Ontario Court of Justice

Provincial Offences Court

In the matter

BETWEEN:

Regina

— AND —

Ali Ahmed Mahamed

Before: Justice of the Peace Sheine Mankovsky

Heard on: March 21, 2012, April 15, 2012, April 26, 2012, June 13, 2013, July 15, 2013 and September 18, 2013

Reasons for Judgment released on: November 22, 2013

Counsel:

• Mr. A. Smith — counsel for the prosecution
• Mr. M. Hussein — agent for the defendant Ali Ahmed Mahamed

JUSTICE OF THE PEACE Sheine M. Mankovsky:

A. The Charges

[1] Mr. Ali Mahamed is charged with the following offences:

• Drive under licence of other jurisdiction while suspended in Ontario contrary to Section 36 of the Highway Traffic Act;
• Drive while under suspended licence contrary to Section 53 (1) of the Highway Traffic Act; and
• Improper number plate light contrary to Section 62 (19) of the Highway Traffic Act.

[2] Section 36 of the Highway Traffic Act states that:

A person whose driver's licence or privilege to drive a motor vehicle in Ontario has been suspended shall not drive a motor vehicle or street car in Ontario under a driver's licence or permit issued by any other jurisdiction during the suspension. R.S.O. 1990, c. H.8, s. 36.

[3] Section 53 (1) of the Highway Traffic Act states that:

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. R.S.O. 1990, c. H.8, s. 53 (1); 1997, c. 12, s. 7 (1).

[4] Section 62 (19) of the Highway Traffic Act states that:

The lamp on the rear of a motor vehicle or trailer shall be of at least three candela and shall be so placed that it will, at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, illuminate the numbers on the number plate, or, if provision is made on the number plate or on any attachment furnished or required by the Ministry for affixing the lamp, it shall be affixed in the position or space provided, and the lamp shall face to the rear and reflect on the number plate a white light only. R.S.O. 1990, c. H.8, s. 62 (19).

B. Category of Offences

[5] I am satisfied that the three offences are strict liability offences so that the prosecution is required to prove all the elements of each of the three offences beyond a reasonable doubt.

[6] A strict liability offence provides the defendant with the right to a due diligence defence, and shifts the burden to the defendant to prove, that, on a balance of probabilities, the defendant took all reasonable care to avoid committing the offences. In its decision in R. v. Sault St. Marie (City), [1978] 2 S.C.R. 1299, Dickson J., writing for the Court stated with respect to the definition of a strict liability offence as:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case. (R. v. Hickey (1976), 29 C.C.C. (2d) 23 rev'd, 30 C.C.C. (2d) 416).

C. Evidence for the Prosecution

[7] The first witness for the Prosecution was Officer Marc Pinizotto who testified that on Tuesday, August 10, 2010 he was employed by the City of Toronto as a uniformed officer and, while on general patrol in a marked police cruiser at about 12:57 a.m. he was travelling eastbound on Dixon Road just east of Martingrove. He observed a vehicle in the passing lane of Dixon Road travelling westbound, driving towards and then past him. As the vehicle passed him Officer Pinizotto noticed that there was no licence plate on the front of the car and there was no light over the licence plate at the rear of the vehicle. This caused him to be concerned that the vehicle might not be roadworthy.

[8] He made a U-turn, followed the vehicle as it made a left turn southbound onto Martingrove Road, activated his emergency equipment and pulled the vehicle over on Martingrove Road, just south of Dixon Road.

[9] Officer Pinizotto testified that he observed a licence plate on the rear of the motor vehicle, but that the light which was required to be over the rear licence plate was either not present or not functioning properly. The licence plate was not illuminated. By the light of his own vehicle's headlights he identified the vehicle as a Buick Century with an Alberta plate number TEB001.

[10] The driver provided a valid Alberta driver's licence as identification, showing an address in Edmonton, and a date of birth of December 25, 1959. Mr. Mahammed also provided the ownership registration for the vehicle as well as proof of insurance for the vehicle.

[11] Officer Pinizotto made comprehensive inquiries through his onboard equipment and received information that Mr. Mahamed, the driver, also had a driver's licence in Ontario, and that the Ontario driver's licence had been suspended in 1994.

