CITATION: R. v. Bharath, 2016 ONCJ 382
IN THE MATTER OF
the Highway Traffic Act, R.S.O 1990, c. H.8
and
the Compulsory Automobile Insurance Act,
and
an application for a stay of proceedings under s. 24(1)
or exclusion of evidence under s. 24(2)
for an infringement of s. 7, 8, 9, and 15 of the Charter
Between
Her Majesty The Queen In Right Of Ontario
prosecutor
and
Rishi Ganesh BHARATH
defendant
Ontario Court of Justice
Brampton, Ontario
Quon J. P.
Reasons for Judgment
Trial held and Charter August 31 and December 11, 2015,
Application Argued: and March 21, 2016.
Judgment released: June 24, 2016.
Charges: (1) s. 2(1)(a) C.A.I.A. – “owner operate motor vehicle on highway without
insurance”
(2) s. 12(1)(e) H.T.A. – “use validation not furnished for vehicle by Ministry”
(3) s. 12(1)(a) H.T.A. – “alter validation”
(4) s. 7(1)(c)(i) H.T.A. – “drive motor vehicle, no validation on plate”
(5) s. 7(1)(a) H.T.A. – “drive motor vehicle, no currently validated permit”
Counsel:
Anna Drahovzal, student-at-law, prosecutor
Rishi Ganesh Bharath, self-represented
CASES CONSIDERED OR REFERRED TO:
Cases On Requirement Of Notice of Constitutional Question To Be Served On Attorneys-General Under s. 109 Of Courts of Justice Act:
R. v. Balavijith, [1998] O.J. No. 6496 (O.C.J.), per Young J.
R. v. DeCaro, [2000] O.J. No. 3166 (O.C.J.), per Lampkin J.
R. v. Dickson, [2004] O.J. No. 4710 (O.C.J.), per Andre J.
R. v. Mitchell, [2000] O.J. No. 735 (O.C.J.), per Reinhardt J.
R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (O.C.A.), per Brooke, Finlayson, and Doherty JJ.A.
R. v. Vellone, 2011 ONCA 785, [2011] O.J. No. 5708 (O.C.A.), per MacPherson, Simmons, and Blair JJ.A.
Cases on Notice Requirement For Charter Argument for Exclusion of Evidence under s. 24(2):
R. v. Loveman (1992), 1992 CanLII 2830 (ON CA), 71 C.C.C. (3d) 123 (O.C.A.), per Brooke, Finlayson, and Doherty JJ.A.
Cases On Whether The Highway Traffic Act Applies To Private Property:
Gill et al. v Elwood (1969), 1969 CanLII 215 (ON CA), 9 D.L.R. (3d) 681 (O.C.A.), per Aylesworth, Laskin, and Jessup JJ.A.
Lamsar v. Bajaj, [2008] O.J. No. 1758 (S.C.J.O.), per Herman J.
Nadeau v. Okanagan Urban Youth & Cultural Assn., [2013] B.C.J. No. 63 (B.C.S.C.), per Powers J.
Parkin v. Peel (Regional Municipality) Police Service, [2012] O.J. No. 3170 (S.C.J.O. (Small Claims Ct.)), Martel Dep. J.
R. v. Dillon, [2006] O.J. No. 1366 (S.C.J.O.), per Molloy J.
R. v. Boughen, [2002] O.J. No. 4060 (O.C.A.), per Finlayson, Moldaver, and Feldman JJ.A.
R. v. Douglas, 1997 CanLII 16238 (ON SC), [1997] O.J. No. 3931 (Ont. Ct. (Prov. Div.)), per Renaud J.
R. v. Elliott, [2016] O.J. No. 310 (O.C.J.), per Knazan J.
R. v. Hajivasilis, 2013 ONCA 27, [2013] O.J. No. 253 (O.C.A.), per O'Connor A.C.J.O., Doherty, Sharpe, Epstein JJ.A. and Cavarzan J. (ad hoc), rev’g R. v. Hajivasilis, [2012] O.J. No. 859 (O.C.J.), per Mocha J. and rev’g R. v. Hajivasilis, 2009 ONCJ 310, [2009] O.J. No. 2731 (O.C.J.), per Cremisio J.P.
R. v. Koma, [2015] S.J. No. 420 (Sask. C.A.).
R. v. Lux, [2012] S.J. No. 796 (Sask. C.A.).
R. v. Mansour, 1979 CanLII 46 (SCC), [1979] 2 S.C.R. 916, S.C.J. No. 77 (S.C.C.).
R. v. MacGregor, [2015] O.J. No. 6441 (O.C.J.), per Stribopoulos J.
Memorial Gardens Ontario Ltd. v. Ontario, 1992 CanLII 7673 (ON CA), [1992] O.J. No. 98 (O.C.A.), per Brooke, Tarnopolsky, and Doherty JJ.A.
R. v. Rizvi, [2014] O.J. No. 3985 (O.C.J.), per Quon J.P.
R. v. Sergalis, [2009] O.J. No. 4823 (S.C.J.O.), per Lauwers J.
Shah v. Becamon, 2009 ONCA 113, [2009] 94 O.R. (3d) 297, [2009] O.J. No. 478 (O.C.A.), per Laskin, MacPherson, and Armstrong JJ.A.
Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Ct. (Gen. Div.)), per Campbell J.
Cases On Whether Police Can Randomly Check Licence Plates Without Suspicion Of An Offence Being Committed:
R. v. Devloo, [2015] A.J. No. 624 (A.Q.B.).
R. v. Lundgren and Seeber, [2004] B.C.J. No. 1498 (B.C.S.C.), per Meiklem J.
R. v. McGill, [2013] O.J. No. 4182 (S.C.J.O.), per Conlan J.
R. v. Morris, [2011] O.J. No. 3994 (S.C.J.O.), per Harvison Young J.
R. v. Siemens, [2011] S.J. No. 406 (Sask. Prov. Ct.), per Labach J.
Cases On The Constitutionality Of The Police Conducting Random Stops Of Motor Vehicles:
R. v. Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825 (O.C.A.), per Sharpe, Simmons, LaForme JJ.A.
R. v. Clayton and Farmer, 2007 SCC 32, [2007] S.C.J. No. 32 (S.C.C.).
R. v. Dedman, 1985 CanLII 41 (SCC), [1985] S.C.J. No. 45 (S.C.C.).
R v. Dixon, 2015 ONSC 4329, [2015] O.J. No. 3685 (S.C.J.O.), per Belch J.
R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] S.C.J. No. 30 (S.C.C.).
R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] S.C.J. No. 53 (S.C.C.).
R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.J. No. 100 (S.C.C.).
R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 (S.C.C.).
R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 47 C.R.R. 210, 105 N.R. 81, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1, 37 O.A.C. 161 (S.C.C.).
R. v. Waterfield, [1963] 3 All E.R. 649, 48 Cr. App. Rep. 42, 128 J.P. 48, [1964] 1 Q.B. 164, 107 Sol. Jo. 833, [1963] 3 W.L.R. 946 (C.C.A.).
R. v. Wilson, 1990 CanLII 109 (SCC), [1990] S.C.J. No. 54 (S.C.C.).
Cases On The Common Law Ancillary Police Power That Authorizes the Police To Conduct Random Stops Of Motor Vehicles On Parking Lots on Private Property In Ontario:
R. v. Dillon, [2006] O.J. No. 1366 (S.C.J.O.), per Molloy J.
R. v. McClelland, [2012] O.J. No. 6022 (S.C.J.O.), per Tulloch J.
R. v. Tresham, 1998 CanLII 14756 (ON SC), [1998] O.J. No. 1744 (Ont. Ct. (Gen. Div.)), per Boyko J.
R. v. Vander Griendt, [2015] O.J. No. 5675 (S.C.J.O.), per Dawson J.; aff’g R. v. Vandergriendt, [2014] O.J. No. 2943 (O.C.J.), per Duncan J.
Cases On Remedies For Unreasonable Search and Seizure After Traffic Stop:
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.).
R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24 (S.C.C.).
R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (O.C.A.), per Krever, McKinlay, and Doherty JJ.A.
Cases on Racial Profiling:
Brown v. Durham Regional Police Force, 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274 (O.C.A.), per Doherty, Weiler, and Goudge JJ.A.
Johnson v. Halifax (Regional Municipality) Police Service, [2003] N.S.H.R.B.I.D. No. 2 (Nova Scotia Human Rights Board of Inquiry), per P. Girard, Chair
Nassiah v. The Regional Municipality of Peel Services Board and Richard Elkington, 2007 HRTO 14, [2007] O.H.R.T.D. No. 14 (Ont. Human Rights Tribunal), per Member K. Joachim
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 SCR 789 (S,C.C.).
R. v. Brown, 2003 CanLII 52142 (ON CA), [2003] O.J. No. 1251 (O.C.A.), per Morden, Laskin, and Feldman JJ.A.
Peart v. Peel Region Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457 (O.C.A.), per Doherty, Goudge, and Rouleau JJ.A.
R. v. Griffiths (2003), 2003 CanLII 90014 (ON CJ), 11 C.R. (6th) 136, 106 C.R.R. (2d) 139 (O.C.J.), per Bovard J.
R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24 (S.C.C.).
R. v. Richards, 1999 CanLII 1602 (ON CA), [1999] O.J. No. 1420 (O.C.A.), per Labrosse, Rosenberg, and Feldman JJ.A.
R. v. Simpson 1993 CanLII 3379 (ON CA), 1993 79 C.C.C. (3d) 482 (O.C.A.), per Krever, McKinlay, and Doherty JJ.A.
R. v. Smith, 2004 CanLII 46666 (ON SC), [2004] O.J. No. 4979 (S.C.J.O), per Dawson J.
R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 47 C.R.R. 210, 105 N.R. 81, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1, 37 O.A.C. 161 (S.C.C.).
Cases On Whether Defendant Has Any Burden To Prove His Motor Vehicle Has Insurance:
R. v. Zachariou, [1999] O.J. No. 2488 (O.C.J.), per MacDonnell J.
R. v. Stone, [1984] O.J. No. 912 (Ont. Co. Ct.), per Murdoch J.
R. v. Horvath, [1989] O.J. No. 1875 (Ont. Prov. Ct.), per Harris J.
Cases On Police Officer Conducting Search While Trespassing On Private Property:
R. v. Evans, 1996 CanLII 248 (SCC), [1996] S.C.J. No. 1 (S.C.C.).
R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802 (S.C.C.).
R. v. Lotozky, 2006 CanLII 21041 (ON CA), 81 O.R. (3d) 335, (O.C.A.), per Weiler, Rosenberg, and MacPherson JJ.A.
R. v. N.N.M., 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 (S.C.J.O.), per Hill J.
Cases On Whether Police Can Follow Motorist Onto Private Property To Continue Investigation:
R. v. Boughen, [2002] O.J. No. 4060 (O.C.A.), per Finlayson, Moldaver, and Feldman JJ.A.
R. v. Clarke, [2003] O.J. No. 6160 (O.C.J.), Omatsu J.
R. v. McGregor, [2015] O.J. No. 6441 (O.C.J.), per Stribopoulos J.
Cases On Assessing Credibility Of Witness Testimony:
Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).
R. v. Comer, [2006] N.S.J. No. 291 (N.S.S.C.).
R. v. Jaquot, [2010] N.S.J. No. 108 (N.S.P.C.), per Tax J.
Cases On Interpreting Public Welfare Legislation:
Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), [2002] O.J. No. 283 (O.C.A.), per Weiler, Sharpe and Simmons JJ.A.
Cases On The Difference Between Reasonable Suspicion and Reasonable and Probable Grounds:
R. v. Le, 2014 ONSC 2033, [2014] O.J. No. 1515 (S.C.J.O.), per Campbell J.
Statutes, Regulations and Rules Cited:
Automobile Insurance Reporting Information Regulation (Compulsory Automobile Insurance Act), O. Reg. 239/10, s. 2(2).
Canadian Charter of Rights and Freedoms, 1982, ss. 7, 8, 9, 11(b), 15, 24, 24(1), and 24(2).
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 109 and 109(1).
Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, ss. 2(1), 2(1)(a), 3(1), 13(1), 13(3), and 13(7).
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 5.2, 5.3, 7(1), 7(1)(a), 7(1)(c)(i), 7(5), 7(7), 12(1)(a), 12(1)(e), 12(2), 12(3), 13(2), 14(1), 14(1)(b), 31, 32(1), 33, 33(1), 48(1), and 216(1).
Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 1.
Provincial Offences Act, R.S.O. 1990, c. P.33, s. 34.
Rules in Provincial Offences Proceedings under Courts of Justice Act, R.S.O. 1990, c. C.43, R.R.O. 1990, Reg. 200, rule 7(7).
Safer Roads for a Safer Ontario Act, 2007, S.O. 2007, c. 13, s. 2.
Trespass to Property Act, R.S.O. 1990, c. T.21, ss. 2(1), 3(1), 3(2), 5(1), 5(1)(b), and 11.
Vehicle Permits Regulation (Highway Traffic Act), R.R.O. 1990, O. Reg. 628, ss. 3.1, 9(1)(b), 9(3), and 17(1)(16).
Reference Material Considered or Cited:
Choudhry, Sujit and Roach, Kent, "Racial and Ethnic Profiling: Statutory Discretion, Constitutional Remedies, and Democratic Accountability" (2003) 41 Osgoode Hall L.J. 1.
Paciocco, D.M. and L. Stuesser, L., The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011).
Quigley, Tim, "Brief Investigatory Detentions: A Critique of R. v. Simpson" (2004) 41 Alta. L. Rev. 935.
Roach, Kent, "Making Progress on Understanding and Remedying Racial Profiling" (2004) 41 Alta. L. Rev. 895.
Tanovich, David M., “E-Racing Racial Profiling”, (2004) vol. 41, Alta. L. Rev 905.
Tanovich, David M., “Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention”, vol. 40, 2 Osgoode Hall L. J. 145.
Exhibits Entered:
Exhibit #1 - the faux validation tag or sticker that had been removed the from rear license plate that had been seized by Cst. Wood from the motor vehicle that the defendant had been driving on May 17, 2014, which had also been attached to a page out of Cst. Wood’s notebook. The letters and numbers ONT DEC 0554883D that make up the validation sticker are black lettering on white background and is from a photocopy. This part of the faux validation tag had also been covered with clear tape. The vertical numbers 1 and 4 have been also photocopied and have been taped on by clear tape onto the photocopy of the ONT DEC 0554883D portion of the validation tag. In addition, the number 4 is misaligned in respect to the other letters or digits after it was taped onto the main part of the photocopied validation tag.
