Her Majesty the Queen v. David

[Indexed as: R. v. David]

Ontario Reports

Ontario Court of Justice,

Keaney J.

December 4, 2014

123 O.R. (3d) 598

Case Summary

Criminal law — Provincial offences — Employee of car dealership driving vehicle with dealer plate on her way to work — Employee convicted of unauthorized use of dealer plate — Employee's appeal allowed — Trial judge erring in relying on evidence of arresting officer that dealer plates could only be used by owner or member of owner's family or for purposes related to sale — Relevant regulation permitting "private use" of dealer plate by persons other than owner and owner's family — R.R.O. 1990, Reg. 628, s. 13(2).

The defendant was employed by a car dealership. She was stopped by a police officer while driving a car with a dealer plate on her way to work and was charged with unauthorized use of a dealer plate. The arresting officer testified at trial that a dealer plate could only be used by the owner or a member of the owner's family or by an employee for purposes relating to the sale of a vehicle. The trial judge accepted that evidence and convicted the defendant. The defendant appealed.

Held, the appeal should be allowed.

Section 13(2) of R.R.O. 1990, Reg. 628 permits the "private use" of a dealer plate by persons other than the owner and the owner's family. The trial judge erred in relying on the erroneous evidence of the arresting officer. The record did not provide a sufficient evidentiary basis to decide whether the vehicle was part of the inventory offered for sale by the dealer, another prerequisite of the lawful use of the dealer plate, so a new trial must be ordered.

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 12(1) (f)

Provincial Offences Act, R.S.O. 1990, c. P.33 [as am.], s. 120(1)(a)(ii) [page599]

Rules and regulations referred to

R.R.O. 1990, Reg. 628, s. 13(2), (4)

APPEAL by the defendant from conviction.

K. Wiedekowsky, for prosecution.

A. Bak, for appellant.

[1] KEANEY J.: — The Used Car Dealers' Association of Ontario licenses 4,600 dealers. One must be licensed by that association to be a salesperson. Salespersons can be employees of incorporated dealerships.

[2] This appeal involves application of R.R.O. 1990, Reg. 628 (the "Regulation") regarding the permitted uses of dealer number plates.

[3] On March 4, 2014, Huma David was found guilty in Provincial Offences Act, R.S.O. 1990, c. P.33 proceedings, of using plates not in accordance, contrary to s. 12(1)(f) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[4] With the backing of the Used Car Dealers' Association, she appeals that conviction, seeking an order of acquittal, in the alternative an order setting aside the conviction and directing a new trial, and the further alternative an order setting aside the sentence and substituting it with a sentence the Provincial Offences Appeals Court may deem just.

Evidence at Trial

[5] On December 30, 2013, Ms. David was stopped by Peel Regional Police, the officer noting that her vehicle had no front licence plate.

[6] The officer testified that after stopping the vehicle, he observed an Ontario dealer plate attached to the rear of the vehicle.

[7] The officer testified the accused advised him the car belonged to the dealership at which she was employed. The officer testified as to his understanding that the dealer plate was for the use of the owner of the dealership for personal use or for a sales associate in the course of the sale of the vehicle, or the use of a family member of the owner of the dealership.

[8] The officer testified that at the scene the appellant advised she was going to work, at which point the officer advised that that plate could not be used for personal use.

[9] The appellant provided the officer with all requested documentation. He determined the vehicle was registered to Dixie Ford Sales Limited, displaying a dealer plate 675 DNR, and with a V.I.N. number that matched. [page600]

[10] The officer went on to testify as to his understanding in respect of use of the dealer plate, that it is for the owner of the dealership, providing insurance coverage to use the vehicle for personal use, and for a sales associate to be used in the course of a sale, and that insurance does not cover personal use.

[11] The appellant was unrepresented at trial. She testified she was an employee of the corporate dealership. She testified that she had insurance coverage; that her personal vehicle had been sold the prior evening; and that, as a result, she had been unable to transfer her plate and was therefore operating the dealer vehicle, with permission, with the dealer plate.

Argument on Appeal

[12] On behalf of the appellant, it is argued that the learned justice of the peace inappropriately gave weight to the erroneous interpretation of the arresting officer's assessment of the applicable law regarding the use of dealer plates.

