Ontario Court of Justice
Date: November 23, 2016
Court File No.: Toronto
Between:
HER MAJESTY THE QUEEN (Respondent)
— AND —
DERESH SATHIALINGAM (Appellant)
Before: Justice Nakatsuru
Heard on: October 27, 2016
Reasons for Judgment released on: November 23, 2016
Counsel
R. Patterson — counsel for the Respondent
P. Balram — paralegal for the Appellant
NAKATSURU J.:
[1] Introduction
[1] The appellant appeals his convictions for speeding and failing to surrender the permit of his motor vehicle contrary to ss. 128 and 7(5)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and failing to surrender his insurance card contrary to s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.
[2] The appellant was convicted by His Worship Justice of the Peace Devine on March 23, 2015. The appellant represented himself. A number of his complaints relate to the fairness of his trial.
[3] For the following reasons, I allow the appeal of the convictions for failing to surrender his permit and his insurance card. I order acquittals be entered. I dismiss his appeal of the speeding conviction.
A. Failure to Surrender His Permit and Insurance Card
Facts
[4] The evidence on this issue is undisputed. P.C. Scott Hampson testified that on September 28, 2014, he pulled the appellant over for speeding. He asked the appellant for his driver's licence, permit, and his insurance. The music was loud in the car. The appellant was on his phone. The appellant handed over his valid driver's licence. But he was unable to produce his permit and insurance. P.C. Hampson told the appellant that if he located these documents, to bring them back to his scout car or else he would get tickets. The officer returned to his scout car. He ran some checks and then issued the tickets. It took him about seven minutes to complete the work. P.C. Hampson then returned to the car where the music was still very loud. At this time, the appellant surrendered the insurance card and permit. P.C. Hampson advised the appellant that he had already issued these tickets and that he could not just rip them up.
[5] The appellant testified that he asked the officer to give him a minute when the documents were demanded because he had to call his brother to find them. He had forgotten where they were. He had checked the consoles but had missed them in the middle console. He retrieved the documents after he called his brother. The appellant testified that the officer had walked off before then. The appellant testified "with all the police brutality that's happening in the world, and all the things I've been, encounter with my friends getting pulled over, I was always told to remain in the car, so I did not have to step out. So I kept my thing and he came back with three tickets."
[6] It was with some reluctance that the justice of the peace convicted the appellant of the charges pertaining to his failure to surrender the permit and insurance card. He recognized that it was open for him to consider all the particular circumstances on the issue of whether the Crown had proven the offences. He held that there were no specific time limit by which a driver had to produce the documents. The justice of the peace found there was not a lot of conflict in the evidence on these two counts. He found that the officer had given the appellant a reasonable opportunity to surrender the documents by advising him to bring them to the cruiser or risk being ticketed. He found that this was a reasonable act on the part of the officer. He found the appellant's explanation as to why it took him so long to find the documents and why he did not walk them to the officer was not a reasonable one. From my review of the reasons, the justice of peace did not reject the credibility of the appellant on this point. Rather the explanation the appellant offered in his evidence was not in the justice of the peace's view an adequate one.
Standard of Review
[7] In my opinion, based upon these facts, the convictions were not reasonable and they should be quashed. This appeal is a review pursuant to s. 136(2) of the Provincial Offences Act R.S.O. 1990, c. P. 33. While my jurisdiction is not unlimited, this is a broad review to reconsider the proceedings below: see R. v. Anderson, [1985] O.J. No. 608 (H.C.).
Statutory Interpretation
[8] Let me set out the appropriate sections of the relevant legislation. Section 3(1) of the Compulsory Automobile Insurance Act states:
- (1) An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,
(a) an insurance card for the motor vehicle; or
(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,
and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer
[9] Section 7(5) of the Highway Traffic Act is similar:
(5) Subject to subsection (6), every driver of a motor vehicle on a highway shall carry,
(a) the permit for it or a true copy thereof; and
(b) where the motor vehicle is drawing a trailer, the permit for the trailer or a true copy thereof,
and shall surrender the permits or copies for inspection upon the demand of a police officer.
[10] There is no issue that P.C. Hampson made a demand within the meaning of both sections. While there is a difference between the sections in that "reasonable" qualifies the inspection of insurance cards and not permits, this is not a material difference on this appeal. What is at issue is the interpretation of the phrase "shall surrender" the relevant documents. Failure to surrender the insurance card or permit upon demand constitutes the actus reus of the offence.