Exhibit #2 - photocopy made by Cst. Wood of rear Ontario license plate numbered BNCH540 that had been seized and removed from defendant’s motor vehicle on May 17, 2014, showing the false “ONT DEC 14 0554883D” validation sticker before the false validation sticker was removed by Cst. Wood and attached to Cst. Wood’s original notes of the event. The edges of the clear tape used to attached the vertical numbers 1 and 4 can be seen on the photocopy (1 page).
Exhibit #3 - certified Ministry of Transportation document dated 2014/07/11, indicating the registered owner of a silver-coloured 2003 Nissan motor vehicle, being an Altima model type, and bearing V.I.N. “1N4AL11D23C115114”, with attached license plate number “BNCH540”, is registered to “Rishi G. Bharath” with an address of #[removed for privacy] – 7115 Rexwood Road, Mississauga, Ontario. The document also indicates that the plate had been registered on February 12, 2002, and the validation tag no. 0554883 had been issued also on February 12, 2002, and last expired on February 13, 2011 (2 pages).
Exhibit #4A - photograph taken by the defendant on May 19, 2014, using a Sony digital camera that shows an aerial-view map or plan of the area the townhouse complexes and surrounding area which is displayed on the masonry wall that is located at the southside of the roadway at the entrance to the property of the townhouse complexes comprising of 128 units or townhouses numbered 1 to 128 that are located at 7115 Rexwood Road, Mississauga, Ontario. The map contains the wording 7115 Rexwood Road, “you are here”, “Sonata Park Home Corp.”, and “Units 1-128”. It also shows the private road that winds through the townhouse complexes property. On the photograph of the map the defendant also indicated on the north and south sides of the roadway running north of the townhouses with blue ink and just west of the 5 off-road parking spaces the location of the two masonry walls where the defendant said the walls on which the map and other signage were mounted had been located at the entrance to the property of the townhouse complexes. In addition, the defendant had marked a red ink “X” on the photograph as the location of where he said Cst. Wood’s police cruiser had been parked before Cst. Wood had engaged his emergency roof lights on the cruiser and then stopped the defendant. The defendant also marked a blue ink “X1” on the photograph to show the location of the defendant’s car on the roadway where the defendant said he had stopped his motor vehicle for Cst. Wood and drew a blue arrow running east on the roadway to show the direction he had been travelling before he had stopped his vehicle for Cst. Wood. In addition, the defendant also marked a blue ink “X2” on the photograph to show the location of where the defendant’s car had been originally parked in one of the 5 off-road parking spaces on the townhouse complexes property before the defendant had moved it to the location where he had been stopped by Cst. Wood at “X1”. The “X2” was placed by the defendant to the west of the red “X” indicating where Cst. Wood had been parked. All of the markings made by the defendant were located within the property of the townhouse complexes. In addition, the defendant had circled the unit in the townhouse complexes of the aerial plan where he said he resides and also drew a blue arrow to show the direction in which his townhouse faces one of the three sideroads within the townhouse complexes property. The defendant’s townhouse is located south of the “X1” location where he had stopped his car for Cst. Wood.
Exhibit #4B - photograph taken by the defendant on May 19, 2014, using a Sony digital camera that shows the aerial-view map or plan of the area of the townhouse complexes and surrounding area which is displayed on the masonry wall that is located at the southside of the roadway at the entrance to the property of the townhouse complexes located at 7115 Rexwood Road, Mississauga, Ontario. The photograph also shows separate signage beside the map on the masonry wall that indicates a “Maximum Speed 10 km/h”, “Private Road For Peel Condominium No. 631 No Thru Traffic”, and “Private Property No Trespassing”.
Exhibit #4C - photograph taken with viewpoint facing east on the roadway was taken by the defendant on May 19, 2014, using a Sony digital camera that shows the site of the masonry wall located on the southside of the roadway at the entrance to the property of 7115 Rexwood Road, Mississauga, Ontario, and the separate signage beside the map on the masonry wall that indicates a “Maximum Speed 10 km/h”, “Private Road For Peel Condominium No. 631 No Thru Traffic”, and “Private Property No Trespassing”. The defendant also marked on the photograph a blue ink “X” on the rear of the red coloured motor vehicle parked in one of the 5 off-road parking spaces to indicate the location of where the defendant says Cst. Wood’s police cruiser had been parked before Cst. Wood had stopped the defendant. The defendant also drew a smaller blue “x” in the parking space west of the larger “blue “X” to show where the defendant’s car had been parked in one of the 5 off-road parking spaces east of the masonry wall. The parking spaces are clearly set apart from the roadway by a curb at the rear of the parking spaces and yellow lines, which designate the parking spaces.
Exhibit #4D - photograph taken with viewpoint facing west on the roadway was taken by the defendant on May 19, 2014, using a Sony digital camera that shows the 5 off-road parking spaces by the townhouses of the private property located at 7115 Rexwood Road, Mississauga, Ontario. The defendant also marked the photograph with a blue “X” in one of the parking spaces to indicate the location of where the defendant said Cst. Wood’s police cruiser had been parked before Cst. Wood had stopped the defendant and a blue “asterisk” as the location of where the defendant had been stopped on the roadway by Cst Wood. The defendant had also testified that Cst. Wood’s cruiser had been parked where the red or silver-coloured motor vehicles in the photograph are parked in one of the 5 off-road parking spaces beside the private road. The private road does not show any yellow lines painted on the roadway to separate opposing lanes of traffic east of the yellow speed bump, but are visible west of the yellow speed bump. The parking spaces are clearly set apart from the roadway by a curb at the rear of the parking spaces and by yellow lines, which designate the parking spaces. There is also a sidewalk beside the 5 off-road parking spaces.
Exhibit #4E - photograph taken with viewpoint facing east on the roadway was taken by the defendant on May 19, 2014, using a Sony digital camera that shows a “Dead End” sign on a pole just before and west of the two masonry walls located at the entrance to the property of the townhouse complexes located at 7115 Rexwood Road, Mississauga, Ontario. Also visible is a yellow line painted on the roadway that creates lanes of opposing traffic east of the dead end sign and continues east of a yellow speed bump on the road that is east of the “Dead End” sign.
Exhibit #4F - photograph taken with viewpoint facing southwest on the roadway by the defendant on May 19, 2014, using a Sony digital camera that shows yellow-coloured speed bumps located on the roadway on the property of the townhouse complexes located at 7115 Rexwood Road, Mississauga, Ontario. The defendant also marked the photograph with an blue “X” on top of the silver and red-coloured cars in the photograph which are located in one of the 5 off-road parking spaces to indicate the location of where the defendant said Cst. Wood’s police cruiser had been parked before Cst. Wood had engaged the cruiser’s emergency lights and then stopped the defendant. The photograph also shows a dark coloured van parked in one of the driveways of one of the townhouses.
Exhibit #4G - photograph taken with viewpoint facing east on the roadway was taken by the defendant on May 19, 2014, using a Sony digital camera that shows the front entrance to the property of the townhouse complexes located at 7115 Rexwood Road, Mississauga, Ontario. The photograph also shows signage on the masonry wall located on the northside of the roadway at the entrance to the townhouse complexes. The sign indicates “No Trespassing No Dumping Violators Will Be Prosecuted”. The defendant also marked the photograph with a blue “X” on top of the silver and red-coloured cars in the photograph which are located in one of the 5 off-road parking spaces to indicate the location of where the defendant says Cst. Wood’s police cruiser had been parked before Cst. Wood had engaged the cruiser’s emergency lights and then stopped the defendant. Furthermore, there are yellow lines painted on the road surface east of the masonry wall that separates the roadway into lanes of opposing traffic.
Exhibit #4H - photograph taken with viewpoint facing east on the roadway was taken by the defendant on May 19, 2014, using a Sony digital camera that shows the property of the townhouse complexes located at 7115 Rexwood Road, Mississauga, Ontario. The defendant also marked the photograph with a blue “X” on top of the red-coloured car in the photograph, which is located in one of 5 the off-road parking spaces to indicate the location of where the defendant says Cst. Wood’s police cruiser had been parked before Cst. Wood had engaged the cruiser’s emergency lights and then stopped the defendant. Furthermore, there are yellow lines painted on the road surface that separates the roadway into lanes for opposing traffic before and west of a yellow coloured speed bump on the roadway. The 5 off-road parking spaces are clearly set apart from the roadway by a curb at the rear of the parking spaces and yellow lines, which designate the parking spaces. There is also a sidewalk beside the 5 off-road parking spaces.
Exhibit #4I - this photograph shows the same view and content as the photograph entered and marked as Exhibit #4A.
Exhibit #4J - photograph taken with viewpoint facing southwest on the roadway by the defendant on May 19, 2014, using a Sony digital camera that shows a yellow-coloured speed bump located on the roadway on the property of the townhouse complexes located at 7115 Rexwood Road, Mississauga, Ontario. There are no yellow lines visible on the private road that separates the roadway into lanes for opposing traffic east of the yellow speed bump on the road, but there are yellow lines on the road that are visible west of the yellow speed bump that separates the roadway into lanes of opposing traffic. This photograph also shows a dark-coloured van parked in one of the driveways of one of the townhouses.
Exhibit #4K - photograph taken by the defendant on May 19, 2014, using a Sony digital camera that shows the separate signage on the masonry wall that indicates a “Maximum Speed 10 km/h”, “Private Road For Peel Condominium No. 631 No Thru Traffic”, and “Private Property No Trespassing”. This photograph is a close up of the signage in the photograph already entered and marked as Exhibit #4B.
Exhibit #5 - copy of a letter from Zoran Properties Inc. dated June 19, 2014, and signed by Mara Milenkovic, Chief Operations Officer, which was addressed to the unit owner “Sharada Bharath” in respect to the property at 7115 Rexwood Road in Mississauga (Peel Condominium Corporation No. 631) and states that the letter confirms that Zoran Properties Inc. is the property management firm for 7115 Rexwood Road, and as such, are responsible for the management of property maintenance and for facilitating the day to day business activities of the corporation (one page).
Exhibit #6 - original sketch made by the defendant during his testimony showing the layout and orientation of Netherbrae Road and Rexwood Road in the area of the townhouse complexes (Peel Condominium Corporation No. 631) located at the municipal address of 7115 Rexwood Road, Mississauga and how Rexwood Road goes into the property of the townhouse complexes. In addition, the defendant drew the location where the 2 masonry walls at the entrance to the townhouse complexes property are located to the northside and southside of the roadway and where the 3 sideroads are within the townhouse complexes property. On the sketch, the defendant also marked a red ink “X” and a red arrow to indicate the location of where the defendant said Cst. Wood had been parked in one of the 5 off-road parking spaces on the property of the townhouse complexes and the direction the police cruiser had been facing at the south east corner of those 5 off-road parking spaces before the defendant had been stopped by Cst. Wood. The defendant also drew a blue “X1” to show the location of where the defendant’s car had been stopped for Cst. Wood, which would be just before the second side road. In addition, the defendant marked a blue “X2” to indicate the location of where he said the defendant’s car had been originally parked in one of the off-road parking spaces in the townhouse complexes before he moved it to the location where he had been stopped by Cst. Wood at “X1”. The defendant had placed the blue “X2” in the southwest corner of the 5 off-road parking spaces, which would be west of the red “X” that depicts where Cst. Wood had been parked. All three markings made by the defendant were placed within the property of the townhouse complexes. The defendant also drew Netherbrae Road as a north-south road that only runs north of Rexwood Road that he had drawn as an east-west road, which he had placed on the northside of the town house complexes (one page).
Exhibit #7 - a copy of the Prosecution Sheet form that was completed by Cst. Wood and which had been disclosed to the defendant. In the box with the heading, “Apparent Race Description”, the term “South Asian” has been typed in (one page).
Table of Contents
Page No.