[12] At that time he charged Mr. Mahamed with the three offences before the court, and personally served three summonses on Mr. Mahamed.

[13] At the conclusion of the witness' testimony Mr. Smith provided the Court with a document under the signature of the Registrar of Motor Vehicles and the seal of the Ministry of the Transportation. That document certified that the driver's licence of Ali Ahmed Mahamed, a male born on December 25, 1959, whose latest address was 1016 Ossington Avenue, in Toronto, had his driver's license suspended effective the 17th day of March, 1994, pursuant to a Court Order, under the Highway Traffic Act for default of payment of a fine. The suspension number was 4034105. The document further certifies that a notice of suspension, a copy of which was attached to the Ministry of Transportation document was forwarded by registered mail on the 28 day of February, 1994, to Ali Ahmed Mahamed at 58 Waterton Road, Apartment 601, in Weston, Ontario, which was at that time the last known address on the records of the Ministry for the individual and the suspension was still in effect on the 10th day of August, 2010.

[14] The prosecutor asked that the Ministry document be marked prosecution Exhibit one. The Court reviewed the document and accepted it as Exhibit one.

D. Second Witness for the Prosecution (in rebuttal to testimony by the defendant)

[15] On April 15, 2013 Officer Theriault attended the court as Mr. Smith had requested to provide rebuttal evidence with respect to Mr. Mahamed's testimony on March 21, 2012. She testified that she was employed by the Toronto Police Service as a police constable. Although her recollection was somewhat vague, she definitely recalled that she had been assigned to 33 Division night shift operating the enforcement car concerned.

[16] She testified, using her notes to refresh her memory, that at about 1:20 a.m. on April 25, 1994 she was travelling southbound on Victoria Park approaching Consumers Drive, north of Highway 401. Her attention was drawn to a vehicle that she thought looked like a Sundance, travelling northbound on Victoria Park because one of its headlights was burned out. The vehicle made an abrupt right turn at Meadowacres Drive without signalling. This was a suspicious action so she followed the vehicle eastbound. She thought the car might have been stolen as there had been a problem with the theft of Chrysler products in the area, and she grew more suspicious when the vehicle turned left on Farmcrest to double back to Victoria Park. As a result of these observations, Officer Theriault activated her emergency equipment and stopped the vehicle. She testified that the Ontario licence plate number was 097 KJS.

[17] Once stopped, she approached the driver of the 1989 Black four-door Plymouth Sundance who identified himself with an Ontario driver's licence that had a photograph on it. The name was Ali Ahmed Mahamed and his date of birth was December 25, 1959. The address on the licence was 58 Waterton Road, unit number 601 in Weston, Ontario. She also recorded the driver's licence number as M016001231591225. The witness testified that she was completely satisfied with identification provided by the driver, Mr. Ali Ahmed Mahamed.

[18] Upon further investigation Officer Theriault received and confirmed information that the driver, Mr. Ahmed Ali Mahamed's driver's licence was suspended with regard to unpaid fines and that a notice of suspension had not been served at that time. Officer Theriault provided the 1994 suspension of driver's licence number: 4034105.

[19] Additionally Officer Theriault gave the driver a Notice of Suspension. Mr. Smith, the prosecutor, gave the witness a copy of the Notice of Suspension of Driver's Licence she confirmed she had signed and personally served on the defendant on that day and time, namely April 25, 1994 at 1:25 a.m. She testified that the number of the 1994 notice of suspension was 0072643 and that she noted that the reason for the suspension was unpaid fines.

[20] The witness testified further that she seized the blue portion of the licence as was required procedure at that time and informed Mr. Mahamed what the suspension meant, that he was not to drive until he had cleared up his fines and that he was to leave his vehicle at the scene. The officer advised in testimony that she charged him with an unrelated offence but she didn't make a note of the specific offence.

[21] The prosecutor asked that the Notice of Suspension be marked prosecution's Exhibit #2. The Court reviewed the document and accepted it as Exhibit #2.

E. Evidence of the Defence

[22] Mr. Ahmed Ali Mahmed testified by solemn affirmation in his own defence. He stated that he had moved to Alberta in 1995 and visited Ontario once per year. He moved back to Ontario in 2010.