Purpose of the Legislation
[11] Let me begin with the purposes of the relevant legislation. The purpose of the Compulsory Automobile Insurance Act is to require universal insurance coverage to protect victims of automobile accidents by ensuring adequate compensation for harm or property damage suffered: see Matheson et al v. Lewis et al (2014), 2014 ONCA 542, 121 O.R. (3d) 641 (C.A.) at paras. 36-37; R. v. Zwicker (1994), 17 O.R. (3d) 171 (C.A.). Section 3 provides a mechanism for the enforcement of this worthy objective: see R. v. Hufsky, [1988] 1 S.C.R. 621. Likewise the Highway Traffic Act imposes a collection of duties and obligations on drivers in relation to the operation of vehicles to ensure the safety of motorists and others. Section 7 is also an enforcement mechanism for the system of permits established for motor vehicles: see R. v. Plummer (2006), 83 O.R. (3d) 528 (C.A.) at para. 38.
Interpretation of "Shall Surrender"
[12] I agree with the justice of the peace that a driver does not have to surrender the documents immediately to avoid committing these offences. Such a narrow interpretation is not required to further the objectives of the sections. That being said, this process of demand and production of the documents was not intended by the legislature to be a long or complicated one. The legislation requires the driver to have the insurance card and permit or a true copy immediately at hand in order to produce them upon demand. This can be compared with s. 33 of the Highway Traffic Act which deals with producing one's driver's licence upon demand. That section contemplates a circumstance where the operator does not have a driver's licence on them whereby the driver is permitted to provide reasonable identification as an alternative. Treating an insurance card or permit differently makes sense especially for the insurance card because in the event of an accident, the driver must provide particulars of the insurance to others involved at the scene. In addition, a driver subject to this demand is usually being detained by the police at the roadside. In these circumstances, the legislature must have intended these interactions to be relatively brief.
[13] Nevertheless these sections have no language circumscribing the length of time that can pass before the driver must produce these documents. For instance, there is no requirement that the driver surrender them "immediately" or "forthwith". Although in a different context, I am reminded about the considerable jurisprudence surrounding the "forthwith" requirement under s. 254(2)(b) of the Criminal Code where the police can demand that a driver provide "forthwith" a sample of his breath to an approved screening device to test for alcohol in their body. While there is a more stringent immediacy requirement with the term "forthwith", the courts have interpreted it to allow flexibility depending on the circumstances: see R. v. Quansah (2012), 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont. C.A.). On the requirement that the detainee comply with demand forthwith, depending on the facts of the individual case, compliance is not required immediately but within a reasonable time. A detainee may refuse initially and then change their mind without falling afoul of the section: see R. v. Mandryk (2102), 2012 ONSC 3964, 291 C.C.C. (3d) 182 (Ont. S.C.J.); R. v. Brotton (1983), 24 M.V.R 76 (Sask. C.A.); R. v. Cunningham (1989), 1989 ABCA 163, 49 C.C.C. (3d) 521 (Alt. C.A.). Thus, even when the legislature uses an express term such as "forthwith", as the case law abundantly demonstrates, some delay can be tolerated depending on the particular circumstances of the case.
[14] Equally it is entirely reasonable and foreseeable that a driver may encounter difficulty in producing an insurance card and/or permit. Many individuals who drive motor vehicles may not be the registered owner or the purchaser of the insurance. Family members, friends, and employees of the owner are but a few examples. These individuals may not know where in the vehicle the documents are kept. Depending on the vehicle and the state of its interior, finding these documents may take some time. In my opinion, when the driver ultimately does surrender the documents during the stop, one should not be hasty in jumping to the conclusion that the length of time in producing them was too long when the sections do not require them to be surrendered "forthwith" or "immediately". It does not defeat the objectives of the legislation if a flexible approach is taken.
Application to the Facts
[15] In the case at bar, I am of the view that the justice of the peace took the right approach to the question. However, he erred in coming to the conclusion that he did. The verdicts were unreasonable and cannot be sustained for the following reasons:
When the demand was made, the appellant did not outright refuse to produce them. He provided his driver's licence that he had on him. However, he had to search for the insurance card and permit. It seems he was unfamiliar with the vehicle or had forgotten where the documents were. He did conduct a search and just missed them when he looked in the middle console. He telephoned his brother for his help. This is not a case where the driver has decided to surrender the documents at a time of his own choosing: see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205. He made efforts to locate them in a timely fashion. The justice of the peace was concerned that a driver should not be permitted to surrender these documents at a time of his choosing for example thirty minutes after the demand. I agree that this would defeat the objectives of the legislation. However, this is not what occurred in this case.
The appellant actually did surrender his documents. According to P.C. Hampson, this happened 7 minutes later. Further, the appellant found his documents even before the officer had returned to his car. The interval of time between demand and eventual surrender was not inordinately long. It could also have been shorter had the officer remained proximate to the car while the appellant searched.