INTRODUCTION 1
THE CHARGES 4
BACKGROUND 5
(a) Summary of the proceedings 8
(b) Position of the Parties 10
(c) Why did the defendant believe Cst. Wood had racially profiled him? 12
(d) Who is the owner of the silver-coloured Nissan Altima motor vehicle with licence plate number BNCH540 that was being driven by the defendant? 14
(e) What were Cst. Wood’s duties on May 17, 2014? 14
(f) The particular area in Mississauga where the event of May 17, 2014, between Cst. Wood and the defendant had supposedly occurred. 15
(g) Description of the roadway known as Rexwood Road where Cst. Wood had observed the defendant supposedly driving the Nissan Altima motor vehicle. 16
(h) The townhouse complexes located at 7115 Rexwood Road, Mississauga is private property. 17
(i) How familiar had Cst. Wood been with the area and roadways surrounding 7115 Rexwood Road in Mississauga? 18
(j) Signage at the entrance to the townhouse complexes located at 7115 Rexwood Road indicating that the property is “private property” with “no trespassing” and that “violators will be prosecuted” and that the roadway connected to Rexwood Road is a “private road for Peel Condominium No. 631” with “no thru traffic” and with a “maximum speed of 10 km/h”. 18
(k) The place on the private road where the defendant said he supposedly stopped his motor vehicle after being signaled to do so by Cst. Wood. 19
(l) There are 5 off-road parking spaces located just east of the entrance of the property of the townhouse complexes located at 7115 Rexwood Road. 20
(m) The location of the off-road parking space on the private property where the defendant said Cst. Wood had supposedly been parked before Cst. Wood had signaled the defendant to stop. 20
(n) The location of the off-road parking space on the private property where the defendant said he had supposedly parked his Nissan motor vehicle a day and a half before he had been stopped by Cst. Wood. 21
(o) The faux “DEC 14” validation tag taped onto the rear licence plate of the defendant’s motor vehicle. 22
(p) Who had placed the fraudulent validation tag on the rear licence plate of the defendant’s Nissan Altima motor vehicle? 23
(q) Why had the defendant’s motor vehicle supposedly been parked in one of the 5 off-road parking spaces by the entrance to the private property and not parked in his garage or on the driveway of his townhouse on May 17, 2014? 25
(r) When did the defendant say he had supposedly moved his vehicle out of his garage and parked it on one of the 5 the off-road parking spaces by the entrance to the private property? 26
(s) What had the defendant been doing just before he got into his motor vehicle supposedly parked in one of the 5 off-road parking spaces and just before he had been stopped by Cst. Wood at 8:56 p.m. on May 17, 2014? 26
(t) What direction had the defendant been walking when he supposedly walked to his motor vehicle parked at one of the 5 off-road parking spaces at 8:56 p.m. on May 17, 2014, to move his vehicle back into his garage? 26
(u) Cst. Wood does not recall whether there are yellow-coloured speed bumps located on the private road. 27
(v) Why did Cst. Wood not have the defendant’s motor vehicle impounded or towed to the defendant’s driveway? 27
(w) Defendant’s testimony that conflicts with Cst. Wood’s testimony. 28
- ANALYSIS AND DECISION 30
(A) WERE THE DEFENDANT’S CHARTER RIGHTS VIOLATED? 31
(1) Has The Defendant Complied With Giving Notice Of The Charter Application To The Attorney-Generals Of Canada and Ontario Under s. 109 Of The Courts Of Justice Act? 33
(2) Was The Defendant’s Right To Be Free From Arbitrary Detention Under s. 9 And The Defendant’s Right To Be Secure From Unreasonable Search And Seizure Under s. 8 Infringed When Stopped And Investigated By Cst. Wood? 36
(a) Can a police officer randomly conduct a licence plate inquiry of a motor vehicle when the officer does not have any reason to suspect that the driver of that vehicle has committed any offence? 37
(i) Driving a motor vehicle in Ontario is a regulated and licenced activity. 38
(ii) Owners of motor vehicles are required to obtain a vehicle permit, validation tag, and a licence plate for the vehicle from the Ministry of Transportation before it can be driven on an Ontario highway. 40
(iii) Owners of motor vehicles are required to provide certain information to the Ministry of Transportation before a vehicle permit, validation tag, or a licence plate for a motor vehicle will be issued or renewed. 41
(iv) Owners of motor vehicles are required to provide accurate information to the Ministry of Transportation before a vehicle permit, a licence plate, or validation tag will be issued or renewed. 42
(v) Licence plates attached to a motor vehicle must be clearly visible for all to see. 43
(vi) Licence plates, vehicle permits, and validation tags issued by the Ministry of Transportation are the property of the Crown. 44
(vii) A current validation tag must be affixed at the designated spot on the rear licence plate. 45
(viii) A motor vehicle must be properly insured by its owner before it can be driven on an Ontario highway. 46
(ix) The nature of the information that the Ministry of Transportation would make available to the police on a licence plate inquiry. 49
(x) There is no reasonable expectation of privacy in the information on the licence plate itself or in respect to the information connected to the licence plate that is held by the Ministry of Transportation. 50
(xi) Does the common law or the H.T.A. authorize Cst. Wood to conduct a plate inquiry of the licence plate on the defendant’s motor vehicle being operated on a highway? 55
(a) The police do not need reasonable grounds to conduct investigations as long as the police conduct does not interfere with individual rights. 56
(xii) If Cst. Wood had conducted the licence plate inquiry of the defendant’s motor vehicle while it was only being operated on private property, would doing so on private property infringe s. 8 of the Charter? 64
(3) Can A Police Officer Arbitrarily And Randomly Stop And Investigate The Driver Of Motor Vehicle Even When The Police Officer Does Not Have Any Grounds For Suspicion Or Belief That The Driver Of That Vehicle Has Committed Or Is Committing An Offence? 66
(a) The difference between the legal standards of “reasonable suspicion” and “reasonable and probable grounds”. 66
(b) Police officers are permitted under the common law and the H.T.A. to randomly stop motor vehicles or its drivers without having suspicion of unlawful activity, which does not offend the Charter. 68
(i) The importance of highway safety and the role it plays in justifying the authority of the police to randomly stop motorists without cause for the purpose of increasing both the detection of motor vehicle offences and for deterring unlicenced and uninsured drivers from operating motor vehicles on highways. 74
(ii) Police officers do not need to have reasonable and probable grounds to stop a motorist for the purposes of enforcing various laws related to highway safety. 79
(iii) Random stops of motor vehicles on a highway are statutorily permitted in Ontario under ss. 48(1) and 216(1) of the H.T.A. 79
(iv) The police cannot use their statutory powers under ss. 48(1) and 216(1) of the H.T.A. to randomly stop motorists without cause in a parking lot on private property. 81
(a) Parking lots on private property are not highways within the meaning of the H.T.A. 83
(v) The police may randomly stop motorists in parking lots on private property to check for sobriety using their ancillary police powers derived from their duty under the common law to prevent crime and to protect life and property by controlling traffic. 87
(vi) There is no evidence that Cst. Wood had stopped the defendant to check for sobriety. 90
(vii) Investigative detentions under the common law. 90
(viii) Police officers may have multiple purposes in randomly stopping motorists on a highway under the common law. 92
(ix) Cst. Wood is only permitted to ask the defendant questions in respect to driving offences if there is no suspicion that an offence has been or is being committed. 97
(c) A motorist is not arbitrarily detained if the police officer has an “articulable cause” for conducting the traffic stop. 97
(i) Cst. Wood’s reason for stopping and investigating the defendant on May 17, 2014. 98
(4) What Information And Evidence Had Been Obtained By Cst. Wood During The Traffic Stop? 99
(a) A demand by a police officer during a random traffic stop for a motorist to provide their driver’s licence, ownership, and insurance card for the vehicle for inspection does not infringe s. 8. 100
(5) Was The Defendant’s Rights Under S. 7 Infringed When Stopped And Investigated By Cst. Wood? 100
(a) It is not necessary to decide whether the random stopping of motor vehicles by police officers infringes s. 7 of the Charter, since it infringes s. 9 of the Charter. 101
(B) WAS THE DEFENDANT OPERATING A MOTOR VEHICLE ON A “HIGHWAY” AS DEFINED UNDER S. 1(1) OF THE H.T.A.? 101
(1) The defendant was not operating his motor vehicle in a parking lot on private property. 103
(2) Does the H.T.A. apply to private property? 104
(3) Does the statutory authority under ss. 48(1) and 216(1) of the H.T.A. or the authority under the ancillary police power doctrine permit the police to randomly stop motorists operating motor vehicles that is not a parking lot, but for an area or place on private property that is used primarily for the passage of motor vehicles? 107
(4) Is the private road that runs through the private property at 7115 Rexwood Road a “highway” as defined under s. 1(1) of the H.T.A.? 109
(a) Object of the H.T.A. 111
(b) French version of the title and the definition of “highway”. 112
(c) S. 1.1 of the H.T.A. provides a broad regulation-making power that can extend the application of the H.T.A. to a specified place or class of place that is not a highway. 112
(d) Public welfare legislation is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. 114
(e) Would the legislators have used the word “highway” to define a “highway” in s. 1(1) of the H.T.A.? 115
(f) The private road running through the private property at 7115 Rexwood Road is primarily used for the passage of motor vehicles. 121
(g) Could the “general public” use or have access to the private road running on the private property of 7115 Rexwood Road for the passage of their motor vehicles? 121
(i) Signage indicating “Private Road For Peel Condominium No. 631 No Thru Traffic” and “No Trespassing Private Property”. 122
(ii) Invitation for the public to enter private property. 123
(iii) Use of the private road for the public's own use and not for purposes connected to the private property. 123
(C) HAD CST. WOOD BEEN TRESPASSING ON PRIVATE PROPERTY? 130
(1) Colour Of Right To Enter Onto Private Property Under The Trespass To Property Act, R.S.O. 1990, c. T.21. 130
(2) There Is No Gate Or Guardhouse At The Entrance To The Private Property Located At 7115 Rexwood Road. 132
(3) The Effect Of The “Private Property No Trespassing” Sign Located On The 2 Masonry Walls At The Entrance Of The Property At 7115 Rexwood Road On Police Officers And On The General Public. 132
(4) The Public Has Implied Permission To Enter Onto Private Property Under The Trespass To Property Act. 134
(5) Police Officers And The Public Have An Implied Invitation To Enter Onto Private Property Under The Common Law. 134
(6) Is Cst. Wood Permitted To Follow A Motor Vehicle Onto Private Property That He Observes Or Suspects Being Involved In Committing An H.T.A. Offence On A Highway? 142
(a) Private Property Should Not Be Used As A Sanctuary From Police Pursuit. 143
(7) Did The Defendant Have A Reasonable Expectation Of Privacy On The Private Road Running Through 7115 Rexwood Road? 144
(a) A demand to a motorist to provide a driver’s licence, ownership for the motor vehicle and proof of insurance for a vehicle is not a search under s. 8 of the Charter. 144
(E) DID CST. WOOD RACIALLY PROFILED THE DEFENDANT SO AS TO BREACH THE CHARTER? 148
(1) A Valid Traffic Stop Could Be Invalidated If It Is Shown That The Police Officer Had A Bias Towards The Defendant. 148
(2) What Is Racial Profiling In The Context Of The Charter? 150
(3) Who Has The Burden Of Proof In A Racial Profiling Claim? 156
(4) Claims That Police Officers Had Stopped Someone Because Of Racial Profiling That Infringes The Charter Is To Be Considered Under s. 9 Analysis. 157
(5) How Is A Racial Profiling Claim Proven? 159
(6) Charter Remedies Which Would Be Available Where Racial Profiling Has Been Proven. 160
(7) Racial Profiling May Be Inferred From Circumstantial Evidence. 160
(a) Some circumstances or factors that could circumstantially show a police officer had racially profiled an accused person. 160
(8) The Grounds On Which The Defendant Relies On As Circumstantial Proof That Cst. Wood Had Racially Profiled The Defendant. 163
(a) Cst. Wood is white and the defendant has brown skin. 163
(b) Cst. Wood did not have reasonable and probable grounds for stopping the defendant for an H.T.A. offence while the defendant was operating his vehicle on private property at all relevant times, since the H.T.A. does not apply to private property. 164
(c) Cst. Wood had caused the defendant fear when Cst. Wood stopped the defendant’s vehicle because Cst. Wood had the appearance of a “skinhead”. 165
(d) Cst. Wood had aggressively walked towards the defendant’s vehicle and was aggressive during the traffic stop. 166
(e) Cst. Wood had threatened to have the defendant’s vehicle impounded or towed. 167
(f) Cst. Wood had demonstrated his superiority tendencies when he had described the defendant’s “apparent race” on the Prosecution Sheet as “South Asian” without ever asking the defendant what his race was. 168
(9) Credibility And Reliability Of The Witnesses’ Observations And Testimony. 170
(a) Credibility Of Cst. Wood. 175
(b) Credibility Of The Defendant. 177
(10) Has The Prosecution Proven That The Defendant Had Been Driving His Motor Vehicle On A Highway Within The Meaning Of The H.T.A.? 184
(11) Has The Defendant Proven That Cst. Wood Had Racially Profiled The Defendant On A Balance Of Probabilities? 184
(F) DISPOSITION OF CHARTER APPLICATION 185
(G) DID THE PROSECUTION PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAS COMMITTED THE 5 REGULATORY OFFENCES THAT HE HAS BEEN CHARGED WITH? 185
(1) owner operate motor vehicle on highway without insurance - s. 2(1)(a) C.A.I.A. 186
(a) Did Cst. Wood make a demand to the defendant to produce proof of insurance for the motor vehicle being driven by the defendant? 187
(2) use validation not furnished for vehicle by Ministry - s. 12(1)(e) H.T.A. 191
(3) alter validation - s. 12(1)(a) H.T.A. 192
(4) drive motor vehicle no validation on plate - s. 7(1)(c)(i) H.T.A. 193
(5) drive motor vehicle no currently validated permit - s. 7(1)(a) H.T.A. 195
DISPOSITION 196
INTRODUCTION
[1] For the purposes of public and road safety, police officers in Ontario are constitutionally permitted to randomly stop motorists operating a motor vehicle on a public highway at any time, even when there is no suspicion of unlawful activity. Although these random roving check stops of motorists by police officers are prescribed by the common law and the Highway Traffic Act, R.S.O. 1990, c. H.8 (“H.T.A.”), they violate the motorist’s right under s. 9 of the Charter to be free from being arbitrary detained because the selection of which vehicle to stop is up to the discretion of individual police officers and not based on any legal criteria. Even so, the Supreme Court has held that it is a reasonable limit of a motorist’s right not to be arbitrarily detained within the meaning of s. 1 of the Charter, if the random stopping of motor vehicles is authorized by law and the purposes of the traffic stop is related to road safety, such as checking for sobriety, licences, ownership, insurance, and the mechanical fitness of the vehicle: R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] S.C.J. No. 53 (S.C.C.) at para. 63 and R. v. Mellenthin 1992 CanLII 50 (SCC), [1992] S.C.J. No. 100 (S.C.C.) at paras. 10 and 15. In Ontario, this power by the police to randomly stop motorists on a highway without having reasonable grounds to suspect the motorist of any unlawful activity is prescribed by law under ss. 48(1) and 216(1) of the H.T.A. This random stop power is also prescribed under the common law, as part of their duty to prevent crime and to protect life and property, and can be relied upon by the police to stop motorists who are on highways to check for sobriety, licences, insurance, and the mechanical fitness of vehicles: R. v. Dedman, 1985 CanLII 41 (SCC), [1985] S.C.J. No. 45. This common law police power to randomly stop motorists may also be relied upon to stop motorists on parking lots on private property to check for sobriety: R. v. Dillon, [2006] O.J. No. 1366 (S.C.J.O.).
[2] However, where a police officer for the purpose of road safety randomly stops and investigates a motorist simply because the motorist is of a particular race, colour, or ethnicity, but without any suspicion that the motorist may have committed an offence, then in those circumstances the police officer would have indeed stopped the motorist for an improper purpose that infringes the right under s. 9 to be free from arbitrary detention that is not saved by s. 1: Brown v. Durham Regional Police Force 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274 (Ont. C.A.), at pp. 235 and 238 and R. v. Brown, 2003 CanLII 52142 (ON CA), [2003] O.J. No. 1251 (Ont. C.A.), at para 10 and 11. Such police impropriety could in turn lead to a Charter remedy being granted where that person has been subsequently charged with committing an offence. This is what the defendant, Rishi Ganesh Bharath, who was born in Trinidad and Tobago, is claiming had occurred in his encounter with Cst. Murray Wood, a Peel Regional police officer of 13 years, who had charged the defendant with committing 5 traffic offences on May 17, 2014, when the defendant had been operating a motor vehicle. The defendant, in particular, claims that Cst. Wood, who is a white police officer, had only targeted and stopped him for merely “driving while brown”, by asserting that Cst. Wood did not have reasonable and probable grounds to stop his motor vehicle for any offence under the H.T.A., since the defendant contends that he had only been operating a motor vehicle at all times on private property, to which the H.T.A. does not apply.