[23] He testified that he did not recall his licence being suspended March 17, 1994 for unpaid fines, nor did he recall getting any tickets just before that in 1994 or perhaps 1993.

[24] When he moved to Alberta he obtained an Alberta driver's licence.

[25] He testified that when Officer Pinizotto informed him that his driver's licence had been suspended, he responded that he lived in Alberta now, and had an Alberta driver's licence. And if his driver's licence was suspended in Ontario, Alberta wouldn't give him another driver's licence.

[26] Mr. Mahamad testified further that he went to the Ontario driver licence services office and arranged to obtain an Ontario driver's licence.

[27] Mr. Mahamad stated that when the officer mentioned he had outstanding fines, he came to this court, asked how much he owed, and paid the fines.

[28] He stated that he didn't receive any registered letter as indicated by the police officer to Apartment 601 at 58 Waterton Road. He had lived at that address but had moved from there in 1992.

[29] In response to Mr. Smith's cross-examination, Mr. Mahamad said he didn't remember being served with a personal notice of suspension on April 25, 1994 by a police officer nor did he remember that the officer had seized his Ontario driver's licence at that time.

[30] Mr. Mahamad replied: "In the name of Allah, I do not remember that". And he said: "I had my driver's licence. It was never taken away from me."

[31] Mr. Mahamad consistently denied that he knew his driver's licence had been suspended, that his licence had been seized. He maintained that if that had been the case, he would not have been issued a driver's licence in Alberta, nor would he have been issued an Ontario driver's licence upon his return to Ontario. And he added again, in the name of Allah, he was not sure, nor did he have any knowledge of his licence being seized.

[32] On asking for clarification, what the defendant meant when he replied to the Court "in the name of Allah" he replied with the assistance of the interpreter:

"When we saying something is really a hundred percent true, we always say in front of Allah or in the name of Allah."

[33] Mr. Mahamad consistently denied that he had received a personal notice of suspension on April 25, 1994 and that his Ontario driver's licence had been seized on that date in Ontario.

[34] On further questioning by Mr. Smith in cross-examination, Mr. Mahamad stated that it was his belief that when he provided his information to the Alberta government representative to whom he was making a request for a driver's licence, that person would have access to his information in Ontario.

[35] Mr. Mahamad acknowledged he had fines but said he wasn't sure to what offences they related. It appeared from his testimony that he had parking related fines, or fines related to other offences such as his plate or a suspension. What was clear in his testimony, was that Mr. Mahamad had fines that were paid in full at the time of his testimony in Court on Wednesday, March 21, 2012 and some of those fines may have been, but not necessarily, toward a fine for driving while under the suspension of March 17, 1994.

F. Analysis

[36] Officer Pinizzotto testified that he saw the rear plate of Mr. Mahamed's vehicle at a distance and observed it was not illuminated as required by law. When he stopped Mr. Mahamad he observed the rear plate closely and saw no light illuminating that plate as required.

[37] Secondly, Mr. Smith, for the prosecution provided documentary evidence by way of a letter under the signature of the Registrar of Motor Vehicles and the seal of the Ministry of Transportation that Mr. Mahamed had been suspended as of March 17, 1994 and his licence was under suspension on August 10, 2010, the day he was charged with the charge of driving while under suspension presently before the court.

[38] Officer Theriault, the second witness for the prosecution, testified as a rebuttal witness that she personally served a notice of suspension on Mr. Mahamed on April 25, 1994, took his licence and required him to leave his car at the scene. She examined and confirmed a copy of the notice of suspension she had issued and testified that it was indeed the notice.

[39] Mr. Mahamed, for his part, claimed no knowledge of any of this, although he did say he paid fines that may have included a fine for a suspension. He simply didn't remember. He said that he expected that in Alberta, the public servant with whom he had dealt would have access to Ontario records, where he maintained he held a valid Ontario driver's licence.

[40] Mr. Mahamed appears to be unreliable, and not given to accepting his responsibility to deal with matters before the court, to say the least. The history of the matter illustrates Mr. Mahamed's propensity for avoiding obligations.

[41] The first court appearance was September 21, 2010 where he did not appear.

[42] On February 4, 2011, the first ex parte trial date, a summons was issued including a Jenkins caution indicating that if he were convicted of the offences, the crown would be seeking a period of incarceration.