The police officer had instructed the appellant to bring the documents back to the car if he found them. The appellant did not do so. It seems that the officer in laying these charges was under the belief that once he had written the tickets he could not or would not "rip" them up. The officer was not truly acting on any subjective or objective belief that the appellant had committed an offence after the documents were produced. There was another scenario that could have been reasonably played out at the roadside. After completing his checks and writing out the speeding ticket, P.C. Hampson could have returned to the appellant's car and have inquired if he had found the documents. The appellant would have provided them and nothing further would have been required. Alternatively, if P.C. Hampson had written out the tickets for failing to surrender the documents, he should have not have delivered the certificates of offence to the appellant once the requisite documents were surrendered.
[16] I find that no reasonable trier properly instructed could have concluded that the Crown had proven beyond a reasonable doubt the actus reus of these two offences. The appellant surrendered his permit and insurance card as required by the sections.
Classification as Strict Liability Offences
[17] There is another reason why the convictions for these two offences cannot stand. I am of the view that these two offences are strict liability offences: see R. v. Sault Saint Marie, [1978] 2 S.C.R. 1299 at para. 60. It is my understanding that there are no binding authorities on this point. Trial level decisions have gone either way, strict or absolute liability. Most have held that the offences are strict liability: see for the offence of failure to surrender a permit R. v. Ko, [2013] O.J. No. 3826 (C.J.); R. v. Sirianni (2010), 12 M.V.R. (6th) 306 (C.J.); see for the offence of failure to surrender an insurance card R. v. Gray-Rock, [2015] O.J. No. 5730 (C.J.); R. v. Correia, [2015] O.J. No. 2705 (C.J.); R. v. Rambisoon, [2005] O.J. No. 3554 (C.J.).
[18] The starting point of the analysis is that both offences are public welfare offences and the presumption is that they are strict liability offences. In Lévis v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420 the Supreme Court of Canada held that the offences of drive without a licence and drive motor vehicle without paying registration fees were strict liability offences. LeBel J. said the following generally about the classification of regulatory offences (at para. 16-17):
Classifying the offence in one of the three categories now recognized in case law becomes a question of statutory interpretation. Dickson J. noted that regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences. As a general rule, in accordance with the common law rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belong in the intermediate category ...
Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself:
On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations. ...
[19] LeBel J. in a brief analysis of the provisions quickly came to the conclusion that the offences were strict liability offences. He said the following about the offence of drive without a licence (at para. 29):
Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence. The provision in no way places the burden of proving mens rea on the prosecution. Nor does it include any expression of the legislature's intent to create an absolute liability offence. Furthermore, such an intent cannot be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers' licences without it being necessary to deprive an accused of a due diligence defence. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence.
[20] I further find the case of R. v. Kanda (2008), 2008 ONCA 22, 88 O.R. (3d) 732 (C.A.) and the analysis conducted therein to be most helpful. The issue in that case was whether the offence of driving a car with a child not properly belted contrary to the Highway Traffic Act was a strict or absolute liability offence. Justice MacPherson held that given that the Highway Traffic Act's regulatory scheme has absolute liability, strict liability, and full mens rea offences, consideration of the overall regulatory pattern was neutral. The subject matter which was to ensure the safety of vulnerable young passengers was important. That being said, classification of the offence as strict liability struck the right balance between encouraging drivers to be vigilant about the safety of child passengers and not punishing those who exercised due diligence in ensuring this. The penalty which was only a fine and not imprisonment supported absolute liability. Finally while the language of the provision was mandatory using "shall", MacPherson J.A. was not convinced that this evinced a legislative intention to make the offence absolute especially where it chose not to expressly exclude a due diligence defence. The Court concluded that the strong presumption in favour of strict liability had not been rebutted.
