R. v. Osman

Court Information

Citation: 2016 ONCJ 85

Court: Ontario Court of Justice, Brampton, Ontario

Judge: Quon J.P.

Trial Date: November 3, 2015

Judgment Released: February 12, 2016

Parties

Prosecutor: Her Majesty The Queen In Right Of Ontario

Counsel for Prosecutor: A. Drahovzal

Defendant: Abdi Osman

Defendant's Representation: Self-represented

Charges

The defendant was charged with four offences under the Highway Traffic Act, R.S.O. 1990, c. H.8:

Section 53(1) – Driving while driver's licence suspended
Section 36 – Using driver's licence from another jurisdiction while Ontario driver's licence suspended
Section 35(1)(e) – Possessing more than one driver's licence
Section 78.1(1) – Driving with hand-held communication device

Background

When it involves driving offences, whatever happens out of province doesn't necessarily stay out of province. This is because information about convictions and unpaid fines for particular driving offences originating from Ontario are by agreement supposedly shared with other provinces and territories in Canada, so as to ensure that out-of-province motorists who commit driving offences in Ontario cannot escape their legal and financial responsibilities under the law of Ontario. The obligation to share information about motorists stems from the interprovincial and territorial agreement called the "Canadian Driver Licence Compact", to which the province of Ontario is a party. Moreover, the sharing of information by various provincial or territorial jurisdictions under this compact aims to keep highways safe by preventing bad drivers from renewing or obtaining driver's licences. It was also implemented to ensure that motorists residing in one province or territory who have been issued a driver's licence from that jurisdiction will not leave their fines incurred in other jurisdictions outside of their province or territory of residence or jurisdiction where they are licenced from going unpaid, by having the provinces and territories who are signatories to the interprovincial compact agreeing to not issue or renew a driver's licence to those motorists who shirk or malinger in paying off their fines, until such time that those fines have been paid.

[2] The Defendant's Circumstances

In the present case, Abdi Osman ("the defendant"), a professional truck driver and a resident of Fort McMurray, Alberta, had been charged on November 26, 2014, with committing 4 Ontario Highway Traffic Act offences while operating his sister's motor vehicle in the City of Mississauga. When the defendant was stopped and charged with the 4 offences, the defendant had used and identified himself with a valid Alberta driver's licence. However, even though the defendant had been driving with an Alberta driver's licence, he had been charged nonetheless with the offence of "driving while his Ontario driver's licence had been suspended". This had been due to the defendant at one time having an Ontario driver's licence when he was formerly a resident of Ontario, but who had given up that licence when he had moved to Alberta in 2009.

[3] The Traffic Stop and Investigation

On that November 26th date, the defendant had been stopped and investigated after Peel Regional Police Officer Jamshidi had observed the defendant at 2:07 p.m. driving a motor vehicle on Meyerside Drive in the City of Mississauga while holding a hand-held communication device. After completing his investigation, Officer Jamshidi then charged the defendant with committing the following 4 offences under the Highway Traffic Act, R.S.O. 1990, c. H.8 ("H.T.A."):

Driving while under suspension, contrary to s. 53
Driving under a driver's licence issued by another jurisdiction while suspended in Ontario, contrary to s. 36
Unlawfully retaining in his possession more than one driver's licence, contrary to s. 35(1)(e)
Driving while using a hand-held communication device, contrary to s. 78.1(1)

[4] The Licence Exchange

Coincidentally, what is peculiar about this case is that the defendant had exchanged his class "AZ" Ontario driver's licence for an equivalent class 1 Alberta driver's licence when he had become a resident of Alberta in 2009. In order to obtain that Alberta licence, the defendant had to physically surrender his Ontario driver's licence on September 28, 2009, as required by the Alberta Traffic Safety Act, to the Alberta Ministry responsible for licensing drivers in Alberta, before he could be legally issued an Alberta driver's licence in exchange. When he had surrendered his Ontario licence for the Alberta licence, the Ontario Ministry of Transportation had also cancelled his Ontario driver's licence on the same day of September 28, 2009 (see Exhibit #2). Officer Jamshidi also did not find the defendant in the possession of an Ontario driver's licence during the November 26th traffic stop, nor had the officer seized an Ontario licence at that time from the defendant.