Law

[13] R.R.O. 1990, Reg. 628 states as follows:

13(1) Upon filing satisfactory evidence as to the need for it, a Dealer permit and number plate may be issued to a dealer in motor vehicles, other than motorcycles and motor assisted bicycles, who,

(a) is a motor vehicle dealer registered under the

Motor Vehicle Dealers Act, 2002; or

(b) is a motor vehicle dealer referred to in clause 2(2) (c.1) or (c.2).

(2) A Dealer number plate may be used only on a motor vehicle that is owned, by the person to whom the Dealer permit corresponding to the Dealer number plate is issued, as part of the inventory that is offered for sale by the person and only for private use in Ontario or for purposes related to the sale of the motor vehicle.

(3) A Dealer number plate may be used only on a commercial motor vehicle that is owned, by the person to whom the Dealer permit corresponding to the Dealer number plate is issued, as part of the inventory that is offered for sale by the person and only for purposes related to the sael of the commercial motor vehicle.

(4) A Dealer number plate shall not be used on a motor vehicle, including a commercial motor vehicle, that is kept for private use or for hire.

(5) A Dealer number plate shall not be used on a commercial motor vehicle that is loaded with goods.

(Emphasis added)

[14] The appellant submits that as an employee of the dealership she was authorized to operate the subject vehicle with the dealer number plate attached for her "private use". [page601]

[15] It is argued on behalf of the appellant that the following considerations need be brought to bear in determining whether the language used in s. 13(2) of the Regulation permits the dealer number plate to be used for personal use:

-- there was a dealer number plate being used;

the dealer number plate was used on a vehicle owned by the dealer;

-- the dealer number plate was owned by the dealer;

the vehicle with the dealer number plate was part of the owner's inventory offered for sale;

the vehicle was being used in Ontario for private, not a commercial, purpose.

[16] In his reasons for judgment, the learned justice of the peace clearly indicated he relied on the officer's evidence, argued to have been erroneous, that the dealer plate authorized use only by the owner, a member of the owner's family, or for purposes related to the sale.

[17] His Worship stated:

. . . you cannot use the dealer plate unless you are a family member of the dealer or the car is being demonstrated for purchase (somebody is looking at it, so it's being driven with a dealer plate).

. . . the bottom line in this is that the type of dealer plates that were found in your car is only permitted for the owner or family member, or if you're demonstrating the car for purpose of sale.

[18] His Worship made a finding of guilt.

[19] A close examination of s. 13(2) does not support the learned justice's opinion that use of the dealer plate is restricted to a family member of the dealer or for purposes of demonstration for sale. Rather, the section permits ". . . private use in Ontario or for purposes related to the sale of the motor vehicle" (emphasis added). The permitted uses are described in a disjunctive, not conjunctive manner.

[20] I conclude that the Regulation does not preclude the private use in Ontario, by a dealer's employee, of a number plate on a motor vehicle owned by the dealer.

[21] The appellant was self-represented at trial. I concur with the arguments (set out in para. 15 herein) made on behalf of the appellant as to the considerations necessary for determination of compliance with the Regulation. [page602]

[22] A close review of the trial transcript leads me to conclude that the evidence elicited is not sufficient to allow a conclusion in respect of all of the enumerated points.

[23] I conclude that the learned justice of the peace erred in law. Section 120(1)(a)(ii) [of the Provincial Offences Act] permits the Provincial Offences Appeal Court to allow the appeal where it is of the opinion that the judgment of the trial court should be set aside on the grounds of a wrong decision on a question of law.

[24] I find that to be the case here.

[25] However, on the record before me, I am unable to conclude that the vehicle being operated by the appellant was part of the inventory offered for sale by the person (in this case a dealer), or that, pursuant to s. 13(4) of R.R.O. 1990, Reg. 628, it was not a dealer number plate used on a motor vehicle kept for private use.

[26] The appeal is granted, the judgment finding guilt is set aside and a new trial is ordered. The findings on this appeal are to be applied in respect of the requirements set out in s. 13(2) and 13(4) of R.R.O. 1990, Reg. 628.

Appeal allowed.

End of Document