[3] Furthermore, by leading with or playing the racial-profiling card in this proceeding, the defendant is hoping to use this claim about Cst. Wood’s supposed improper bias and wrongful conduct to trump the prosecution’s case against him. However, the defendant’s claim of being racially profiled may turn out to be either a joker card that has no value in the defendant’s hand, if the claim has no merit, or one that is very powerful, if the claim of racial-profiling can be circumstantially inferred from a solid foundation of evidence. But, where the defendant’s contentious claim has been constructed from incredible and implausible testimony, then the claim that Cst. Wood had acted improperly because he had been motivated by racial bias will fall apart like a house of cards, such that it will be adjudged as a concocted and disingenuous claim where it will inevitably undermine the defendant’s credibility and tarnish his character.
[4] Also, during the course of the trial of the 5 traffic charges that took three separate days to complete, the defendant, who is 40 years old, had to travel back and forth from Winnipeg, Manitoba to attend his trial dates, since he been residing there and completing his articles as a student-at-law, with the hope of being called to the Manitoba bar as a lawyer.
[5] To resolve the defendant’s Charter application and his racial profiling claim, it would require for the most part, deciding whether the defendant had been driving his motor vehicle on a public highway when observed by Cst. Wood or whether he had been only operating his vehicle on private property at all material times when stopped and investigated by Cst. Wood. At trial, Cst. Wood had testified to observing a silver-coloured Nissan Altima motor vehicle being purportedly driven by the defendant at approximately 8:56 p.m. on May 17, 2014, on Rexwood Road in the Malton area of the City of Mississauga, which Cst. Wood said is a public highway; while the defendant testified to having actually only driven his vehicle on private property at all relevant times and that his motor vehicle had not left the private property, nor driven on a public highway on the day in question. And, because the defendant contends that his motor vehicle had only been operated on private property at all times, he claims that Cst. Wood had been trespassing on that private property before and during the traffic stop and that Cst. Wood did not have, or would not have had, reasonable or probable grounds for stopping the defendant’s motor vehicle for committing a traffic offence that was being operated entirely on private property because the H.T.A. does not apply to the defendant driving a motor vehicle on private property. And, because Cst. Wood did not have a valid or legal cause, or any identifiable grounds, to stop or investigate the defendant for driving on private property, the defendant surmises that the only conceivable explanation for why Cst. Wood had stopped the defendant’s motor vehicle had to be due to Cst. Wood racially profiling him for being a person with brown skin.
[6] In addition, besides the claim that Cst. Wood had unlawfully and arbitrarily detained and investigated the defendant on private property while Cst. Wood had been trespassing on that private property, the defendant further contends that during this unwarranted and groundless stop, Cst. Wood had improperly obtained evidence and had also unjustifiably removed and seized the rear licence plate attached to his vehicle. This unreasonable search and seizure, contends the defendant, also violates his s. 8 rights.
[7] Therefore, as a result of Cst. Wood’s impugned conduct in racially profiling the defendant and his unjustifiable stop of the defendant, the defendant claims that Cst. Wood had violated his rights guaranteed under ss. 7, 8, 9, and 15 of the Charter, respectively, of the right to security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; to be secure from unreasonable search or seizure; to be free from arbitrary detention; and the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, or colour. And, for the violation of the defendant’s Charter rights by Cst. Wood, the defendant seeks an order as an appropriate remedy under ss. 24(1) and 24(2) of the Charter for the extraordinary remedy of a stay of proceedings of the defendant’s 5 traffic charges, or alternatively, to exclude both the physical evidence seized by Cst. Wood and the testimony given by Cst. Wood at trial.
[8] Ergo, because of the contentiousness of and the societal interest in the defendant’s racial-profiling claim in which only the defendant and Cst Wood had testified to the circumstances of the encounter between them, which were conflicting versions of what had occurred, the credibility of both the defendant’s and Cst. Wood’s testimony will be scrutinized in order to assess whether it can be inferred from the circumstantial evidence that Cst. Wood had racially profiled the defendant. Furthermore, finding that one of them may not be credible could have negative consequences and affect that individual’s reputation and career. And, if the racial profiling claim is established and proven by the defendant on a balance of probabilities, then the integrity and the public trust in the Peel Regional Police will also be unavoidably damaged, as well as that of the individual police officer that is the subject of the defendant’s racial profiling claim.
[9] Alas, after reviewing and considering the relevant law and applying it to the evidence adduced and accepted to be reliable in this proceeding, the defendant has failed to meet his burden in proving on a balance of probabilities that his Charter rights guaranteed under ss. 7, 8, 9, and 15 have been violated by Cst. Wood. Ergo, for the reasons that will follow, the defendant’s Charter application will be dismissed.
[10] And, as for the critically important issue of credibility, after having considered and weighed all the testimony and evidence provided at trial, especially the defendant’s inconsistent, illogical, and unreliable testimony, his evasiveness, and his overuse of his inability to recall events during cross-examination, the defendant has been found not to be a sincere or credible witness. The defendant has indeed been careless with the truth and has provided misleading and incredible testimony about the racial-profiling claim against Cst. Wood and about the defendant’s motor vehicle being situated on private property at all times on May 17, 2014.
[11] Moreover, the defendant has provided self-serving and fabricated testimony in order to place the entire event between Cst. Wood and himself completely onto private property, including testifying that Cst. Wood had been at all times parked in a designated parking space on the property of the townhouse complexes located at 7115 Rexwood Road and that the defendant had only operated his motor vehicle on that private property at all times on May 17, 2014, so that the defendant could contend that the entire H.T.A. would not have any application to the defendant’s charges. Furthermore, the defendant’s testimony that at no point had the defendant’s motor vehicle been driven on a public road on the evening of May 17, 2014, was simply not logical, nor was it reliable or well-founded, as it did not hold up under cross-examination and had indeed been concocted by the defendant.
[12] Accordingly, the prosecution has met their burden in proving that the defendant had committed those 5 offences beyond a reasonable doubt.
- THE CHARGES
[13] The defendant has been charged under a Part III information that was sworn on July 9, 2014, with committing the following 5 offences:
Rishi Ganesh BHARATH, of [townhouse unit number removed for privacy], 7115 Rexwood Road, Mississauga, Ontario, on or about the 17th day of May, 2014, at the City of Mississauga in the Central West Region did commit the offence of:
(1) being the owner of a motor vehicle, license number BNCH540, did unlawfully operate the said motor vehicle on a highway: Rexwood Road, at approximately 8:56 p.m., when it was not insured under a contract of automobile insurance
contrary to the Compulsory Automobile Insurance Act Section 2(1)(a)
(2) AND FURTHER THAT Rishi Ganesh BHARATH
on or about the 17th day of May, 2014, at the City of Mississauga in the Central West Region
did unlawfully use evidence of validation upon a number plate displayed on a motor vehicle other than evidence of validation furnished by the Ministry in respect of that motor vehicle
contrary to the Highway Traffic Act Section 12(1)(e)
(3) AND FURTHER THAT Rishi Ganesh BHARATH
on or about the 17th day of May in the year 2014 at the City of Mississauga in the Central West Region
did unlawfully alter evidence of validation issued by the Ministry
contrary to the Highway Traffic Act Section 12(1)(a)
(4) AND FURTHER THAT Rishi Ganesh BHARATH
on or about the 17th day of May in the year 2014 at the City of Mississauga in the Central West Region
did unlawfully drive a motor vehicle on a highway, to wit Rexwood Road, at approximately 8:56 p.m., when the number plate on the said vehicle displayed no current validation of the permit
contrary to the Highway Traffic Act Section 7(1)(c)(i)
(5) AND FURTHER THAT Rishi Ganesh BHARATH
on or about the 17th day of May in the year 2014 at the City of Mississauga in the Central West Region
did unlawfully drive a motor vehicle on a highway, to wit Rexwood Road, at approximately 8:56 p.m., without having a currently validated permit for the motor vehicle
contrary to the Highway Traffic Act Section 7(1)(a)
- BACKGROUND
[14] Cst. Wood had testified that he had observed on May 17, 2014, at approximately 8:56 p.m., a silver-coloured Nissan Altima motor vehicle being driven eastbound on Rexwood Road in the City of Mississauga, in the area of Netherbrae Road and Rexwood Road, which is in a residential area. Soon after spotting the Nissan motor vehicle, Cst. Wood said he had queried the status of the vehicle, as many police officers do in the Region of Peel, by entering the licence plate number “BNCH540” that he had observed on the rear of the Nissan vehicle into his onboard computer or date terminal. In addition, Cst. Wood said that he had been driving eastbound on Rexwood Road and following directly behind the Nissan vehicle in his low-profile police cruiser for between 30 seconds to a minute, when he had received information on his onboard computer or data terminal that the permit for the Nissan vehicle he had queried about had expired on February 11, 2013, and that insurance for the vehicle was not confirmed. However, Cst. Wood said that he had also observed what appeared to be a valid validation sticker indicating “DEC 14” on the rear licence plate of the Nissan vehicle that would infer that the registration permit for the vehicle would expire in December of 2014. Because of that discrepancy between what he had observed as a valid validation tag that would not expire until the month of December in 2014 and the information that he had received about the permit for the vehicle expiring in 2013, Cst. Wood said he had decided then to stop the vehicle for further investigation and had activated the emergency roof lights on his police cruiser in order to signal the driver of the Nissan motor vehicle to stop.
[15] Moreover, Cst. Wood admits that he may have followed the Nissan motor vehicle driven by the defendant onto private property after he had observed that vehicle being driven on a public highway. In addition, Cst. Wood said that after he had turned on his emergency roof lights, he had been travelling on a roadway with markings painted on the road that separated the roadway into lanes for opposing traffic or for motor vehicles to travel on, up to the point where the Nissan motor vehicle had stopped. Moreover, as shown in the photographs entered as Exhibits #4E, #4G and #4H, both Rexwood Road which runs west of the 2 masonry walls and the private road that runs east of the 2 masonry walls on the property that comprises the townhouse complexes located at 7115 Rexwood Road have such yellow lines painted on the road surface that separates the road into lanes of opposing traffic.
[16] However, the defendant disputes Cst. Wood’s version of where the defendant had been driving and claims that Cst. Wood had been parked in one of the 5 off-road parking spaces located just east of the 2 masonry walls situated at the entrance to the private property located at 7115 Rexwood Road, before Cst. Wood had activated the emergency lights on the police cruiser and stopped the defendant’s motor vehicle on a private road located on the private property known as Peel Condominium Corporation No. 631.
[17] In addition, after the Nissan motor vehicle had come to a stop, Cst. Wood said he had approached the driver of the stopped vehicle and made a demand to the driver to provide his driver’s license, permit for the motor vehicle, and proof of insurance for the vehicle. Cst. Wood then said the driver provided a valid Ontario photo driver’s license in the name of Rishi Ganesh Bharath with a date of birth of February 11 [year of birth removed for privacy] and an expired permit for the vehicle that showed an expiry date of February 11, 2013. However, Cst. Wood said the driver had been unable to provide Cst. Wood with any proof of insurance for the motor vehicle. Furthermore, Cst. Wood said that he had been satisfied with the driver’s identification and that the person he stopped was Rishi Bharath and the person before the court.
[18] Cst. Wood also testified that the motor vehicle had Vehicle Identification Number (“V.I.N.”) IN4AC11DZ3C115114.
[19] Moreover, Cst. Wood said that when he inspected the validation sticker on the rear licence plate, which had indicated an expiry month of December 2014, he said the sticker had appeared not to be legitimate but appeared to be false, as it appeared to be cut, pasted over, and taped over the expired tag. In particular, Wood said the number “14” was cut out and that there had been tape placed over the square. In addition, Wood said the sticker, which is a one-inch square with black lettering which indicated “DEC 14”, and which had been affixed on the plate had not appeared to be expired, although it should have been. He also said that the validation tag that is numbered 0554883D had expired on February 11, 2013.
[20] Cst. Wood also said that he had removed the rear license plate with the suspected false December 2014 validation sticker and had taken it back to his station in order to properly remove the validation sticker from the license plate without damaging or destroying the sticker. He also said that he did not attempt to remove the validation sticker during the traffic stop, as he did not have the right tools, and had also believed that he would damage the sticker if he had attempted to remove it from the license plate while the plate was still attached to the motor vehicle in a vertical position. Cst. Wood then said, that back at his station at 180 Derry Road, he had been able to remove the validation sticker with a blade or an Exacto knife without destroying it. However, before he had removed the validation sticker from the license plate numbered BNCH540, he said he had taken a photocopy of the plate with the false validation sticker still attached (Exhibit #2). After removing the “DEC 14” validation sticker at the station he said he then attached it with tape to his original notes that he had written up for the defendant’s charges. Cst. Wood then confirmed that the validation sticker entered as Exhibit #1 was the one he had removed from the rear Ontario license plate numbered BNCH540 and that the fraudulent validation sticker had been in his possession in his locked desk or with him for previous court appearances, since the time he had removed it from the license plate.
[21] In addition, Cst. Wood said that after he had removed the fraudulent “DEC 14” validation sticker from the license plate he had returned the licence plate to the Ministry of Transportation.
[22] As for the lighting at 8:56 p.m. on May 17, 2014, Cst. Wood said that it had not been an issue for him. He also said that the street would have had common street lighting and the area would have been illuminated by artificial lighting. He also said that the headlights of his police cruiser, the streetlights, the license plate light, and the plate being reflective did not make it difficult for him to see the license plate at night. Wood also said that he had a clear sight and a good view of the rear license plate of the motor vehicle being driven by the defendant. In addition, he said that he does not need eyeglasses for driving, nor does he wear eyeglasses or contact lenses, and only uses reading glasses for reading.
[23] Moreover, Cst. Wood said that he had not been parked in one of the 5 off-road parking spaces on the private property at 7115 Rexwood Road, but operating a motor vehicle directly behind the defendant’s motor vehicle when he had first observed the defendant’s Nissan Altima motor vehicle travelling eastbound on a public road named Rexwood Road.
[24] However, Cst. Wood said that he does not recall the colour of the unmarked police car he had been using on the evening of May 17 , 2014, when he had stopped the defendant.
[25] In addition, Cst. Wood, who describes himself as white or Caucasian, had testified that he had only seen that the defendant’s vehicle had a driver, but did not see whether the driver was a brown or green-coloured person before he had stopped the defendant’s vehicle. Cst. Wood then said that it was only after that he had stopped the defendant’s vehicle and had approached the vehicle that he had noticed that the driver appeared to be a South Asian person. Furthermore, Cst. Wood also remarked that there are many minority persons in the Region of Peel and that he would be a minority person in many areas of the Region. In addition, Cst. Wood said that he does not stop people based on their ethnicity, and had stopped the defendant’s motor vehicle because of the validation sticker issue and the unconfirmed status of insurance for the vehicle, and that race had no bearing in Cst. Wood stopping the defendant.