[5] The Defendant's Move to Alberta

In addition, the defendant had decided sometime prior to August of 2009 to move out west to Alberta to find work in the oil industry or in Alberta's once booming economy. But, before his planned move, the defendant had been a resident of Toronto, Ontario, and had resided at the Toronto address of 2560 St. Clair Avenue West for 8 years. In preparing for his move to Alberta, the defendant had testified that a month before he had moved away from Toronto to take up residence in Alberta he had gone to the courthouse on Queen Street in the City of Toronto, in order to inquire about and to pay off all his outstanding parking tickets and any outstanding fines. After he had purportedly paid off his parking tickets and outstanding fines, he said he had believed at this point that he had no demerit points or any outstanding fines; otherwise, as he contends, he would not have been able to get an Alberta driver's licence. Furthermore, in spite of the cancellation of the defendant's Ontario drivers licence by Ontario's Ministry of Transportation on September 28, 2009, the Registrar of Motor Vehicles for the Ministry of Transportation nonetheless suspended the defendant's Ontario driver's licence on February 12, 2010, for defaulting in the payment of fines (see Exhibit #1).

[6] Discovery of the Suspension

However, once he had been told about the suspension, the defendant testified that he had looked into it and discovered that the unpaid fines had been related to 2 tickets he had received in 2007 and 2008, in which the tickets' fines had together totalled approximately $267. He then said he had paid off those fines and the $150 reinstatement fee in January of 2015, so that his Ontario licence would no longer be under suspension and to also prevent being charged in the future with the offence of driving while under suspension every time he was in Ontario operating a motor vehicle. In addition, the defendant surmises that he may have been convicted of those two tickets after he had already been residing in Alberta.

[7] The Defendant's Defence

In his defence to the three charges related to the suspension of his Ontario driver's licence, which are set in in counts #1, #2, and #3, the defendant contends that he had not received actual notice of the suspension, nor did he have knowledge of or been made aware that his Ontario driver's licence had been suspended, since the suspension had come into effect on February 12, 2010, after he had already been living in Alberta and using an Alberta driver's licence, and after he had already surrendered his Ontario licence to the Alberta Ministry responsible for issuing driver's licences, as well as after his Ontario licence had already been cancelled by the Ontario Ministry on September 28, 2009. Furthermore, the defendant contends that he had only become aware of his already-cancelled Ontario driver's licence being suspended when stopped and informed of such by Officer Jamshidi on November 26, 2014. The defendant also contends that he had no knowledge of or been made aware that his Ontario licence had been suspended effective February 12, 2010, since he had been able to renew his Alberta driver's licence 3 to 4 times without any problem after he had obtained his Alberta licence and without being told by the Alberta Ministry that he could not renew his Alberta licence because his Ontario licence had been suspended for unpaid fines. And, even though the defendant had not arranged with Canada Post to have his mail forwarded or redirected to another address before he had moved to Alberta, nor had he provided the Ontario Ministry of Transportation with his new Alberta address, the defendant contends that the Ontario Ministry would or should have received his new Alberta address from the Alberta Ministry when he had surrendered his Ontario driver's licence to them in exchange for the Alberta driver's licence back in 2009.

[8] The Prosecution's Position

In addition, the defendant submits that he should not be found guilty of committing either the offence in count #1 of driving while under suspension or the offence in count #2 of driving with a licence from another jurisdiction while his Ontario driver's licence had been suspended, since he had not been notified or been aware that his Ontario licence had been suspended, as he had honestly believed that he had paid off all his parking tickets and outstanding fines before he left Ontario and because he had been able to obtain and renew his Alberta driver's licence 3 or 4 times after obtaining his Alberta licence, and because his Ontario licence had been cancelled when he had surrendered it in exchange for that Alberta licence. And, as for the charge in count #3 for the offence of unlawfully retaining in his possession more than one licence, the defendant argues that he should be also acquitted of this charge because he did not physically have more than one driver's licence on or with him when he had been stopped by Officer Jamshidi, nor had Officer Jamshidi testified to finding the defendant physically in the possession of an Ontario licence, since his Ontario driver's licence had already been surrendered by the defendant on September 28, 2009, to the Alberta Ministry and then cancelled by the Ontario Ministry of Transportation on the same day.

