Court File and Parties

Ontario Court of Justice

Date: 2015-07-07

Court File No.: Goderich 1460 999 14 0147 00

In the Matter of: An appeal under 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— AND —

Christopher Ward Appellant

Before: Justice Brophy

Heard on: 18 June 2015

Reasons for Judgment released on: 7 July 2015

Counsel:

• Laura Grant, for the prosecution
• Philip Cornish, for the defendant/appellant Christopher Ward

On appeal from: A conviction by Justice of the Peace S. Stewart on 7 April 2015 and from the sentence imposed on that same date.

BROPHY J.:

INTRODUCTION

[1] On 7 April 2015 Justice of the Peace Stewart found the appellant guilty of being the owner of a motor vehicle and permitting such motor vehicle to be operated on a highway with the vehicle not being insured under a contract of automobile insurance contrary to section 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended (herein the CAIA).

[2] Section 2(1) of the CAIA is as follows:

2. (1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance. 1994, c. 11, s. 383; 1996, c. 21, s. 50 (3).

BACKGROUND FACTS

[3] On 22 August 2014 Officer Randy Fitch of the Ontario Provincial Police made a traffic stop in Howick Township. The motor vehicle he stopped was a blue Pontiac Grand Prix bearing licence plate BVFS 731. That motor vehicle was being driven by Adam Linseman.

[4] Mr. Linseman was not able to produce insurance particulars for the motor vehicle. The officer was also advised by the operator that the motor vehicle belonged to someone else and that he had permission to drive it on a test basis in anticipation of purchasing the motor vehicle.

[5] Mr. Linseman in the presence of the officer called the person whom he asserted owned the motor vehicle, and although there is some uncertainty in the evidence as to whether the call connected or there was a text exchange, the officer was advised as to the name of an insurance broker and was given some other information with respect to insurance.

[6] Later the officer obtained a Certificate from the Ministry of Transportation with respect to the subject motor vehicle that stated that the owner was Christopher Joseph Ward. The Certificate stated that Christopher Joseph Ward of Wingham Ontario owned a blue Pontiac Grand Prix and that the plate on that motor vehicle was BVFS 731.

[7] When he testified Officer Fitch produced the Certificate and it was entered into evidence. The officer also testified that this was in fact the motor vehicle that he had stopped on 22 August 2014.

[8] At trial the officer also testified that he had made inquiries with the insurance broker about the insurance but was not provided with any information that confirmed that there was insurance on the motor vehicle. Further he has never received any documentation that the motor vehicle was covered by insurance.

[9] At trial Adam Linseman testified that he had permission from Mr. Ward to operate the motor vehicle on a trial basis. He said that the motor vehicle belonged to Mr. Ward and that Mr. Ward had given him authorization to drive the motor vehicle. This was a business relationship in that the plan was for the operator of a motor vehicle to buy this vehicle from Mr. Ward if it suited his purposes.

[10] After the dismissal of a non-suit application by the defence, the appellant testified. He said that he did own a motor vehicle similar to the one in question and that he did know Mr. Linseman and that there was some form of arrangement to have Mr. Linseman check out the motor vehicle to determine if he wanted to purchase it. He said that he did not see Mr. Linseman remove the motor vehicle from his property and did not know if he trailered or drove it away. He confirmed in cross-examination that he never reported the motor vehicle stolen and has never produced documentation stating that this motor vehicle was insured.

ISSUES / GROUNDS FOR APPEAL

[11] The grounds for appeal in the Notice of Appeal are:

(a) the Justice of the Peace erred in allowing hearsay evidence to be received,

(b) by denying the non-suit application, and

(c) by applying the wrong test on strict liability offences.

[12] In addition, in argument, the appellant asserted that the trial Justice of the Peace erred in finding that ownership of the motor vehicle had been proven.

STANDARD OF REVIEW

[13] The standard of review in section 116 appeals is usefully commented upon in Ontario (Ministry of Labour) v. EFCO Canada Co., 2012 ONSC 149, where the following appears:

28 The Provincial Offences Act, R.S.O. 1990, c. 33, s. 120(1) states:

On the hearing of an appeal, the court by order,

(a) may allow the appeal where it is of the opinion that,

(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law,

(iii) or on any ground, there was a miscarriage of Justice of the Peace.

29 The Crown submitted that I am not to interfere with the decision of the trial judge unless the findings are the product of a palpable and overriding error. In this regard, the Crown relied on the authority, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401.