[21] In my opinion the same type of analysis also follows when it comes to s. 3(1) of the Compulsory Automobile Insurance Act and s. 7(5) of the Highway Traffic Act. Consideration of the regulatory pattern is neutral. Varying types of offences are created within. Indeed, within the Compulsory Automobile Insurance Act there are administrative penalties. The subject-matter is important as noted by the objectives that I have already referred to. However, as MacPherson J.A. held, strict liability strikes the right balance between ensuring drivers carry these documents and not punishing duly diligent drivers. Indeed I would go so far as to say that ensuring drivers be vigilant in having the proper documents in their vehicles is not as important as the safety of young children. Furthermore, it is entirely foreseeable that diligent drivers may not have the documents immediately at hand. Just as an example, some other person may have taken them out of the car without the knowledge or concurrence of the driver and have failed to return them. The third consideration is the importance of the penalty. The penalties are fines and not imprisonment: see s. 214(1) of the Highway Traffic Act the general penalty provision which imposes a fine of $60 to $500 and s. 3(3) of the Compulsory Automobile Insurance Act which punishes the offence with a fine up to $400. Finally, the language in both sections are mandatory but the legislature did not exclude any defence of due diligence. Looking at these various factors, I conclude that the presumption in favour of strict liability has not been displaced for these two public welfare offences. In my view, strict liability does not make these offences impracticable to enforce. Individuals are required to have the documents at hand in their vehicles and surrender them within a reasonable time and in a reasonable manner. When the documents are not surrendered, that is all the prosecutor needs to prove at trial. If there is a circumstance uniquely within the knowledge of the accused whereby that individual can prove that they should not be convicted, they should not be denied an opportunity to do so.
Due Diligence Defence
[22] The facts of this case illustrate why a defence of due diligence should be permitted. The justice of the peace made no reference to whether this defence was made out. In this case, the appellant was unrepresented. This issue should have been canvassed at trial. Given the expansive nature of this review, I am of the opinion that the appellant has shown on a balance of probabilities that he was duly diligent for the following reasons:
The appellant did look for his documents. He testified that he had inadvertently missed them when he looked in the middle console. He was not satisfied with this. He called his brother for his help. He then found the documents. This was completed within the 7 minutes the police officer took to complete his checks and write the tickets. I cannot see what more the appellant could have done to find his documents. He was ultimately successful in his search and he did produce them to the officer when the officer returned to his car.
It seems that the justice of the peace found fault with the appellant's decision not to walk the documents back to the police cruiser as the officer requested. This fact needs to be analyzed carefully. It could be argued that the appellant's failure to do so should deprive him of the defence of due diligence. After careful consideration, I find it should not.
Firstly, the appellant's explanation was not fully developed in his evidence. His explanation was brief and imperfectly communicated. It was also very apparent that probably due to his youth, character, and emotional state, he was not his own best advocate. But he was unrepresented. Greater assistance should have been offered to him to develop the reason why he did not follow the officer's request.
Secondly, I believe that one must be sensitive to the appellant's lived experience with law enforcement. He is a young brown man from a racialized minority. In essence, he testified that he was concerned about his own safety in deciding not to leave the security of his own motor vehicle. On its surface, the officer's request that the appellant walk back to the cruiser if he should find his permit and insurance card seems reasonable if not mundane. However, the appellant's belief based upon information from his friends, his own past contacts with law enforcement, and public coverage about instances of police brutality should not be simply discounted. In determining whether the appellant acted prudently, diligently, and reasonably, he should not be held to some objective standard that is infused with stereotypes and founded on a type of privilege only shared by the members of the dominant majority in Canadian society who have never experienced any fear or anxiety in their dealings with the police due to their racial or cultural difference. In my opinion, the appellant's decision to wait in his car after he found his documents, when viewed through a diverse multi-cultural lens, makes sense.
[23] I find for these reasons as well that the appeal of these two convictions should be allowed and acquittals entered.
B. The Speeding Conviction
[24] I find there is no merit to the appellant's argument that he was denied a fair trial or that there is anything wrong with this conviction. Much of the argument on this ground of appeal centered around whether the justice of the peace provided sufficient assistance to the appellant about the use of the video from the in-car camera of P.C. Hampson's cruiser. I find that the justice of the peace was fair and offered help the unrepresented appellant. The video had been disclosed. The prosecutor said that she was not going to introduce it as a part of her case. However, she had it ready to go in her computer if the appellant wanted to introduce the evidence. This was all explained repeatedly by the justice of the peace to the appellant. The appellant's main point at trial was that the video did not capture any information from the radar device as to his speed. He pointed this out to the justice of the peace on the monitor that was set up in court. The appellant eventually decided that he did not want to play the video for the court. In my opinion, the appellant was fairly treated, his right to play the video was patiently explained to him, and the video itself neither advanced the prosecution or the defence case.
[25] I have also reviewed the reasons given for the conviction and have assessed the reasonableness of it. The justice of the peace accepted the evidence of the police officer and the radar device. The accuracy of the device was not challenged. There was confirmatory evidence from both the officer and the appellant that he had driven faster and sped past a group of vehicles that were travelling in the same direction. In conclusion, I see no merit to this ground of appeal. The appeal as to conviction for the speeding offence is dismissed.
Released: November 23, 2016
Signed: "Justice S. Nakatsuru"