[9] The Prosecution's Arguments

On the other hand, the prosecution contends that the defendant should be found guilty of committing the drive while under suspension offence in count #1, as the Ontario Ministry of Transportation had complied with the requirements of the H.T.A. in providing notice of the suspension to the defendant by mailing the Notice of Suspension on February 12, 2010, to the defendant's last known address in Ontario, even though it had been mailed after the date the defendant had already left the province in 2009 to reside in Alberta. In addition, the prosecution submits that the defendant had only testified to paying off his outstanding parking tickets and fines prior to leaving Ontario, but not that he had made sure that he had no outstanding H.T.A. tickets or charges to still deal with or that there were no H.T.A. tickets or charges still in the system that had not been dealt with by him before he left Ontario. Moreover, the prosecution submits that it had been the defendant's responsibility to ensure that all his outstanding H.T.A. tickets or charges were properly dealt with, whether he had resided or not resided in another province. In addition, the prosecution contends there is no evidence that he had indeed done anything with those H.T.A. tickets or charges that had led to the fines in question going unpaid, and because of his negligence in not dealing with those particular H.T.A. tickets or charges properly, he had been convicted and fined.

[10] Address Change Issues

Moreover, in reply to the defendant's assertion that the Ontario Ministry of Transportation would or should have had the defendant's Alberta address, the prosecution submits that there is no evidence that the Ontario Ministry did actually have the defendant's new address in Alberta after the defendant's Ontario driver's licence had been exchanged for an Alberta one, since the Ontario Ministry had mailed the Notice of Suspension on February 12, 2010, to the defendant's last known address in Toronto and not to his new address in Alberta.

[11] The Prosecution's Concession

Furthermore, the prosecution also submits that the drive while under suspension charge contained in count #1 can exist without the defendant having an actual Ontario driver's licence. In addition, the prosecution argues that if the suspension of the defendant's Ontario driver's licence is valid and the defendant had been aware or is deemed to be aware of the suspension by virtue of s. 52(2) of the H.T.A., then the charges in both count #1 and count #2, respectively, of driving while under suspension and for driving with a driver's licence from another jurisdiction when his Ontario driver's licence is suspended, will have been proven by the prosecution beyond a reasonable doubt. However, in respect to count #3, the prosecution conceded that it had not proven the charge that the defendant unlawfully retained in his possession more than one licence, since proving that offence required proof from the prosecution that the defendant had two driver's licences physically in his possession at the relevant time, which the prosecution admits they had failed to do.

[12] Key Issues

Ergo, the key issues to be decided in determining whether the defendant is guilty of committing the offences set out in counts #1 and #2, are firstly, whether the defendant had taken all reasonable care in the circumstance to ensure that his H.T.A. tickets or charges, which led to the defaulted fines in question, had been properly and reasonably dealt with by the defendant. And secondly, whether the defendant can rely on the Canadian Driver Licence Compact to support his contention that he had no notice or knowledge, nor that he had been made aware that his Ontario driver's licence had been suspended for unpaid fines until informed of such by Officer Jamshidi on November 26, 2014, especially since the defendant had been able to renew his Alberta driver's licence several times during the period that his Ontario licence had been under suspension. And thirdly, whether the defendant should be found at fault for not receiving the Notice of Suspension from the Ontario Ministry, since the defendant contends that the Ontario Ministry would have known about his new address in Alberta from the Alberta Ministry, after he had exchanged his Ontario license for the Alberta licence, so that the Ontario Ministry could have sent the Notice of Suspension to him in Alberta.

[13] Trial Proceedings

The trial of the defendant's 4 charges had been held on November 3, 2015, in which the defendant had represented himself at the trial. At the arraignment of the 4 charges, the defendant had entered not guilty pleas on counts #1, #2, and #3 of the Part III information, which were for driving while under suspension, of using a driver's licence from another jurisdiction when his Ontario driver's licence was under suspension, and for unlawfully retaining in his possession more than one driver's licence. However, the defendant had entered a guilty plea on count #4 of driving with a hand-held communication device, in which sentencing on that offence would be held after judgment is given on the three charges in which the defendant had entered not guilty pleas. In addition, only two witnesses had testified in the trial: (1) Officer Jamshidi, the investigating officer, and (2) the defendant. After closing submissions were made, judgment was reserved and the matter adjourned to February 12, 2016, for judgment.