[43] Mr. Mahamed didn't appear at the next appearance set for April 19, 2012. There was no proof of service of the summons, so the manager of prosecutions, Ms. MacPherson, sent a letter to the defendant reiterating the Jenkins caution, and an ex parte trial date was set for September 26, 2012. The need for a Somali interpreter was identified.

[44] The matter was adjourned to a set date court on October 25, 2011 where Mr. Hussein appeared for Mr. Mahamed. On that date the matter was set down for trial on March 21, 2012 for charges laid on August 10, 2010.

[45] On March 21, 2012 Mr. Hussein, agent for the defendant sought an adjournment. He had lost contact with Mr. Mahamed. Mr. Mahamed had not responded to written or telephone communication from Mr. Hussein. Mr Hussein was concerned that in view of the Jenkins caution he needed to make sure Mr. Mahamed dealt with the issues regarding his driver's licence and the possibility that he would be incarcerated. On March 21, 2012 Mr. Mahamed arrived late, almost too late. However, the trial did begin on that date and Mr. Mahamed testified in his defence, with the assistance of a Somali interpreter.

[46] The matter was adjourned to January 10, 2013 in order for the prosecution's rebuttal witness to testify. Mr. Mahamed did not attend on that date, as the court learned because he had gone to Africa to deal with a family problem and was expected to return to Canada at the beginning of February. Additionally, as a result of an internal administrative problem, the prosecution witness did not attend either. The matter was adjourned on joint request to April 15, 2013 to accommodate the prosecution's rebuttal witness, and to give Mr. Mahamed yet another opportunity to participate in his defence.

[47] Mr. Mahamed did not attend on April 15, 2013 as his agent had expected him to do. Apparently he had left for Somalia to attend to a family emergency in December, 2012 and had not been heard from since. Mr. Hussein tried unsuccessfully to contact Mr. Mahamed. Although Mr. Hussein would have preferred to go off the record at that time because his client appeared not to be interested in participating in his defence, the Court acceded to Mr. Smith's request that the trial continue due to the stage of the proceedings. The prosecution's rebuttal witness testified.

[48] The matter was further adjourned to June 13, 2013 to give Mr. Hussein time to contact his client, or to be contacted by his client, and to give Mr. Mahamed the opportunity to provide input.

[49] On June 13, 2013, Mr. Hussein advised the Court that the defendant's wife had come to see him on June 7, 2013 in response to a letter from Mr. Hussein to Mr. Mahamed informing him that Mr. Mahamed was expected back at the end of June. Mr. Hussein said he directed her to have Mr. Mahamed contact him immediately upon his return. The Court agreed to a brief adjournment.

[50] The matter was adjourned to July 15 to hear closing arguments. Mr. Mahamed did not attend on July 15.

[51] The matter was adjourned to September 18, 2013 for judgment. However, due to the unavailability of transcripts, the matter was adjourned to today for judgment. Again, Mr. Mahamed did not attend.

[52] In his testimony Mr. Mahamed consistently responded that he couldn't remember, because he had so many unresolved traffic and parking matters that he couldn't keep track of them. It was his wife who, he said, had pushed him to pay outstanding fines.

[53] Mr. Mahamed also believed that it was not his responsibility to ensure he was driving with a valid licence in Ontario.

[54] Mr. Mahamed did not attend court as it appeared his agent had expected him to do, as I have detailed. He did not cooperate with his agent leaving Mr. Hussein at times quite embarrassed before the Court by his client's unreliability.

[55] I find that Mr. Mahamed's testimony was not credible. It is contradicted by both the prosecution witnesses. Consequently I am left with no reasonable doubt by the evidence of the defendant or by all the other evidence I do accept.

[56] I am left with no doubt as to the defendant's guilt. I accept the evidence submitted by the prosecution.

G. Finding

[57] I find that on the totality of the evidence the prosecution has proven all the elements of each of the three offences before the court beyond a reasonable doubt. There is no credible evidence whatsoever that the defendant acted with due diligence. Accordingly I find the defendant guilty of all three offences.

H. Submissions on Penalty

[58] I invite Mr. Prosecutor first, followed by Mr. Hussein, agent for the defendant, to make submissions on penalty.

S. Mankovsky Justice of the Peace Province of Ontario