30 This authority goes on to say, however, that the test is met when the trial judge's findings can be characterized as unreasonable or unsupported by the evidence. (Para. 56), the wording codified in s. 120 above.

31 I note the Ontario Court of Appeal decision in Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.), and at paragraph 296, I quote:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear.

At paragraph 297, the court states:

An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact.

32 R. v. Prince Metal Products Limited is a June 2011 endorsement of Justice of the Peace Hoffman of the Ontario Court of Justice of the Peace and involves an appeal under the OHSA. At paragraph 20 the learned judge states,

The standard of review on questions of law is correctness. The standard of review on findings of fact is palpable and overriding error.

[14] It is important to note as well that an appellate court does not retry the case but rather reviews the record with a view towards determining whether the trial justice of the peace made any errors of fact that are material or was wrong in law in a significant way that would impact upon the results.

DISCUSSION

Admission of Hearsay

[15] The hearsay question is in two parts. The first is the interaction between the officer and Mr. Linseman at the side of the road. Mr. Linseman provided information to the officer identifying Mr. Ward as the owner of the motor vehicle. That evidence was clearly hearsay and was admitted by the trial Justice of the Peace for the purposes of the narrative. I see no mischief in doing so. It informed the actions of the officer after the stop, and in any event was of no consequence because of the material received from the Ministry of Transportation in a certificate format.

[16] The second hearsay issue arises out of inquiries made by the officer with an insurance broker. This was a product of some modest effort on the part of the officer to track down the insurance information for the motor vehicle. It is harmless because the officer received no information related to insurance. That is to say there was a negative response and nothing in this case turns on that involvement with the insurance broker.

[17] In my reading of the reasons for the ruling in the non-suit application and in the judgment in the trial proper the trial Justice of the Peace did not rely upon the hearsay information. This ground fails.

Non-Suit Motion

[18] At the close of the Crown's case the defence made a nonsuit application, arguing that the prosecutor had failed to present evidence that Mr. Ward had provided permission for the operation by Mr. Linseman and that there was no insurance.

[19] The learned Justice of the Peace dismissed that application on the basis that there was sufficient evidence to allow the case to move forward and if that evidence was accepted a finding of guilt could ensue. The trial Justice of the Peace pointed to the fact that the operator of the motor vehicle said that that Mr. Ward had given him permission to use the vehicle for test driving purposes and that that there was no evidence or other information presented by Mr. Ward that the vehicle was insured. On the basis that this was a strict liability offence (see the discussion below with respect to strict liability offences) and that there was evidence upon which the actus reus might be proven, the Justice of the Peace dismissed in the nonsuit application.

[20] The test on a motion for non-suit is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". At this stage the judicial officer presiding over the trial does not weigh or consider the quality of the evidence — but rather he or she simply decides if there is "some" evidence upon which a jury "could" convict. See R. v. Kande, 2015 ONCJ 131, [2015] O.J. No. 1246 (Ont. C.J.), D.A. Harris J.

[21] I see no basis to interfere with the decision of the trial Justice of the Peace. Clearly there was some evidence establishing the necessary elements of the offence. This ground also fails.

Strict Liability Test

[22] It is unclear in the submissions made by the appellant as to where the trial Justice of the Peace erred in law with respect to the strict liability test.

[23] In strict liability offences the prosecution must prove beyond a reasonable doubt that the defendant committed the illegal acts. The defendant must then prove, on a balance of probabilities that he or she took reasonable care not to commit the illegal acts, or he or she made a reasonable mistake of fact which, if true, would have rendered the acts lawful. A mistake of fact must be reasonable. Normally the defendant must establish that he or she took all reasonable steps and made all reasonable inquiries to determine the correct information. In strict liability cases, the defendant must establish that the mistake of fact was not only an honest one, but there were reasonable grounds for it. See R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299.

[24] It is clear that the offence under section 2 of the CAIA is a strict liability offence. See The Law of Traffic Offences, 3rd edition, Hutchison, Rose & Downes, Carswell, 2009 Thompson, Reuters Canada Limited, pages 16-17 and 241-245.

[25] It is also useful to note an illustration of the strict liability rule with respect to the CAIA in R. v. Zachariou, [1999] O.J. No. 2488, wherein MacDonnell J. of the Ontario Court of Justice (as he then was) found that there was an important social objective fulfilled by ensuring that all motor vehicles on the highway were covered by a contract of insurance. Placing the burden of proof of the existence of insurance onto each individual driver serves that important social objective, was rationally connected to the objective, and infringed the subject's rights as little as possible.