Analysis and Decision

(A) Has The Prosecution Proven That The Defendant Has Committed The 4 H.T.A. Charges Beyond A Reasonable Doubt?

[16] Undisputed Facts

First of all, there is no dispute by the defendant that he had been operating a motor vehicle on Meyerside Drive on November 26, 2014, at 2:07 p.m. in the City of Mississauga when Officer Jamshidi had observed him holding a hand-held communication device. In fact, the defendant admits to driving his sister's motor vehicle while he was holding a cellphone, but disputes receiving actual notice of the suspension, knowing about the suspension, or being made aware of the suspension of his Ontario driver's licence for unpaid fines, until he was stopped and informed on November 26th by Officer Jamshidi that his Ontario licence had been under suspension.

[17] Defendant's Contentions

On the other hand, the defendant submits that there is no evidence that he had been in the possession physically of an Ontario driver's licence when he had been stopped and investigated by Officer Jamshidi, and that the Ontario Ministry would have had his Alberta address from the Alberta Ministry after the exchange of driver's licences and the cancellation of his Ontario licence on September 28, 2009.

(1) The Defendant Had Felt Threatened by Officer Jamshidi

[18] Collateral Issue

However, before continuing with the determination on whether the defendant has committed these 4 H.T.A. offences beyond a reasonable doubt, a collateral issue that could undermine the prosecution's case has to be considered first. On this collateral issue, the defendant had testified in the trial proper that he had felt threatened by Officer Jamshidi at some point during the two hours that the officer had stopped and kept the defendant at the location of the traffic stop. Officer Jamshidi's testimony also indicated that the defendant had been for the most part cooperative during the traffic stop and investigation, but at some point during their encounter, the defendant became uncooperative. In addition, the issue of whether any threat had been made by Officer Jamshidi to the defendant had been initially raised by the prosecution during the voir dire, which had been held to determine the voluntariness of any utterance or statement made by the defendant to Officer Jamshidi during the traffic stop and investigation. After the evidence given in the voir dire had been considered, it had been determined that the defendant's utterance or statements had been given voluntarily to Officer Jamshidi beyond a reasonable doubt. However, the court had also informed and explained to the defendant, who was self-represented, that if the circumstances warranted it, the issue of voluntariness could be reconsidered after all the evidence and testimony of the defendant in the trial proper had been heard.

[19] Reconsideration of Voluntariness

On this reconsideration question, no evidence had been presented in the trial proper that would have caused reconsidering the issue of the voluntariness of the defendant's utterances or statements, although the defendant had testified in the trial proper that he felt threatened by Officer Jamshidi after Officer Jamshidi had informed and warned the defendant about the consequences of being untruthful during Officer Jamshidi's investigation. Because Officer Jamshidi had felt the defendant was not being straightforward with him, Officer Jamshidi said he had warned the defendant about the possibility of being charged for obstructing justice if the defendant gave untruthful answers during Officer's questioning of the defendant. However, after the warning the defendant decided to remain silent and not answer any more of Officer Jamshidi's questions. This feeling of being threatened, which had been caused by Officer Jamshidi's warning, did not cause the defendant to involuntarily provide inculpatory statements to Officer Jamshidi; rather, it caused the defendant to stop making any more statements to Officer Jamshidi.

[20] Timing of the Threat Allegation

Moreover, the testimony by the defendant of feeling threatened by Officer Jamshidi appeared to have only been made by the defendant in the trial proper in the hope of having the case dismissed, and it had only became an issue after the court's comment made in the voir dire that it would reconsider the issue of the voluntariness of the defendant's utterances and statements if the circumstances warranted reconsideration after the evidence in the trial proper was completed and after the defendant had the opportunity to give complete testimony about the charges and the circumstances in respect to the traffic stop and investigation, since the line of inquiry in the voir dire had been limited in scope.

[21] Conclusion on Threat Issue

Accordingly, despite the defendant feeling threatened after Officer Jamshidi's warning about the consequences from being untruthful, there has been no evidence provided of any specific acts or words from Officer Jamshidi aimed at the defendant that would establish Officer Jamshidi had threatened the defendant during the traffic stop and investigation, which would raise any Charter concerns. Therefore, the issue of the voluntariness of the defendant's utterances or statements given to Officer Jamshidi will not be reconsidered.

