to which I do not disagree, although such suspension might have been put in place, for example, for medical reasons.

[25] Houlden J.A., writing for the Ontario Court Appeal, in Triumbari, supra, determined that subsections 184(3) and (4) of the HTA, admitting this certified documentation as prima facie evidence, did not infringe the defendant's Charter rights, even though the documents had not been disclosed prior to the trial. Further, I note that the defendant was charged was driving while his licence was suspended – the same charge as the prior conviction shown on the certified documentation. Nevertheless, the Court of Appeal, which is well versed on rules of evidence and principles guiding its admissibility, did not find any prejudice against the defendant which might have outweighed the probative value of this evidence.

[26] Since the Ontario Court of Appeal has determined that the document pertaining to the defendant's suspension of his driver's licence is admissible; therefore, I am satisfied that the Ontario Evidence Act does not preclude admissibility of the certified documentation from the Registrar of Motor Vehicles for the defendant before this Court, in which no explicit wording of the exact nature of any prior conviction for a regulatory offence is present. Furthermore, I am satisfied that I can disregard the impugned phrases.

[27] In summary, I accept parts of the certified documentation from the Registrar of Motor Vehicles relating to records of the defendant before me. In the absence of evidence to the contrary, there is prima facie evidence that the defendant's driver's licence was suspended under the HTA on September 28, 2011, she was served notice of this suspension in accordance with section 52 of the HTA and the suspension was in effect on December 17, 2011.

(b) Has the charge against the defendant of 'drive while driver's licence suspended' under subsection 53(1) of the Ontario Highway Traffic Act been proven beyond a reasonable doubt?

[28] I accept the officer's uncontradicted evidence that, on December 17, 2011, he observed the defendant driving a motor vehicle southbound on Simcoe Street in Oshawa. In the absence of evidence to the contrary, certified documentation from the Registrar of Motor Vehicles illustrates that on September 28, 2011, the defendant's driver's licence was suspended under the HTA. This suspension was still in effect on December 17, 2011, the day the officer observed the defendant driving southbound on Simcoe Street.

IV. CONCLUSION

[29] On the totality of the evidence that I do accept, I am satisfied beyond a reasonable doubt that all of the elements of the offence of 'drive while driver's licence suspended' against the defendant, Kimberly A. Lo-Hing, under subsection 53(1) of the HTA, have been proven beyond a reasonable doubt. There will be a finding of guilt and the conviction will be registered with the Ministry of Transportation.

Released: March 20, 2013

Signed: "Justice of the Peace M. Coopersmith"