[26] In this case the trial Justice of the Peace properly examined the evidence and determined that the actus reus had been proven and then looked to see if the appellant had either produced the insurance information or had established some reasonably diligent efforts on his part to ensure that the motor vehicle was insured. The Justice of the Peace found that no reasonable actions had been taken by the appellant and accordingly found that the case had been proven by the prosecutor. This is a text book application of the strict liability rules related to provincial offences. This ground of appeal also fails.

Ownership Issue

[27] The defence presented an appellate decision by the Ontario Court of Justice with reference to operating a motor vehicle without insurance where proof of ownership was the main issue. The case was R. v. Huxtable, 2012 ONCJ 611, [2012] O.J. No. 4583. However that case is distinguishable from the instant case.

[28] Huxtable dealt with circumstantial evidence and found that the trial Justice of the Peace erred in not recognizing that there was more than one inference that could be drawn from the facts presented in evidence. Further the question of ownership of the motor vehicle in Huxtable was in issue and the prosecution tried to prove ownership with hearsay statements as opposed to filing certified copies of Ministry records, thus not following the best evidence rule.

[29] In the instant case, however, the prosecutor did in fact file certified records from the Ministry of Transportation confirming ownership of the motor vehicle by the appellant, which when received in conjunction with the other properly tendered evidence, that is to say the observations of the investigating police officer, made it manifestly reasonable for the learned Justice of the Peace to find beyond a reasonable doubt that the appellant was the owner of the subject motor vehicle. This also puts paid to the argument advanced by the appellant that ownership had not been proven.

Miscellaneous

[30] Two further matters mentioned on the appeal need comment.

[31] In the evidence of Mr. Ward there was discussion about temporary permits and the ability to operate a motor vehicle for 10 days without a transfer and also questions related to whether there was some global plan that covered the subject motor vehicle, and on all of these points they are either irrelevant or have not been proven.

[32] There was also some brief reference to facts being corrected after the offence had occurred. But this was not a well-developed argument and is not relevant to this case in any event because no facts were ever corrected, that is to say no insurance was ever provided. In any event the acts of the defendant after the date of the incident are not to be considered by the court in assessing a due diligence or reasonable excuse defence. See Handling Provincial Offence Cases in Ontario 2015, Alan and Libman, section 7.2.10 After-The-Fact Compliance, page 210, Carswell, 2015 Thomson Reuters Canada Limited.

Overview

[33] In the trial decision the evidence of driving, ownership, and permission and lack of insurance was received and accepted by the trial Justice of the Peace. She took into account all of the admissible evidence, including that of Mr. Ward, and determined that taken as a whole the evidence established beyond a reasonable doubt that the actus reus had taken place, that is to say that the motor vehicle was operated on a highway, that it was owned by Mr. Ward, that Mr. Linseman was operating the motor vehicle with the permission of the appellant and that no insurance was produced with respect to the said motor vehicle. Those were available conclusions that could be reached by the trial Justice of the Peace. In my view the appreciation of the evidence by Justice of the Peace Stewart is completely justified, which is not to say that I would have necessarily reached the same conclusion. That is not my task here. The question is whether the Justice of the Peace appreciated the evidence and applied the law. In this case there was neither mistake in terms of understanding the facts, nor any error in law with reference to this being a strict liability offence or the application of the law with respect to such offences. Accordingly there is no basis upon which to interfere with the decision.

[34] The standard of review on questions of law is correctness. The standard of review on findings of fact is palpable and overriding error. Justice of the Peace Stewart was correct in law and made no findings of fact that was in error.

SENTENCE

[35] As a supplementary matter the defence also asked that the court should consider the question of penalty and exercise jurisdiction under section 59(2) of the Provincial Offences Act to reduce the minimum penalty. The section states that:

59 (2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.

R.S.O. 1990, c. P.33, s. 59.

[36] In this case the trial Justice of the Peace has already considered this question and reduced the fine from the statutory minimum of $5,000.00 to $3,500.00. This is an exercise of judicial discretion that was available to the learned Justice of the Peace. An appellate court is not to interfere with sentencing decisions unless they are manifestly unjust. The facts advanced by counsel at trial are essentially the same factors that are advanced before this court with respect to Mr. Ward's financial circumstances and have already been taken into account in the decision made by the Justice of the Peace. The result was appropriate. I see no basis to interfere with that decision.

CONCLUSION

[37] For the foregoing reasons the appeal both as to conviction and sentence is dismissed.

Released: 7 July 2015

Signed: "Justice Brophy"