(2) Count #1: "Driving While Driver's Licence Suspended" -- S. 53(1) H.T.A.

[22] The Offence and Penalties

For count #1, the defendant has been charged with driving a motor vehicle on a highway on November 26, 2014, while his Ontario driver's licence had been suspended by operation of the Highway Traffic Act, which is contrary to s. 53(1) of the H.T.A. If convicted of committing this offence the defendant is liable for a minimum fine of $1000 for a first conviction and the suspension of his driver's licence for a period of six months:

Driving while driver's licence suspended

53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000, or to imprisonment for a term of not more than six months, or to both.

Same

(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under section 41 or 42, even if it is under suspension at the same time for any other reason, is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $5,000 and not more than $25,000; and

(b) for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000,

or to imprisonment for a term of not more than six months, or to both.

Subsequent offence

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1)(b).

Same

(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1)(b).

Licence suspended

(3) The driver's licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto.

[23] Driving as a Privilege

Furthermore, it should be emphasized that driving is a privilege in Ontario and is so expressly stated by s. 31 of the H.T.A. Therefore, in order to protect the public from bad drivers the Ontario Ministry of Transportation is legislated to grant this privilege to drive on a public highway to only those persons who demonstrate that they are likely to drive safely:

Driving a privilege

31. The purpose of this Part is to protect the public by ensuring that,

(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and

(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions.

[24] Valid Driver's Licence Requirement

In addition, s. 32(1) of the H.T.A. only permits individuals who hold a valid driver's licence issued to them under the provisions of the H.T.A. to drive a motor vehicle on a highway in Ontario:

Driver's licence

32(1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver's licence issued to him or her under this Act.

[25] Exception for Non-Residents

However, s. 34 of the H.T.A. provides an exception to the requirement of having a valid Ontario driver's licence before someone can legally operate a motor vehicle on an Ontario highway under s. 32, where the person has a driver's licence from another province or territory in Canada, which is still valid and not suspended. As such, an out-of-province licenced motorist is not required to first obtain an Ontario driver's licence before they are legally permitted to drive in Ontario, as long as they have not become permanent residents of Ontario:

Exemption as to non-residents, licensing requirements

34(1) Section 32 and any regulation made thereunder do not apply to any person who is,

(a) a resident of any other province of Canada, who is at least sixteen years of age and has complied with the law of the province in which he or she resides as to the drivers of motor vehicles; or

(b) a resident of any other country or state,

(i) who is at least sixteen years of age and is the holder of a valid International Driver's Permit, or

(ii) who is at least sixteen years of age and has not resided in Ontario for more than three months in any one year and has complied with the law of the country or state in which he or she resides as to the licensing of drivers of motor vehicles.

Exemption of new residents

(2) Section 32 and any regulation made thereunder do not apply to a person for sixty days after he or she has become a resident of Ontario if during such period he or she holds a subsisting driver's licence in accordance with the laws of the province, country or state of which he or she was a resident immediately before becoming a resident of Ontario.

[26] Prohibition on Using Out-of-Province Licence While Suspended

On the other hand, by virtue of s. 36 of the H.T.A., if an individual's Ontario driver's licence is under suspension then they are not permitted to drive in Ontario using a driver's licence issued by another jurisdiction:

Driving prohibited while licence suspended

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

[27] Basis for Suspension

Moreover, s. 46 of the H.T.A. provides the basis for the Registrar of Motor Vehicles for the Ontario Ministry of Transportation to suspend a motorist's Ontario driver's licence when they do not pay their fine or fines, which have been imposed for a conviction under the H.T.A. and its regulations, or for a conviction under statutes that are listed in the Schedule, such as the Compulsory Automobile Insurance Act:

Defaulted fine

46(1) This section applies if a fine is imposed on conviction for an offence and the offence is an offence,

(a) under this Act or the regulations;

(b) under any other Act listed in the Schedule to this section or under the regulations made under such an Act;

(d) under subsection 32(1) of the Liquor Licence Act; or

(e) that was committed with a motor vehicle under section 249, 249.1, 249.2, 249.3, 249.4, 252, 253, 254, 255 or 259 of the Criminal Code (Canada).