[26] Furthermore, Cst. Wood said that it was easy to do the combined tasks of driving, braking, steering, typing a license plate number into his computer terminal, and then reading the information resulting from his query on the terminal while following the defendant’s motor vehicle. He also said that he does this hundreds of times during a shift.
(a) Summary of the proceedings
[27] After Cst. Wood completed his investigation on the evening of May 17, 2014, Cst. Wood charged the defendant, Rishi Bharath, with committing 5 regulatory offences: 4 under the H.T.A. and 1 under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“C.A.I.A.”). The 5 charges are for:
(1) “owner operate motor vehicle on highway without insurance”, contrary to s. 2(1)(a) of the C.A.I.A.;
(2) “use validation not furnished for vehicle by Ministry”, contrary to s. 12(1)(e) of the H.T.A.;
(3) “alter validation”, contrary to s. 12(1)(a) of the H.T.A.;
(4) “drive motor vehicle, no validation on plate”, contrary to s. 7(1)(c)(i) of the H.T.A.; and
(5) “drive motor vehicle, no currently validated permit”, contrary to s. 7(1)(a) of the H.T.A.
[28] Summonses had also been served on the defendant at the traffic stop by Cst. Wood, which directed the defendant to appear in court on July 10, 2014, for those 5 regulatory charges. The defendant then appeared on the first appearance date of July 10 and set his 5 matters down for trial to be heard on March 23, 2015. However, on March 23rd, the defendant’s trial was postponed to August 31, 2015, at the defendant’s request, so that the defendant could file a s. 11(b) Charter application for unreasonably delay. On August 31st, the unreasonably delay application to stay the proceedings was argued by the defendant. However, the defendant had failed to prove on a balance of probabilities that the defendant’s right to a speedy trial had been infringed, and therefore, the defendant’s application was dismissed. Moreover, on the first trial date scheduled for March 23, 2015, the length of time to reach trial would have been only 8 months and 3 weeks from the date the defendant was first charged on May 17, 2014, after deducting 1.5 months for a reasonable intake period from the actual length of 10 months and 1 week to get a trial. Ergo, that period of 8 months and 3 weeks was well within the Morin administrative guideline of 8 to 10 months to get to trial, yet the defendant had sought an adjournment on the first trial date of March 23, 2015, to file an 11(b) application. Additionally, the defendant had failed to establish any prejudice as a consequence of the time it took to get to trial.
[29] The trial of these five charges then commenced and were completed over three days: August 31 and December 11 of 2015, and March 21, 2016. Only two witnesses testified in the trial: (1) Cst. Murray Wood, the police officer who charged the defendant, and (2) the defendant.
[30] During the trial, the prosecution had also brought an application under s. 34 of the Provincial Offences Act, R.S.O. 1990, c. P.33, to amend the licence plate number stated in count #1 on the information from “BNCM540” to “BNCH540” to match the evidence given by Cst. Wood. The amendment of changing one letter from an “M” to an “H” was granted as it was clearly a typographical error, since the summonses attached to the information had the correct licence plate number of “BNCH540” and there was no prejudice or injustice to the defendant in granting the prosecution’s application to amend the information to correct the typographical error in one letter of the licence plate.
[31] However, prior to the continuation of the trial on March 21, 2016, the defendant during the last week of February of 2016 sent or filed an undated Notice of Constitutional Question on the provincial prosecutor and the court in respect to the racial profiling claim. However, in bringing this particular Charter application, the defendant did not meet the legal notice requirements required under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, in that he had failed to serve notice of this particular constitutional question on both the Attorney-General of Ontario and the Attorney-General of Canada. The defendant was then informed about the mandatory notice requirements under s. 109, but to properly utilize scarce and valuable courtroom time, the defendant was permitted to proceed with his Charter application with the proviso that he had to comply with the statutory notice requirements in s. 109 before any constitutional remedy, if so warranted, could be granted, and that the respective Attorney-Generals would be permitted to make submissions on the defendant’s Charter Application if they attended on the next date to do so. After hearing the Charter application and final arguments on whether the prosecution had proven that the defendant had committed the 5 regulatory offences beyond a reasonable doubt, the matter was then adjourned to June 24, 2016, for judgment.
[32] Subsequently, the defendant filed affidavits of service that he had served the Notice of Constitutional Question on the respective Attorney-Generals on March 29, 2016, but on June 24, 2016, neither of the Attorney-Generals attended to make submissions on the defendant’s Charter application.
(b) Position of the Parties
[33] In his defence to the 5 charges, the defendant contends that the charges should be dismissed since the acts or omissions he allegedly committed in respect to his motor vehicle and the operation of that motor vehicle at 8:56 p.m. on May 17, 2014, in the City of Mississauga, had at all material times occurred on private property, which the defendant argues, means that his acts or omissions that form the basis of his charges are not governed by the H.T.A. since he contends that the H.T.A. does not operate on or apply to motor vehicles being operated entirely on private property.
[34] Furthermore, the defendant contends that because the H.T.A. had no effect while his Nissan Altima motor vehicle had been driven at all relevant times on May 17, 2014, on the private property which comprises the townhouse complexes located at 7115 Rexwood Road, then Cst. Wood would not have had reasonable and probable grounds to stop and investigate the defendant for any H.T.A. offence. As such, the defendant believes that the only rational explanation for why he had been improperly stopped by Cst. Wood while operating a motor vehicle on private property was because Cst. Wood had targeted him due to the colour of his skin, or due to his ethnicity or race, which the defendant submits would be a violation of the defendant’s Charter rights guaranteed under ss. 7, 8, 9, and 15. And, as a result of his Charter rights being infringed by Cst. Wood, the defendant seeks as a remedy under ss. 24(1) and 24(2) respectively, either an order to stay the proceedings or, alternatively, an order to exclude the testimony of Cst. Wood and of the evidence obtained or seized by Cst. Wood during the uncalled-for traffic stop of May 17, 2014.
[35] Moreover, the defendant contends there is evidence that shows Cst. Wood, who is a white police officer, had a bias towards him. This consists of the defendant’s testimony where the defendant said he had been put him in fear when stopped by Cst. Wood, because Cst. Wood had looked menacing due to Cst. Wood’s appearance of having a clean-shaven head and wearing black attire, which resembled the look of a “skinhead” that had brought up memories of skinheads to the defendant. In addition, the defendant said that Cst. Wood had been carrying a firearm and that Cst. Wood had been walked aggressively towards the defendant’s vehicle and had also acted aggressively towards the defendant during the traffic stop by speaking roughly, threatening to have the defendant’s vehicle towed and impounded, and by removing and seizing the rear licence plate from his vehicle, and also because Cst. Wood had shown superiority tendencies in his dealings with the defendant by showing that he was all-knowing in stating the defendant’s apparent race on the Prosecution Sheet document (Exhibit #7) as “South Asian” without having asked the defendant what his race was during the traffic stop.
[36] On the other hand, in response to the defendant’s contention that the defendant had been racially profiled by Cst. Wood and the defendant’s contention that he had not been operating a motor vehicle on a highway, but on private property at all times, the prosecution argues that the defendant has failed to prove Cst. Wood had racially profiled the defendant as the sole reason for the traffic stop on a balance of probabilities, since Cst. Wood could not have observed who had been driving the Nissan Altima motor vehicle while Cst. Wood had been following directly behind the vehicle, and did not even observe who the driver of the vehicle had been until Cst Wood had exited his police cruiser and approached the driver’s side window of the vehicle after the vehicle had come to a stop. And, it was only at that moment that Cst. Wood could have observed the race of the driver of the vehicle he had stopped. In addition, the prosecution submits that Cst. Wood had first observed the defendant’s motor vehicle being operated on a public roadway known as Rexwood Road and that Cst. Wood had admitted that he might have then followed the defendant’s vehicle onto private property after seeing the defendant’s motor vehicle first being operated on a public highway. Furthermore, the prosecution contends that Cst. Wood did have articulable cause to stop and investigate the defendant’s vehicle on May 17, 2014, at 8:56 p.m., after observing the vehicle being driven on a public highway, since Cst. Wood had done a licence plate query of the defendant’s motor vehicle and had received information that the permit for the defendant’s vehicle had expired on February 11, 2013, and that this information had contradicted the apparently valid December 2014 validation tag that Cst. Wood had observed on the rear licence plate of the defendant’s vehicle.
[37] Moreover, the prosecution submits that the defendant’s testimony should not be believed because the defendant’s testimony had been incredible, illogical, inconsistent, and unreliable, as well as the defendant’s responses to simple uncontentious questions in cross-examination had been evasive; while Cst. Wood’s testimony should be accepted since Cst. Wood had given credible testimony that had been logical, consistent, and reliable. In addition, the prosecution submits that the defendant is only trying to deflect his responsibility and distract the court with those red herrings about being racially profiled, about not being able to recall what he did on May 17, 2014, about what he had been doing at 8:00 p.m. that evening, or what he had been doing that evening since it had happened so long ago, and because of his emotional state over his deceased grandmother, who had passed away two months earlier in March of 2014.
[38] In addition, the prosecution submits that the defendant had also testified that May 17 had been an ordinary day and that he was unemployed at the time and had no work to go to. In addition, the prosecution points out that the defendant gave inconsistent responses to questions or that he changed his story about certain events such as when said that he did not recall where his vehicle had been parked in April and May of 2014, but then when the defendant had been asked if his vehicle had been parked in the garage during those two months the defendant had replied vaguely that it may have been, but that he could not recall whether it had been. Then, later the defendant said that he had not driven his vehicle from the time he was unemployed to the time he had been stopped by Cst. Wood on the evening of May 17, 2014, and that his vehicle had been either parked in the garage or at one of the 5 off-road parking spaces where he said his that vehicle had been parked on May 16 and May 17. Furthermore, the prosecution submits that the defendant had said that he could not recall why it had taken him one and a half days to move his vehicle back into the garage after he had placed the cover on his deceased grandmother’s wheelchair, but then quipped it must have been due to laziness or because he lost track of time. In addition, the prosecution draws attention to the defendant’s vague response to being asked which direction the defendant had been walking to his vehicle when he went to move his vehicle back into his garage from the place where he had parked it for a day and a half, the defendant said he had walked to his vehicle but could not recall where he had been coming from or in which direction he had walked to his vehicle and that he may have been out for a walk in and around the area at the time.
[39] The prosecution also submits that the defendant had been evasive in his responses to non-contentious questions such as when the defendant had been asked if the defendant was responsible for the vehicle that he owned and the defendant had replied in the negative. The prosecution then also emphasized that the defendant gave inconsistent answers such as when he said that his parents and his sister had not been residing at the townhouse at 7115 Rexwood Road in the month of May 2017, and then stated in response to a question that he could not recall if he had sole control of his vehicle. The prosecution also points to another inconsistent response to the question of why his vehicle had not been parked in his townhouse’s garage on May 17, 2014, and the defendant said that he may have been cleaning the garage, but then had also stated that he could not recall what he did on May 17, 2014.
(c) Why did the defendant believe Cst. Wood had racially profiled him?
[40] The defendant had testified that when he had cross-examined Cst. Wood he became aware of Cst. Wood racially profiling him before Cst. Wood had actually stopped him on May 17, 2014. Moreover, the defendant believes that Cst. Wood had racially profiled him due to a number of circumstances. First, Cst. Wood is white while the defendant has brown skin. Second, the defendant contends that because Cst. Wood did not have reasonable and probable grounds for stopping and investigating him or his vehicle while the defendant was operating his vehicle at all relevant times on private property, since the H.T.A. does not apply to private property, so that the only rational reason Cst Wood would have had for stopping the defendant had been because Cst. Wood had stopped the defendant because he was a person of colour. Third, the defendant testified that when he had stopped for Cst. Wood, Cst. Wood had approached his vehicle in an aggressive and menacing manner and had been aggressive during the course of the traffic stop by speaking roughly. Fourth, the defendant said that when Cst. Wood had first approached his vehicle the defendant had been put into fear because Cst. Wood had the appearance of a “skinhead” based on Cst. Wood’s clean-shaven head and due to Cst. Wood wearing black clothing and carrying a firearm. Fifth, Cst. Wood had removed and seized the rear licence plate affixed to his vehicle. Sixth, the defendant said that Cst. Wood had threated to have the defendant’s vehicle impounded and towed. And seventh, the defendant said that Cst. Wood demonstrated his superiority tendencies when he had described the defendant as “South Asian” on the prosecution sheet (Exhibit #7) under the category “apparent race” without ever asking the defendant what his race was.
[41] On the other hand, when the defendant was asked in cross-examination what experiences had the defendant had with “skinheads” in Canada, the defendant said he had seen some in person, maybe in 2012 or 2013 in Southern Ontario on bikes. He also said that in England they are a group of right-wing, neo-Nazi types. In addition, he said that he had seen documentaries on “skinheads” in the U.K.
[42] Moreover, at the time the defendant had been stopped by Cst. Wood, Cst. Wood said he had been in full police uniform of the Peel Region Police.
[43] In addition, the defendant who was born in Trinidad and Tobago said that he considers himself to be a Canadian first and a “Trini” second.
[44] Furthermore, the defendant’s vehicle had not been impounded and towed away and the defendant had been allowed by Cst. Wood to drive his vehicle home, which had been very close to where Cst. Wood had stopped the defendant’s vehicle.
[45] Also, Cst. Wood had said that he had removed and seized the rear licence plate from the defendant’s vehicle so that he could take it back to his police station so that he could properly remove the faux validation tag (Exhibit #1) from the licence plate as evidence. And, after removing the validation tag and affixing it to the notes he had prepared of the event with the defendant, Cst. Wood said he had returned the seized licence plate back to the Ministry of Transportation, since it was not typical for him to keep the plate.
[46] As for describing the defendant’s apparent race as “South Asian” on the Prosecution Sheet, Cst. Wood said that he had chosen that category of race from one of seven available choices from the drop-down menu in the computer program he was using to prepare the Prosecution Sheet, which he had thought would be the closest to the one that would describe the defendant’s apparent race. The other 6 possible options that Cst. Wood could have chosen for the defendant’s “apparent race” in the drop-down menu had not been given in evidence.
(d) Who is the owner of the silver-coloured Nissan Altima motor vehicle with licence plate number BNCH540 that was being driven by the defendant?
