R. v. Mohammad-Basir Azimi
Between
Regina and Mohammad-Basir Azimi
In the
Ontario Court of Justice Toronto, Ontario
Before: P. Kowarsky J.P.
Heard: May 9, 2013
Judgment: May 17, 2013
Provincial Prosecutor: Mr. A. Queijo
The Defendant: Represented himself, assisted by the Farsi Interpreter
REASONS FOR JUDGMENT
P. KOWARSKY J.P.
A. THE CHARGE
[1] The defendant is charged with –
Permit motor vehicle to be operated without insurance contrary to section 2(1)(b) of the Compulsory Automobile Insurance Act, which provides as follows:
Subject to the regulations, no owner or lessee of a motor vehicle shall cause or permit the motor vehicle to be operated on a highway unless the motor vehicle is insured under a contract of automobile insurance;
B. CHARACTERIZATION OF THE OFFENCE
[2] In R. v. Ikponmwosa, [2011] O.J. No. 1367 (O.C.J.) I followed the decision in R. v. Bedard, [2009] O.J. No. 4720 (O.C.J.) and treated this offence as a strict liability offence.
[3] The consequence of my decision to treat this offence as a strict liability offence, is that the onus is on the Prosecution to prove the actus reus of the offence beyond a reasonable doubt, while it is open to the defendant to exculpate himself by satisfying the court, on a balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care so as to avoid committing the offence. See: R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; R. v. Pontes, [1995] 3 S.C.R. 44.
C. THE EVIDENCE FOR THE PROSECUTION
[4] In summary, the Prosecution evidence is as follows:
O.P.P. Officer Marilyn Reynolds testified that on January 12, 2012 she was on duty, traveling on Highway 401 in Toronto. She was "running licence plates on the Ministry of Transportation Website," to which she had access on the computer in her police car.
She saw a grey Mazda 3 motor vehicle bearing Ontario Licence Plate # BLKL372, traveling in front of her.
After running its licence plate she stopped that car, and made a demand of the male driver for his Driver's Licence, proof of ownership and proof of insurance.
The driver identified himself with a valid Ontario Driver's Licence as Mohammad-Qasim Azimi, and the officer was satisfied with his identification.
The Ownership was in the name of his brother who is the defendant in this matter.
The officer was concerned about the validity of the insurance slip which the driver provided; she took a photograph of it, returned it to the driver, who, with the officer's permission, drove away.
A photocopy of that insurance slip was admitted into evidence as Exhibit #1.
Exhibit #1 is an Insurance slip from Pafco Insurance Company, Policy number 5 58 072797 in the name Mohammad-Basir Azimi of 101 Robertson Drive, Ajax, Ontario L1T 3Z6, in respect of a 2005 Mazda3 motor vehicle and a 2007 (Dodge) Caliber SXT.
The effective date is June 2, 2011 and the expiration date is March 8, 2012.
After contacting the Insurance Company, the officer went to the defendant's home at 1102-70 Clipper Road, Toronto. She asked the defendant for proof that his Mazda 3 motor vehicle was covered by insurance on the offence date of January 12, 2012.
He gave her an insurance slip which is identical to Exhibit #1 except that it is only in respect of the Mazda 3 and not the Dodge Caliber, and the effective date is March 8, 2011 as opposed to Exhibit #1 which reflects an effective date of June 2, 2011. This was accepted into evidence as Exhibit #2.
The officer seized that insurance slip, and served a Summons on the defendant charging him with the offence before the court.
[5] Mohammad-Qasim Azimi testified that he is the brother of the defendant, and he was driving the defendant's Mazda 3 vehicle at the time of the offence. There is nothing in his evidence that is in conflict with the evidence of Officer Reynolds in relation to the traffic stop concerned.
[6] Amanda Mussalin testified on behalf of Pafco Insurance Company by which she has been employed for about 7 years. She is the ombudsman, who acts as intermediary in conflicts between clients and the company. As such she has access to the records of the company which are kept in its ordinary course of business.
[7] Upon the request of Officer Reynolds, she searched the records of the company in relation to its involvement with the defendant, and testified as follows:
The defendant's Mazda 3 motor vehicle was covered under a policy of Insurance # 5 58 072797 effective from March 8, 2011 to March 8, 2012.
The defendant subsequently added a second motor vehicle to that policy, namely the 2007 Dodge Caliber. A new insurance slip was then provided to him, effective June 2, 2011 to March 12, 2012.
On November 28, 2011, the defendant made a claim against Pafco in relation to an accident which his other brother, Samim Azimi, had had while driving the defendant's Dodge Caliber.
That claim initiated an Underwriting Review with respect to the defendant. The result of the review was that Pafco decided that it was no longer in its interests to continue the insurance coverage for the defendant. Accordingly, the company sent a policy cancellation letter via registered mail to the defendant at the address which he had provided to them, and which was reflected on the initial Insurance slip, Exhibit #1.
The registered letter was sent to the defendant at 101 Robertson Drive in Ajax, and the receipt therefor was apparently signed by the defendant on December 20, 2011. The name of the signatory indicated on the receipt is M. Azimi. A copy of the receipt was entered into evidence as Exhibit #5.
The cancellation letter advised the defendant that Pafco was cancelling his insurance coverage with effect from January 5, 2012.
D. THE EVIDENCE FOR THE DEFENCE
[8] The defendant, Mr. Mohammad-Basir Azimi, acknowledged that he was the registered owner of the Mazda 3 vehicle which was being driven by his brother, Mohammad-Qasim on January 12, 2012.