[47] The prosecution has proven beyond a reasonable doubt that the defendant is the registered owner of the silver-coloured Nissan Altima motor vehicle with licence plate number BNCH540 that had been stopped and investigated by Cst. Wood and driven by the defendant at 8:56 p.m. on May 17, 2014. This is proven by the certified document issued by the Ontario Ministry of Transportation on July 11, 2014 (Exhibit #3), which confirms that the Nissan Altima motor vehicle is a 2003 silver-coloured 4-door motor vehicle with a licence plate number of BNCH540 and V.I.N. 1N4AL11D23C115114 and that its registered owner is the defendant, Rishi G. Bharath, who resides at the townhouse complexes located at 7115 Rexwood Road in the City of Mississauga. The certified document also indicates that the vehicle permit and the validation tag for the rear licence plate of the defendant’s Nissan Altima motor vehicle had expired last on February 11, 2013, 15 months before Cst. Wood had stopped the defendant.
[48] Moreover, the defendant had testified that he thinks that he had bought the 2003 Nissan Altima vehicle in the year 2012 as a used vehicle.
[49] In addition, the certified Ministry document entered as Exhibit #3 does not indicate that the defendant’s Nissan Altima motor vehicle is a commercial motor vehicle, a truck, or over-sized vehicle.
[50] However, when asked under cross-examination if the defendant was the primary driver of the Nissan Altima motor vehicle, the defendant testified that because he was unemployed and had limited income the defendant’s vehicle had been either parked in the garage of his family’s townhouse located in the townhouse complexes at 7115 Rexwood Road or that it had been parked in one of the 5 off-road parking spaces situated just east of the 2 masonry walls where he said it was parked on May 17, 2014, and as he had marked with an “X” on the two photographs entered as Exhibits #4A and #4C, as the location where he said he had parked his vehicle. He also said he was unemployed in May of 2014 and that from when he was unemployed to May 17, 2014, when Cst. Wood had stopped him, the defendant said he never took his vehicle anywhere.
(e) What were Cst. Wood’s duties on May 17, 2014?
[51] Cst. Wood testified that on May 17, 2014, he was working in a uniform capacity as a police officer of the Peel Region Police and driving an unmarked police vehicle and conducting general traffic patrol. He also said that he is a member of the traffic enforcement division of the Peel Region Police and has been a police officer for 13 years. However, Cst. Wood had been unable to recall the colour of the unmarked police vehicle that he was using on that particular shift.
(f) The particular area in Mississauga where the event of May 17, 2014, between Cst. Wood and the defendant had supposedly occurred.
[52] Cst. Wood testified that at 8:56 p.m. he had been patrolling in the Netherbrae Road and Rexwood Road area when he had stopped a silver-coloured Nissan Altima motor vehicle with licence plate number BNCH540. He also testified that he had observed the Nissan Altima motor vehicle traveling eastbound on Rexwood Road in the City of Mississauga at 8:56 p.m. Wood also said that Rexwood Road is a public highway located in a residential neighbourhood known as the Malton area of Mississauga. Moreover, he said that he had observed the Nissan Altima vehicle in the area where Rexwood Road intersects with Netherbrae Road.
[53] In addition, Cst. Wood said that Rexwood Road travels in a north and south direction at first and then turns into an east and west direction road while Netherbrae Road is a north and south road, which is also a public road that intersects Rexwood Road.
[54] From the sketch made by the defendant (Exhibit #6) and the photograph of the map on the masonry wall that depicts the bird’s eye view of the layout and orientation of Rexwood Road and Netherbrae Road in relationship to the layout of the property of the townhouse complexes located at 7115 Rexwood Road (Exhibit #4B), Rexwood Road is depicted as an east and west roadway that is located to the west and to the north of the townhouse complexes located at 7115 Rexwood Road and then joins into or becomes a private road on the northside of the townhouse property. Moreover, just before the public highway known as Rexwood Road joins the private road that enters and continues on the private property, there are two masonry walls situated on each side of the entrance to the townhouse property with signage posted on the two walls indicating that it is a “private road” and that there is “no through traffic” and that it is “private property” with “no trespassing”. In addition, the private road that runs east of the 2 masonry walls is a continuous extension of the public highway known as Rexwood Road.
[55] Furthermore, the signage being displayed on those 2 masonry walls at the entrance to the townhouse complexes had been photographed by the defendant on May 19, 2014, 2 days after the defendant was stopped and charged by Cst. Wood. These signage photographs were entered as part of 11 photograph exhibits numbered consecutively as Exhibits #4A to #4K.
[56] Moreover, the public road known Netherbrae Road can be seen on the defendant’s sketch and on the aerial map as a north and south road that intersects Rexwood Road at a point just west of the entrance to the townhouse complexes at 7115 Rexwood Road. The intersection of Rexwood Road and Netherbrae Road is a three-way intersection in which Netherbrae Road only runs north of Rexwood Road and does not continue south of Rexwood Road.
[57] And, even though it may not be relevant for any determination that has to be made in this proceeding, there has been no evidence adduced at trial on whether the residents of this area are mainly made up of any particular ethnic or cultural group.
(g) Description of the roadway known as Rexwood Road where Cst. Wood had observed the defendant supposedly driving the Nissan Altima motor vehicle.
[58] Cst. Wood had testified that he had first observed the Nissan Altima motor vehicle travelling eastbound on Rexwood Road near the intersection of Rexwood Road and Netherbrae Road in the Malton area of Mississauga on May 17, 2014, at 8:56 p.m. He also said that this was a public highway with marked lanes, which had yellow lines separating the lanes for opposing traffic on the main part of the street. However, he also said that he might have followed the vehicle onto private property. In addition, he said that Rexwood Road first travels northbound and then turns eastbound while Netherbrae Road is a north and south direction road that intersects with Rexwood Road.
[59] Moreover, from the photograph entered as Exhibit #4A and the hand-drawn sketch entered as Exhibit #6, in which the defendant had marked with an “X1” to show where he had stopped his vehicle after being signaled to do so by Cst. Wood, which he said was 150 to 200 meters east of the spot where his vehicle had been parked, yellow lines can be clearly seen on the roadway separating the roadway into lanes of traffic for opposing traffic, as well as yellow lines that are visible at the side of the roadway that demarcates the road portion from the off-road parking spaces at the southside of the private road. In addition, there are 5 off-road parking spaces demarcated with distinct yellow lines that are painted on the road surface indicating individual parking spaces for motor vehicles located immediately beside the private road. In addition, the private road is not used for the purpose of parking motor vehicles, but is primarily used for motor vehicles to travel on or to traverse about the townhouse complexes. It also intersects with the three sideroads that are between the townhouse complexes.
[60] Moreover, Rexwood Road is a public highway that ends at the 2 masonry walls that are located respectfully on the north and south sides of the roadway at the entrance to the property of the townhouse complexes located at 7115 Rexwood Road. Rexwood Road is also not located on private property. However, the private road is connected to Rexwood Road and continues into the townhouse complexes, so that all visitors and residents of the townhouse complexes of 7115 Rexwood have to drive their motor vehicles onto the private road to enter the private property from Rexwood Road or they have to drive their vehicles on the private road for exiting the private property which then immediately becomes Rexwood Road.
[61] In addition, the spot where the defendant said he had supposedly stopped his motor vehicle when Officer Wood had signaled for him to stop is situated east of the 2 masonry walls on the private road within the private property.
[62] Also, from the photographs entered as Exhibits #4D, #4E, #4G, #4H, and #4J, there are yellow lines visible on the road that runs east of the 2 masonry walls and a yellow line that runs west of the 2 masonry walls indicating the road is separated into lanes of opposing traffic. The yellow lines on the east side of the 2 masonry walls only run to the yellow speed bump located east of the 2 masonry walls and also ends in the area of the most easterly off-road parking space of the 5 off-road parking spaces.
[63] In addition, there is a “Dead End” sign shown in the photograph entered as Exhibit #4E that shows the sign erected west of the 2 masonry walls and in the middle of Rexwood Road.
(h) The townhouse complexes located at 7115 Rexwood Road, Mississauga is private property.
[64] At the time the defendant was stopped and charged by Cst. Wood, the defendant had been residing at a townhouse located at unit # [removed for privacy] in the townhouse complexes located at 7115 Rexwood Road in the City of Mississauga. The defendant said that he has been residing in his family’s townhouse since 2011. The townhouse is owned by the defendant’s parents and his sister. On May 17, 2014, or during the month of May of 2014, the defendant said that neither his parents nor his sister had been residing at the townhouse. He also said that his parents reside in Trinidad and Tobago and visit him occasionally while his sister travels back and forth between Trinidad and Tobago and Canada and other places because she is employed in the petroleum industry.
[65] Also, from Exhibits #4A and #4B, which are photographs of the aerial view of the plan of the townhouse complexes, there is an indication that there are 128 individual townhouses or units numbered 1 to 128, known as Peel Condominium Corporation No. 631. Presently, the property at 7115 Rexwood Road is managed by Zoran Property Management Ltd. (as set out in a letter marked as Exhibit #5). The aerial plan also shows there are several townhouse complexes that are situated on the property that comprise Peel Condominium Corporation No. 631. There are also signs posted on the two masonry wall structures that are located at the entrance to the property of the townhouse complexes, which indicate that the speed limit on the roadways within the property of the townhouse complexes is 10 k.p.h. and that the property is private property and that trespassing is not permitted and that the roadway which is connected to Rexwood Road does not provide for through traffic.
[66] In addition, it can been seen on the aerial plan that there are three sideroads separating the townhouse complexes within the property located at 7115 Rexwood Road, in which the residents can use to drive their motor vehicles to access the driveways to their individual townhouses or units.
[67] Moreover, the photographs marked as Exhibits #4F and #4J show that the townhouses in those photographs have garages and a driveway leading to the garage door and that a van can fit on the length of the driveway.
(i) How familiar had Cst. Wood been with the area and roadways surrounding 7115 Rexwood Road in Mississauga?
[68] Cst. Wood testified that he is familiar with and had been in the Malton area before and that the Malton area is one area besides other areas in the Region of Peel that he regularly patrols. He also said he had a general familiarity with various areas of Mississauga. However, when asked under cross-examination about his familiarity with the private roads in the townhouse complex at 7115 Rexwood Road, Cst. Wood said that he could not make a comment on that query.
[69] Although Cst. Wood has been a Peel Regional police officer for over 13 years and in the traffic enforcement division, and had said he regularly patrols the Malton area of Mississauga, it does not appear from his testimony that he is greatly familiar with the physical layout and road system within the private property located at 7115 Rexwood Road. However, not having great familiarity with the townhouse complexes located at 7115 Rexwood Road and of the private roads running within that private property does not necessarily affect Cst. Wood’s credibility, since conducting regular traffic patrols of private property may not be part of Cst. Wood’s regular police or traffic duties. One would expect that a police officer assigned to the traffic division would patrol public roads and not private roads on private property for enforcing the H.T.A. In addition, his unfamiliarity with the private road and private property of 7115 Rexwood Road would also indicate that Cst. Wood may not know where the private road that is a continuous extension of Rexwood Road actually commences.
(j) Signage at the entrance to the townhouse complexes located at 7115 Rexwood Road indicating that the property is “private property” with “no trespassing” and that “violators will be prosecuted” and that the roadway connected to Rexwood Road is a “private road for Peel Condominium No. 631” with “no thru traffic” and with a “maximum speed of 10 km/h”.
[70] Moreover, photographs marked as Exhibits #4B, #4C, #4G, #4I, and #4K show that there are 2 masonry walls located on the northside and southside of the roadway at the entrance to the townhouse complexes located at the 7115 Rexwood Road, Mississauga townhouse property, and that they have signage placed on them. On the southside masonry wall can be seen three signs that state “Maximum Speed 10 km/h”, “Private Road For Peel Condominium No. 631 No Thru Traffic”, and “Private Property No Trespassing”, while on the northside masonry wall the single sign states “No Trespassing No Dumping Violators Will Be Prosecuted”.
[71] In short, the property encompassing the 128 townhouses in separate complexes known as Peel Condominium No. 631 would be private property and that any roads within that condominium property would be on private property, and therefore, they would be private roads.
(k) The place on the private road where the defendant said he supposedly stopped his motor vehicle after being signaled to do so by Cst. Wood.
[72] In the photograph entered as Exhibit #4A and the sketch drawn by the defendant entered as Exhibit #6, the defendant had drawn and marked the photographs with the characters “X1” to indicate where he had stopped his vehicle on the private road after being signaled to do so by Cst. Wood.
[73] Furthermore, the private road, as can be seen in the photograph marked as Exhibit #4D shows yellow painted lines on the road surface, which indicate that the private road had been demarcated into lanes for opposing traffic, but the yellow lines end at the yellow speed bump on the private road located east of the 2 masonry walls and opposite to the most easterly parking space of those 5 off-road parking spaces situated just east of the 2 masonry walls.
[74] The defendant also testified that from the spot where the defendant had parked his motor vehicle in one of those 5 off-road parking spaces that he had marked as “X2” on the photograph entered as Exhibits #4A and the hand-drawn sketch entered as Exhibit #6, and which had also been close to where the defendant contends Cst. Wood’s cruiser had also been parked in one of those 5 off-road parking spaces that he had marked with a large blue “X” on the photographs entered as Exhibits #4A, #4C, #4D, #4F, #4G, and #4H, and on the sketch entered as Exhibit #6.
[75] Furthermore, the defendant testified that the distance from the spot where he said the defendant’s motor vehicle had been supposedly parked in one of the 5 off-road parking spaces near the entrance to the townhouse property, marked as “X2” on the photographs, to the spot where the defendant had testified to stopping his motor vehicle for Cst. Wood on the private road that he had marked as “X1” on the photographs, was a distance of approximately 150 to 200 meters.
[76] Ergo, the road that runs immediately east of the two masonry walls is on private property. And, if the defendant’s testimony is accepted as to where he had stopped his vehicle for Cst. Wood then the place where the defendant had stopped his motor vehicle for Cst. Wood is located east of the two masonry walls and would therefore be on private property.
[77] However, the private road on the private property where the defendant said he had been driving on for approximately 150 to 200 meters is not a parking lot. The defendant had acknowledged during cross-examination that this private road is used by all the residents of the 128 townhouses located at 7115 Rexwood Road to drive their motor vehicles on, in order to connect to the public highway known as Rexwood Road.
[78] Therefore, this private road, as shown in the photographs marked as Exhibits #4A, #4C, #4D, #4F, #4G, and #4H, is not a parking lot, but a place or road on the private property that is primarily used for the passage of motor vehicles.
(l) There are 5 off-road parking spaces located just east of the entrance of the property of the townhouse complexes located at 7115 Rexwood Road.
[79] In the photographs marked as Exhibits #4A, #4C, #4D, #4F, #4G, and #4H, there can be seen 5 off-road parking spaces adjacent to the private road, located just east of the masonry walls at the entrance to the property of the townhouse complexes. Moreover, these parking spaces are located on the southside of the private road and off the travel portion of the roadway, which is used primarily for vehicular traffic or for motor vehicles to travel on. The off-road parking spaces are demarcated by yellow lines painted on the road surface and are clearly separated from the portion of the roadway used primarily for motor vehicles to travel on in opposing directions by an extended curb at the rear of the off-road parking spaces and a break in the road surface to show the demarcation between the off-road parking spaces and the travel portion of the roadway. This private road shown in the photographs entered as Exhibits do not indicate that it is also used for parking spaces or used for some other purpose, except as a road whose primary purpose is for vehicles to travel on in opposing directions.
[80] Furthermore, the defendant testified that residents of those townhouse complexes had no time restriction in parking in those 5 off-road parking spaces and that only visitors to the townhouse complexes have restrictions on where or for how long they can park on the property of the townhouse complexes.
(m) The location of the off-road parking space on the private property where the defendant said Cst. Wood had supposedly been parked before Cst. Wood had signaled the defendant to stop.
[81] In the photographs marked as Exhibits #4A, #4C, #4D, #4F, #4G and #4H, and the sketch drawn by the defendant entered as Exhibit #6, the defendant had marked the spot where he claims that Cst. Wood had been first parked with a large blue “X”. The spot where the defendant claims that Cst. Wood had been parked was in the most easterly parking space of those 5 off-road parking spaces that are located on the southside of the private roadway, just east of the two masonry walls at the entrance to the townhouse complexes. The defendant had also testified that he had parked his Nissan motor vehicle in one of those 5 off-road parking spaces, but to the west of where he said Cst. Wood’s police cruiser had been parked with its engine running.
[82] The prosecution also contends the defendant’s testimony is not well-founded that Cst. Wood’s police cruiser had been actually parked in one those 5 off-road parking spaces located just east of the two masonry walls, which are situated at the entrance to the property of the townhouse complexes, and that Cst. Wood’s testimony should be relied upon that Cst. Wood had been driving and following directly behind the defendant’s Nissan Altima vehicle that he had observed being driven eastbound on Rexwood Road before it may have driven past the two masonry walls and entered onto the property of the townhouse complexes at 7115 Rexwood Road.
[83] Similarly, if the defendant’s testimony is believed and accepted as to where Cst. Wood had been parked shortly before Cst. Wood had turned on his emergency roof lights to signal the defendant to stop his motor vehicle, then Cst. Wood would have been parked on private property and the entire event in respect to the 5 charges would have occurred on private property.
(n) The location of the off-road parking space on the private property where the defendant said he had supposedly parked his Nissan motor vehicle a day and a half before he had been stopped by Cst. Wood.
[84] The defendant had testified that before he had been stopped by Cst. Wood his Nissan motor vehicle had not been parked in his townhouse’s garage or on the driveway for his townhouse unit, but in one of the 5 off-road parking spaces located just east of the masonry walls at the entrance to the private property. The defendant had also marked the location where he had parked his motor vehicle with an “X2” on the photograph entered as Exhibit #4A and on the sketch he drew and entered as Exhibit #6.
[85] In addition, the defendant had testified that he had parked his Nissan motor vehicle in one of those 5 off-road parking spaces that is situated west of where he had said Cst. Wood’s police cruiser had been parked, and indicated that it was the most westerly of the 5 off-road parking spaces.
[86] However, the prosecution contends the defendant’s testimony that the defendant’s Nissan Altima motor vehicle, as well as Cst. Wood’s police cruiser had been parked in those 5 off-road parking spaces on the private property situated just east of the two masonry walls is not well-founded or reliable. As a result, the prosecution submits that Cst. Wood’s testimony that he had observed the defendant’s Nissan Altima being driven on Rexwood Road should be relied upon.
[87] On the other hand, if the defendant’s testimony is believed and accepted that the defendant’s motor vehicle had been parked in one of the 5 off-road parking spaces just east of the 2 masonry walls at the entrance to the townhouse property and that Cst. Wood had been parked nearby in the same area of the 5 off-road parking spaces where the defendant had parked his vehicle, shortly before Cst. Wood had turned on his emergency roof lights to signal the defendant to stop his motor vehicle after the defendant had just moved his vehicle from that off-road parking space in order to return it to his garage, then Cst. Wood would have been parked on private property and the entire event in respect to the 5 charges would have also occurred on private property.
(o) The faux “DEC 14” validation tag taped onto the rear licence plate of the defendant’s motor vehicle.
[88] Cst. Wood testified to removing the licence plate on the rear of the Nissan motor vehicle that was being driven by the defendant after he had stopped the motor vehicle and investigated the discrepancy between the information he received on his inboard computer that the permit for the motor vehicle in respect to the licence plate number “BNCH540” had expired on February 11, 2013, with the black and white validation sticker attached to the rear licence plate numbered BNCH540 which indicated that the expire of the validation sticker was “DEC 2014”.
[89] In addition, Cst. Wood testified that after he had stopped the Nissan motor vehicle, he took a closer examination of the validation sticker on the rear plate and said that he had noticed that the validation sticker had been taped on, and had believed that it was fraudulent. However, he also said that because he did not have the proper tools and because of how the plate was attached vertically to the motor vehicle, that he did not feel that he could have removed the fraudulent validation sticker without destroying it or damaging it, so he had decided to remove the rear licence plate and take it back to the police station where he could remove the validation sticker properly.
[90] The “DEC 14” validation sticker that had been affixed to the rear licence plate on the defendant’s motor vehicle and entered as Exhibit #1, had been removed by Cst. Wood back at his police station and had then been affixed by Cst. Wood to his notes from the incident involving the defendant’s traffic stop on May 17, 2014.
[91] Furthermore, the tape that had been placed over the top of and holding the wording “DEC 14” on a validation sticker with the number 05548830 is clearly visible and matches the description of the validation tag or sticker described by Cst. Wood in his testimony. In addition, the taped or added on wording of “DEC 14” is not completely straight or in proper alignment vertically with the rest of the validation tag which would also show that the validation tag that had been on the rear licence plate is not authentic, but a fake.
[92] Ergo, the validation sticker taped on the licence plate is fraudulent, since the certified Ministry of Transportation document entered as Exhibit #3 also confirmed that the registration permit for the defendant’s silver-coloured Nissan Altima had expired on February 11, 2013. The expired vehicle permit and the lack of proof of insurance for the Nissan Altima motor vehicle would also be consistent with someone who is unemployed and cannot afford to insure the motor vehicle. Furthermore, the defendant had testified that he had been unemployed during the month of May 2014 at the time he had been stopped by Cst. Wood and that he had also worked at the Walmart in the Malton area of Mississauga and had occasionally worked as a law clerk for a law office, which would potentially mean that the defendant could not afford to insure his motor vehicle. As such, without having proof of valid insurance, the defendant would not have beeb able to obtain or renew the vehicle registration or permit for his motor vehicle or obtain a current validation tag for the rear licence plate.
[93] In addition, the defendant had questioned whether Cst. Wood or someone else had tampered with the validation sticker on his rear licence plate, since other people at the police station may have had access to the defendant’s licence plate. In response to the defendant’s accusation that someone else tampered with the validation sticker, Cst. Wood testified that before he had removed the validation sticker from the defendant’s rear licence plate and attached it to his notes that he had written up for the event with the defendant, Cst. Wood had photocopied the rear licence plate in its original state before he had removed the fraudulent validation sticker. In addition, Cst. Wood said that he had locked his notes and the defendant’s licence plate in his desk’s drawer and believes that no one else would have access to his locked drawer or that anyone else would have a key to his locked drawer, except maybe someone in administration.
(p) Who had placed the fraudulent validation tag on the rear licence plate of the defendant’s Nissan Altima motor vehicle?
[94] When asked if he was responsible for taking care of the Nissan Altima motor vehicle that he owned, the defendant replied no. He then said that when his vehicle had been parked on the road that someone else could have been responsible for placing the fraudulent validation sticker on the rear licence plate of his vehicle, as well as saying that many people, friends, and relatives come and go at his house.
[95] In addition, the defendant testified that he has no idea how that faux validation sticker ended up on his rear licence plate.
[96] However, it is not unreasonable or implausible that someone like the defendant, who is the owner of the Nissan Altima motor vehicle and who does not have full-time employment, would have had the greatest incentive of anyone to carefully photocopy the “DEC 14” part of a validation sticker and to cut, manipulate, and affix it with clear adhesive tape to the rear licence plate, so as to make it appear to be an authentic or valid validation sticker and with the hope that law enforcement officials would view the faux validation sticker from a distance and believe it to be a valid one.
[97] Moreover, the defendant testified that in May of 2014 he was not employed and that his parents would support him financially. His personal financial situation would also support the idea that he had the most incentive of anyone to place the faux validation tag on the rear plate of his motor vehicle.
[98] And, although the defendant claims that his vehicle has not left the private property of the townhouse complexes located at 7115 Rexwood Road and had been either stored in his garage or parked in one of the 5 off-road parking spaces on the private property during May of 2014, this particular testimony would also contradict the need of someone to create a faux validation sticker and place the faux validation sticker on the rear plate of the defendant’s vehicle, so as to make it appear to be authentic, if the defendant’s vehicle is not being used or that it has never been driven off of the private property of the townhouse complexes located at 7115 Rexwood Road.
[99] Furthermore, even though the defendant testified that others had been inside his townhouse or had access to his vehicle when it had been parked outside of his garage in one of the 5 off-road parking spaces on the private property of the townhouse complexes and the necessary implication that someone else could have placed the faux validation on the rear plate of his vehicle when it had been parked outside of his garage in one of the 5 off-road parking spaces on the private property or while it had been stored in his garage as a prank or an act of mischief by an unknown person, it seems implausible and illogical why someone would make the effort to do this act of mischief so elaborately just to make the validation tag appear to be authentic and not expired. Especially, considering that the original tag had been expired since February 11, 2013, 15 months before Cst. Wood had stopped the defendant and that it would be more consistent with the scenario that someone who wished to still drive the uninsured Nissan vehicle on a highway without a currently validated permit would need to fabricate a fraudulent validation tag and affix it to the rear licence plate of the vehicle in order to do so, with the hope it would fool the police in not stopping the vehicle while it was being driven on a public Ontario road.
[100] In addition, in his cross-examination of Cst. Wood, the defendant had raised the possibility that someone else may have accessed Cst. Wood’s desk where Cst. Wood’s notes with the affixed fraudulent validation tag had been stored and could have tampered with that tag while it was in the possession of Cst. Wood. However, the defendant had already been charged with the offence of altering the validation tag and served with a summons for that offence during the traffic stop before Cst. Wood had even locked the fraudulent validation tag in his desk at his police station.
(q) Why had the defendant’s motor vehicle supposedly been parked in one of the 5 off-road parking spaces by the entrance to the private property and not parked in his garage or on the driveway of his townhouse on May 17, 2014?
[101] The defendant had testified that he has not driven his Nissan Altima motor vehicle off the property of the townhouse complexes since he was unemployed to the time he had been stopped by Cst. Woods on May 17, 2014, and that his vehicle was usually parked in the garage of the townhouse that he resides in, or parked in one of the 5 off-road parking spaces located just east of the 2 masonry walls at the entrance to the property of 7115 Rexwood Road, as he had said where his vehicle had been parked on May 17, 2014. He also said that he did not have to drive to get around or to get to his job at Walmart, since he said he would walk there, as the store was located in Malton close by. And, to get to the law office where he said he was clerking he said he would take the bus, since there was a bus stop in front of the townhouse complexes.
[102] In addition, the defendant said he was not employed during the month of May in 2014.
[103] When the defendant was asked in cross-examination where his vehicle was parked in April and May of 2014, the defendant replied that he could not recall. Then when specifically asked if the vehicle had been parked in his townhouse’s garage during those months he replied that he could not recall.
[104] Also, when asked what he had been doing on May 17, 2014, the defendant said that he could not recall since it had been an ordinary day and because it had happened so long ago. However, when he was later asked why his vehicle was not parked in his townhouse’s garage on May 17, 2014, the defendant testified that he may have been cleaning up the garage.
[105] In addition, the defendant later stated that he had actually moved his vehicle out of the garage to one of the 5 off-road parking spaces just east of the two masonry walls on May 16, so that he could put a plastic cover on his deceased grandmother’s wheelchair that was being stored in the garage, and that he had needed to move the vehicle out of the garage so that he would have enough room to accomplish that task.
[106] Then when the defendant was asked why he could not just leave his vehicle parked on the driveway for his townhouse while he was putting the cover on the wheelchair, he replied that he could not simply park his Nissan Altima motor vehicle on his driveway since he contends that his vehicle is too large for his driveway and would not fit on his driveway without its backside being on the road. Therefore, he contends that he had to move his vehicle to one of the 5 off-road parking spaces on the property of the townhouse complexes just east of the 2 masonry walls, so that he could perform the task of putting a cover on the wheelchair that was stored in the garage.
[107] However, when he was then asked why he did not just move his vehicle backed into the garage after he had finished putting the cover on the wheelchair he said that he did not do so because it may have been due to laziness or that he may have forgotten to do so. Later, the defendant said the reason why he did not move his vehicle immediately back into his garage after putting a cover on the wheelchair, he said he had been discombobulated because his grandmother had passed away months earlier, but had been in the process of moving his vehicle back into the garage from the off-road parking space when he was stopped by Cst. Wood at 8:56 p.m. on May 17, one and half days later.
(r) When did the defendant say he had supposedly moved his vehicle out of his garage and parked it on one of the 5 the off-road parking spaces by the entrance to the private property?
[108] Under cross-examination, the defendant testified that he did not move his vehicle out of the garage to put the cover of the wheelchair on the same day as he was stopped by Cst. Wood on May 17, 2014, but believes he had moved the vehicle and parked it in one of the 5 off-road parking spaces on May 16, and had not moved the vehicle backed into the garage at that time, but left it parked in that off-road parking space for a day and a half because it was due to laziness, that he simply forgot, or because he had been discombobulated over the death of his grandmother that had occurred about two months earlier.
(s) What had the defendant been doing just before he got into his motor vehicle supposedly parked in one of the 5 off-road parking spaces and just before he had been stopped by Cst. Wood at 8:56 p.m. on May 17, 2014?
[109] On the night of May 17, 2014, at 8:56 p.m., when the defendant had decided to move his vehicle back into his garage from where he had parked it on May 16 in one of the 5 off-road parking spaces on the property of the townhouse complexes, the defendant said he did not recall what he had been doing that day or at the time just before he got into his car to move the motor vehicle back into his garage, since it had happened a long time ago. He also said that he might have been walking around the neighbourhood just before he went to his vehicle to move it back into his garage.