[9] His ownership is confirmed by the certified copy of a Certificate dated March 9, 2012 under the signature of the Registrar of Motor vehicles and the seal of the Ministry of Transportation (Exhibit #4).
[10] It is common ground that the defendant's Mazda 3 vehicle was readily available for use by his brother, Mohammad-Qasim, whenever he wanted to drive that car, which he did from time to time, including on January 12, 2012 when he was stopped by Officer Reynolds. The Mazda 3 was generally parked at the home of their mother, with whom Mohammad-Qasim lived at the time, and the keys to that car were hanging on a hook just inside the front door of the home.
[11] There is no issue, therefore, that the defendant permitted his brother to drive the Mazda on the offence date of January 12, 2012.
[12] The defendant testified that after the Dodge Caliber was added to the insurance policy, Pafco gave him a new insurance slip, which included the Dodge, and set out a new effective date of June 2, 2011. Hence the discrepancy between Exhibits #1 and #2 with respect to the different effective dates.
[13] His evidence is that after the Dodge was removed from the policy following upon the claim which he made in respect of an accident involving that car, "Pafco called me and told me that the Dodge is off the policy but the Mazda was still insured."
[14] He told the court that he, his sister and her husband had been living in the Ajax home until some time in July 2011 when they all moved to the Toronto address on Clipper Road. Although he does not recall the exact date of the move, he does remember that the weather was warm at the time, suggesting that it was in Spring or Summer of 2011. I have no contradictory evidence, and accept it as credible.
[15] Although his name and a signature appear on the copy of the receipt for the registered letter of policy cancellation from Pafco, he denies that it is his signature, and states that he never received that cancellation letter because it was sent to the Ajax address after he had moved from that address to Toronto. The date on the receipt for the registered letter is December 20, 2011.
[16] The defendant testified that: "My understanding was that the Mazda was covered" under the Pafco insurance policy on January 12, 2012.
E. THE ACTUS REUS
[17] Was the Mazda 3 covered under a policy of insurance on January 12, 2012? The insurance company representative testified that the policy was cancelled effective January 5, 2012, and that a letter informing the defendant of the cancellation was sent to him by registered mail to his address in Ajax, which was the address which he had provided to the company when he obtained the insurance coverage for both of his vehicles. It appears to have been received and signed for by the defendant on December 20, 2011.
[18] I find that the defendant was the registered owner of the Mazda 3 on January 12, 2012, that he permitted his brother Mohammad-Qasim to drive that car on a highway in Toronto on that day, and that the insurance policy in respect thereof had been cancelled effective January 5, 2012, one week prior to the traffic stop.
[19] By reason of such findings, I am satisfied that the Prosecution has proven the actus reus of the offence beyond a reasonable doubt.
F. THE DUE DILIGENCE DEFENCE
[20] In Levis (City) v. Tetrault 2006 SCC 12 the Supreme Court of Canada noted that the approach adopted by the court in R. v. Sault Ste. Marie (supra) is that—
"the accused has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances."
[21] Moreover, in R. v. Strang 36 M.V.R. (2d) 87 the Nova Scotia Court of Appeal held that "the burden upon the accused to raise a reasonable doubt 'is not as great' as the burden of an accused in a strict liability offence to establish due diligence by a balance of probabilities."
G. HAS THE DEFENDANT MET HIS BURDEN?
[22] "Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt, and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability." See: R. v. Courtaulds Fibres Canada (1992), 76 C.C.C. (3d) 68 (Ont. Prov. Div.).
[23] I find that the Insurance Company notified the defendant by registered mail on 20 December, 2011 that the policy was to be cancelled effective January 5, 2012.
[24] I accept the testimony of the defendant that on December 20, 2011, he was no longer living at the Ajax address to which the notice of cancellation was sent.
[25] I have no evidence, other than an illegible signature on the copy of the delivery notice, Exhibit #5, that the defendant actually signed that receipt, which he denies. The evidence of the defendant is that he had every reason to believe that his policy of insurance with respect to the Mazda 3 vehicle was still in effect on January 12, 2012, when his brother was stopped by the police while driving that car.
[26] According to Officer Reynolds, the Ownership document which was presented to her during the vehicle stop reflected that the defendant was the registered owner of that vehicle, and his residential address was noted as 1102-70 Clipper Road, Toronto. This is corroborated by a certified copy of the Ministry of Transportation's VIN by Date search on March 9, 2012, entered into evidence as Exhibit #4.
[27] I find that, in all likelihood, the defendant did not notify the Insurance Company of his change of address when he moved from Ajax to Toronto several months prior to December 20, 2011 when the registered letter of cancellation was delivered to the Ajax address. I believe that he should have done so, and that he made a mistake by not doing so.
[28] This mistake resulted, in all probability, in his being unaware that the insurance police had been cancelled, which led to his being charged with permitting his brother to drive his car on January 12, 2012, seven days after the effective date of cancellation of the insurance policy by Pafco. The defendant never denied that he had permitted his brother to drive the car on January 12, 2012, which he had done on numerous previous occasions.
The issue for me to decide is whether this mistake of fact was reasonable or not.
H. DISPOSITION
[29] Adopting the required test, I am of the view, based on the totality of the evidence, that a reasonable person in circumstances similar to the ones in this case, may well have made such a mistake. Consequently, I find that the defendant made a mistake of fact, which had he not done so, would have rendered his act innocent. See R. v. Sault Ste. Marie and Levis (City) v. Tetrault (supra).
[30] For these reasons, I find that the defendant is not deserving of punishment in that he has established due diligence on a balance of probabilities. Accordingly, there will be a verdict of not guilty.
P. Kowarsky J.P.