(t) What direction had the defendant been walking when he supposedly walked to his motor vehicle parked at one of the 5 off-road parking spaces at 8:56 p.m. on May 17, 2014, to move his vehicle back into his garage?
[110] When asked whether he had seen Cst. Wood’s police cruiser parked in one of the off-road parking spaces close to where he said that his own vehicle had been parked, the defendant said that he did see the police cruiser. However, when asked from what direction he had been walking when he went to his vehicle to move his vehicle back into the garage the defendant said that he could not recall.
(u) Cst. Wood does not recall whether there are yellow-coloured speed bumps located on the private road.
[111] Moreover, when cross-examined about the existence of speed bumps on the private road in the property of the townhouse complexes located at 7115 Rexwood Road, Cst. Wood testified that he could not recall or comment on whether there were any speed bumps on the roadway where Cst. Wood had stopped the defendant. Cst. Wood also said that he could not say what the speed limit is for the private roads on that property.
[112] However, the photographs entered as Exhibits #4F and #4J show there are yellow-coloured speed bumps on the private road just east of the 2 masonry walls at the entrance to the property of the townhouse complexes.
[113] In addition, Cst. Wood’s failure to recall the existence of the yellow-coloured speed bumps on the private road or to know what the speed limit is for the private roads, would only establish that he does not have great familiarity with the private roads within the property of the townhouse complexes or that Cst. Wood had indeed conducted the traffic stop on the public roadway known as Rexwood Road that is just west of the speed bumps.
[114] However, Cst. Wood’s lack of recollection of the existence of the speed bumps or not knowing what the speed limit is for the private road is not critical to any determination of credibility or to any other determination that has to be made in this proceeding, considering that Cst. Wood said that he had observed the defendant’s vehicle being driven on Rexwood Road and may have followed the defendant’s Nissan vehicle onto private property and had not been parked in one of the 5 off-road parking spaces located on the private property at 7115 Rexwood Road.
(v) Why did Cst. Wood not have the defendant’s motor vehicle impounded or towed to the defendant’s driveway?
[115] The defendant testified that Cst. Wood had informed the defendant that the defendant’s vehicle would be impounded or towed, since the vehicle did not have insurance and because Cst. Wood had removed the rear licence plate from the defendant’s vehicle, which would not allow the vehicle to be driven on a public roadway. However, when Cst. Wood had been asked why he did not have the vehicle impounded or towed, Cst. Wood responded that he does not recall the reasons why he did not have the defendant’s vehicle towed, but surmised that he might have had pity on the defendant. Cst. Wood also said that he had possibly permitted the defendant to drive the Nissan vehicle to the defendant’s home and may have followed the defendant to that home since the defendant lived close by, but that he did not make note of that it in his notes of the incident with the defendant.
[116] However, based on Exhibits #4A and the sketch drawn by the defendant entered as Exhibit #6, the defendant’s driveway was only 3 or 4 townhouses away from where the defendant had testified to where he had stopped for Cst. Wood or relatively near to where the traffic stop and been conducted if the stop had been conducted on Rexwood Road west of the 2 masonry walls, which could be also be another reason why Cst. Wood had allowed the defendant to drive his motor vehicle back to the defendant’s townhouse without having it impounded or towed, since it would have been approximately 150 to 300 meters from where Cst. Wood could have stopped the defendant.
(w) Defendant’s testimony that conflicts with Cst. Wood’s testimony.
[117] There are several events or circumstances that are disputed by the defendant and the prosecution. They are the following:
(1) Cst. Wood said he had observed the defendant driving his Nissan Altima motor vehicle on a public highway
[118] Cst. Wood testified to observing the defendant’s Nissan Altima being driven eastbound on Rexwood Road, which is a public highway, near the intersection between Rexwood Road and Netherbrae Road. Cst. Wood also said he had been following the defendant’s vehicle for a period between 30 seconds and a minute. Also, Cst. Wood said that where he had stopped the Nissan Altima there had been yellow lines painted on the main part of that road that had separated the road into lanes for opposing traffic. In addition, Cst. Wood said that he might have followed the defendant’s Nissan Altima motor vehicle onto private property after he had observed it being driven on Rexwood Road.
[119] On the other hand, the defendant testified that he had not driven his vehicle off the private property on May 17, 2014, and had only been moving his Nissan Altima from where he had parked it at one of the 5 off-road parking spaces located just east of the 2 masonry walls at the entrance to the private property in order to drive it back into his garage, and that Cst. Wood had also been parked nearby in one of those 5 off-road parking spaces before Cst. Wood had turned on his emergency roof lights to signal the defendant to stop his vehicle. The defendant also said that the area where both Cst Wood’s and his vehicle had been parked, as well as where he had stopped his vehicle for Cst. Wood had been on private property.
(2) the defendant said he had not been driven his motor vehicle off the private property on May 17, 2014
[120] The defendant claims that his Nissan Altima motor vehicle had not been driven off the property located at 7115 Rexwood Road at all on May 17, 2014, and that at all material times the vehicle had been operated only on private property. Moreover, the defendant testified that everything involving him and Cst Wood had occurred only on private property.
[121] And, while his motor vehicle was always on private property, the defendant said he had only driven 150 to 200 meters on the private road before he had been stopped by Cst. Wood, and had not been driving at all on a public highway.
(3) the defendant said that Cst. Wood had also been parked in one of those 5 off-road parking spaces on the private property before Cst. Wood had turned on his emergency lights to stop the defendant’s motor vehicle.
[122] At the moment Cst. Wood had first observed the defendant, the defendant said he had been just moving his Nissan Altima motor vehicle from where it had been parked in one of the 5 off-road parking spaces on private property back to the garage of the townhouse where the defendant resides.
[123] Furthermore, the defendant had testified that Cst. Wood had actually been parked in the last or most easterly parking space of one of those 5 off-road parking spaces, which was on the private property known as Peel Condominium Corporation No. 631 located at 7115 Rexwood Road in the City of Mississauga. The defendant also said that Cst. Wood had been parked in this area of the private property with his engine running just before the defendant got into his vehicle in order to move it back into the defendant’s garage and that the defendant’s vehicle had also been parked in one of those 5 off-road parking spaces that was also near to where Cst. Wood’s police cruiser had been parked. The defendant also said that he had observed the police cruiser parked there when he got into his own vehicle.
[124] In addition, the defendant marked a large “X” on the photographs entered as Exhibits #4A, #4C, #4D, #4F, #4G, #4H and #6, to indicate the spot where he had observed Cst. Wood’s police cruiser parked just before Cst. Wood had signaled the defendant to stop on the private road.
[125] Cst. Wood, on the other hand, denied being parked in one of those 5 off-road parking spaces located just east of the two masonry walls, but that he may have followed the defendant onto private property after he had observed the defendant’s Nissan Altima motor vehicle being driven eastbound on a public highway named Rexwood Road on May 17, 2014, at 8:56 p.m.
- ANALYSIS AND DECISION
[126] To establish that Cst. Wood had only stopped the defendant on account of being racially profiled, the defendant argues that Cst. Wood did not have identifiable grounds or legal cause for stopping the defendant’s motor vehicle in respect to any H.T.A. offence, as the defendant avows that the entire event between the defendant and Cst. Wood had occurred completely on private property. And, because of the defendant’s argument that H.T.A. does not apply to private property, then the defendant contends that Cst. Wood would not have had a legitimate reason to stop and investigate the defendant or his motor vehicle when the vehicle had not been driven by the defendant on a public highway at any time on May 17, 2014, and had only been driven on private property when the defendant had been made to stop. As such, this unwarranted and groundless stop, argues the defendant, would then clearly establish that the only reason for why Cst. Wood had stopped and investigated the defendant while he had been operating a motor vehicle on private property at all material times had been because Cst. Wood had “racially profiled” the defendant.
[127] And, because the defendant is a person of brown skin, and because Cst. Wood is white police officer whose menacing appearance resembles a “skinhead” and who has demonstrated having superiority tendencies, which had been manifested by Cst. Wood’s aggressive behavior towards the defendant when Cst Wood had approached his vehicle at the traffic stop and during the traffic stop and by threatening to have his vehicle impounded or towed and by Cst. Wood’s entering a description of the defendant as being “South Asian” on the Prosecution Sheet (Exhibit #7) when Cst. Wood had not ever asked the defendant what his race was, the defendant contends that these circumstances show that Cst. Wood was racially biased towards the defendant. Therefore, as result of Cst. Wood’s bias towards him and the absence of reasonable and probable grounds for stopping the defendant’s motor vehicle being operated on private property for an H.T.A. offence, the defendant contends that Cst. Wood has violated the defendant’s Charter rights guaranteed under ss. 7, 8, 9, and 15. And, as a consequence of these Charter violations, the defendant seeks as a remedy under ss. 24(1) and 24(2) of the Charter, either an order from the court to stay the proceedings or an order to exclude the testimony of Cst. Wood and of the evidence that had been gathered or seized by Cst. Wood during the uncalled-for traffic stop of May 17, 2014.
[128] Furthermore, as in any application claiming that a Charter right has been infringed, the party contending that there has been an infringement has the legal and evidential burden to prove there has been an infringement on a balance of probabilities. Consequently, if it is found that the defendant’s Charter rights have been infringed on a balance of probabilities, but which are held not to be a reasonable limit of those rights that are demonstrably justified under s. 1 of the Charter, then it will have to be determined what the appropriate remedy, if any, should be granted under s. 24 of the Charter. And, if it is necessary to decide whether Cst. Wood’s testimony or any evidence obtained by Cst. Wood during the impugned traffic stop should be excluded or admitted, then the test set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, for the exclusion or inclusion of evidence under s. 24(2) will have to be considered. However, if the defendant fails to prove there has been a Charter infringement of the defendant’s rights under ss. 7, 8, 9, and 15, then the Charter application will be dismissed and it will then have to be determined whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the five traffic offences.
[129] Accordingly, the defendant’s Charter application will have to be considered first before considering whether the prosecution has proven the defendant committed the 5 charges beyond a reason doubt. And, if the defendant proves on a balance of probabilities that one of his Charter rights has been infringed which is not demonstrably justified under s. 1, then an appropriate remedy will have to be fashioned under s. 24(1) or s. 24(2).
(A) WERE THE DEFENDANT’S CHARTER RIGHTS VIOLATED?
[130] The defendant claims that Cst. Wood did not have reasonable and probable grounds to stop the defendant’s motor vehicle for any H.T.A. offence, as the defendant’s motor vehicle had been operated on private property at all material times, and that the only reason he had been stopped and investigated was that Cst. Wood had racially profiled him, since the H.T.A. does not apply to private property. As such, the defendant contends that his rights under ss. 7, 8, 9, and 15 of the Charter were violated by Cst. Wood on May 17, 2014, and that as an appropriate remedy for these violations his 5 regulatory charges should be either stayed under s. 24(1) or that Cst. Wood’s testimony or the evidence he had obtained and seized during the traffic stop be excluded under s. 24(2).
[131] To begin with, the defendant claims that his right not to be arbitrarily detained under s. 9 of the Charter had been violated by Cst. Wood. Specifically, the defendant contends that since the defendant had been operating his motor vehicle on private property at all relevant times on May 17, 2014, Cst. Wood would not or could not have had reasonable and probable grounds to stop or to investigate the defendant or the defendant’s motor vehicle for any H.T.A. offence, since the H.T.A. does not apply to vehicles being operated solely on private property. Ergo, the defendant argues that since Cst. Wood did not have a lawful reason to stop and investigate the defendant’s motor vehicle being operated on private property in respect to any H.T.A. offence, then the only reason why he had been unlawfully and arbitrarily detained by Cst. Wood had been due to Cst. Wood racially profiling him on account of his brown skin, which would be a violation of his s. 9 rights not to be arbitrarily detained. Section 9 of the Charter guarantees that:
- Everyone has the right not to be arbitrarily detained or imprisoned.
[132] And, because the defendant contends that Cst. Wood had unlawfully and arbitrarily detained him, then the defendant argues that any evidence that Cst. Wood had obtained during that unlawful traffic stop had infringed on the defendant’s right to be secure from unreasonable search and seizure under s. 8, so that all evidence obtained and seized by Cst. Wood during the unlawful traffic stop should be excluded under s. 24(2) of the Charter as an appropriate remedy for the infringement of his ss. 8 and 9 rights. Moreover, the defendant argues that to allow into evidence information that had been obtained as a result of these Charter violations would render the trial unfair and thus bring the administration of justice into disrepute. Section 8 of the Charter guarantees that:
- Everyone has the right to be secure against unreasonable search or seizure.
[133] Furthermore, in respect to his claim that his s. 7 rights had been violated, the defendant did not clearly explain why and how his s. 7 rights under the Charter had been infringed, except that the defendant in his Notice of Constitutional Question had submitted that the grounds for why his s. 7 rights had been infringed had been because his ss. 8, 9, and 15 rights had been breached.
[134] Section 7 guarantees the defendant’s right to liberty and to be secure and the right not to be deprived thereof except in accordance with the principles of fundamental justice:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[135] In addition, the defendant contends that because Cst. Wood had racially profiled him, then his rights under s. 15 of the Charter had also been infringed by Cst. Wood. In other words, the defendant claims that Cst. Wood had discriminated against the defendant because of his skin colour and ethnicity. Section 15 guarantees the defendant’s right to the equal protection and equal benefit of the law without discrimination:
- Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[136] More importantly, if it is determined that the defendant has proven on a balance of probabilities that any of his rights under ss. 7, 8, 9, and 15 of the Charter had been infringed, which is not demonstrably justified under s. 1, then the defendant seeks an appropriate remedy under s. 24 of the Charter. Sections 1 and 24 of the Charter provide that:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
…
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[137] However, before considering whether the defendant’s Charter rights under ss. 7, 8, 9, and 15 have been infringed, the notice requirements under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, have to be first complied with by the defendant before any remedy can be granted for any infringement of the defendant’s rights guaranteed under the Charter.
(1) Has The Defendant Complied With Giving Notice Of The Charter Application To The Attorney-Generals Of Canada and Ontario Under s. 109 Of The Courts Of Justice Act?
[138] Under s. 109(1) of the Courts of Justice Act, the defendant is legally required to serve a Notice of Constitutional Question on both the Attorney General for Canada and the Attorney General for Ontario if the defendant is claiming a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario. And, if the defendant fails to give such notice then the remedy that the defendant seeks for the supposed Charter violations cannot be granted by the trial court [emphasis is mine below]:
Notice of constitutional question
109(1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:
The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.
Failure to give notice
(2) If a party fails to give notice in accordance with this section, the Act, regulation,