Order or direction

(2) If the payment of a fine imposed on conviction for an offence is in default, an order or direction may be made under section 69 of the Provincial Offences Act directing that the convicted person's driver's licence be suspended and that no driver's licence be issued to him or her until the fine is paid.

Suspension by Registrar

(3) On being informed of an outstanding order or direction referred to in subsection (2), the Registrar shall suspend the person's driver's licence if it has not already been suspended under another order or direction referred to in subsection (2).

Reinstatement

(4) On being informed that the fine and any applicable administrative fee for reinstatement of the person's driver's licence have been paid, the Registrar shall reinstate the licence, unless he or she has also been informed that,

(a) another order or direction referred to in subsection (2) is outstanding;

(b) the licence is suspended under any other order or direction or under another statute;

(d) an applicable prescribed administrative fee for handling a dishonoured cheque has not been paid.

Regulations

(5) The Lieutenant Governor in Council may make regulations prescribing forms and procedures and respecting any matter considered necessary or advisable to carry out effectively the intent and purpose of this section.

SCHEDULE

Compulsory Automobile Insurance Act
Dangerous Goods Transportation Act
Motorized Snow Vehicles Act
Off-Road Vehicles Act
Public Vehicles Act

[28] Validity of Suspended Licence

In addition, in the situation where an individual has had their Ontario driver's licence suspended, then according to s. 32(7) of the H.T.A., it will not be legally valid for purposes of s. 32(1) until the prescribed administrative fee for its reinstatement has been paid:

Contingent validity

32(7) Where a driver's licence issued under subsection (5) has been suspended, it is not valid for purposes of subsection (1) until the prescribed administrative fee for its reinstatement has been paid.

(a) Can the Ministry of Transportation suspend a driver's licence that it had cancelled earlier?

[29] The Paradox

To prove that the defendant's Ontario driver's licence had been suspended, the prosecution entered a certified document from the Registrar of Motor Vehicles for the Ontario Ministry of Transportation, which states that the defendant's Ontario driver's licence had been suspended effective February 12, 2010, for unpaid fines (Exhibit #1). However, as evidenced by the Ministry of Transportation e-mail that had been received by the defendant and entered as Exhibit #2, the defendant's Ontario driver's licence had already been cancelled by the Ontario Ministry on September 28, 2009, when the defendant had surrendered and exchanged his licence for an Alberta driver's licence. As such, is there a statutory provision in the H.T.A. that would cover this situation of the Ontario Ministry suspending someone's driver's licence when the Ministry had already canceled that person's licence?

[30] No Statutory Prohibition

Although it may seem illogical that a driver's licence, which had already been cancelled, could still be suspended, there does not appear to be anything in law that would prevent the Ontario Ministry of Transportation from doing such.

[31] Cancellation Upon Exchange

To begin with, the defendant's Ontario driver's licence had been cancelled by the Ontario Ministry on account of the defendant surrendering his Ontario licence to the Alberta Ministry and exchanging it for an Alberta license on September 28, 2009. Most provincial jurisdictions in Canada require that a motorist surrender their driver's licence issued by their old province of residence to the Ministry of the new province of residence before the Ministry of the new province of residence will issue that motorist a driver's licence for that new province of residence. Moreover, most provincial jurisdictions require a person who moves to their province from another province to obtain a driver's licence from that new province within a certain time of taking residence in that new province, if they wish to continue driving legally in that new province of residence. Furthermore, most provincial jurisdictions also prohibit someone from applying for, securing, retaining, or being in the possession of two driver's licences from two different jurisdictions in Canada.

[32] Suspension of Privilege vs. Licence

In addition, there is also the prohibition contained in s. 36 of Ontario's H.T.A. which specifically bars someone from being able to drive in Ontario using a driver's licence from another jurisdiction while their driver's licence has been suspended or while their privilege to drive in Ontario has been suspended, which confirms the notion that someone can have their privilege to drive in Ontario suspended without that person having a valid driver's licence. In other words, even though the defendant's driver's licence had already been cancelled because the defendant had surrendered his Ontario licence in exchange for an Alberta licence in 2009, the defendant's privilege to drive in Ontario can still be suspended without the defendant having a valid Ontario driver's licence at the time of the suspension:

Driving prohibited while licence suspended

[33] Consecutive Suspensions

In addition, the H.T.A. already allows the driver's licence of someone, who does not have a valid driver's licence because it is already under suspension, to be suspended for a further period of suspension. This is found in s. 53(3) of the H.T.A., which allows the driver's licence of a person who is convicted of driving while under suspension for a traffic or Criminal Code offence to be suspended for a period of six months in addition to any other period for which the driver's licence is already under suspension and to also be suspended consecutively to any other existing suspension. Hence, this particular provision under the H.T.A. explicitly shows that a motorist, who did not have a valid driver's licence because it was already under suspension, can still have their driver's licence suspended for another period of 6 months.

[34] Canadian Driver Licence Compact Recognition

It is also noteworthy that the definition of "home jurisdiction" contained in Article 1 of the Canadian Driver Licence Compact in conjunction with Article 2.2 of the Compact, has made specific reference to the situation where a driver, who had never been issued a driver's licence by any member jurisdiction to that Compact, has been convicted of committing a traffic offence in one of the member jurisdictions. In that situation, the "home jurisdiction" for the unlicenced driver is defined as the province or territory where that unlicenced driver resides in. Furthermore, the Compact also empowers that province, in which the unlicenced driver resides, from not having to issue a driver's licence to that unlicenced driver when that unlicenced driver's right to obtain or hold a driver's licence has been suspended, cancelled, or revoked by the province where they once had a driver's licence or where they had once resided. In addition, Article 2.2 recognizes the ability of a province to suspend someone's privilege of driving in that province, even though they had never obtained or been issued a valid driver's licence:

For the purposes of this Compact:

"Home jurisdiction" means:

the jurisdiction that issues a driver's licence and has the authority to suspend, cancel or revoke it, or the jurisdiction of residence in the case of a person who does not hold a driver's licence.

"Jurisdiction of origin" means:

the jurisdiction which has issued the driver's licence that the driver wants to exchange for a licence of the jurisdiction to which the driver has moved.

2.2 A party should not issue a driver's licence to the applicant if:

— The applicant's right to obtain or to hold a driver's licence:

(a) is suspended, cancelled or revoked in the applicant's jurisdiction of origin because of conviction(s) for an offences(s) listed in Article 4; or

(b) would be suspended, cancelled or revoked in the home jurisdiction had the applicant's record of convictions been the result of the equivalent offences committed in that jurisdiction, and its sanctions applied thereto;

— The applicant is the holder of a valid driver's licence issued in another jurisdiction unless the applicant surrenders such licence.

[35] Practical Necessity

And, even though there is no provision in the H.T.A. that would specifically deal with this particular situation of suspending a driver's licence, which had already been cancelled, there would have to be, for practical reasons, a system established by the Ontario Ministry to keep track of driving and traffic offences committed by individuals without valid driver's licences issued by Ontario and their resulting fines or disposition, as well as for out-of-province drivers who do not possess valid driver's licence or who do have a valid driver's licence issued to them by their home province, otherwise unlicensed drivers or drivers from out-of province could drive with impunity or without consequence in Ontario.

[36] Record-Keeping System

Hence, the Ontario Ministry of Transportation would have to have a system of recording information in regards to who has been convicted of committing a driving or traffic offence in Ontario, as well as for the fines and dispositions in respect to those convictions. Moreover, this system of recording information in respect to driving or traffic offences committed in Ontario would have to include records of people who reside in Ontario, but who had never obtained an Ontario driver's licence from the Ontario Ministry, as well as for people who reside out-of-province and who hold a valid driver's licence from that outside jurisdiction, or who have never been licenced. It seems, therefore, that the most practical and logical method in recording the convictions for driving or traffic offences committed by unlicenced drivers who reside in Ontario and for ones who reside outside Ontario that either hold a valid driver's licence or who do not have a driver's licence, is simply to create a file in the name of the person and to assign an Ontario driver's licence number for those without driver's licence and for those who reside out-of-province. In this way, the Ontario Ministry would be able to keep a record of and also create a database of information in respect to those specific driving and traffic offences committed in Ontario, in order to keep track of the disposition of the charges and fines associated with any convictions, and to share that information with other provinces and territories in Canada who are members of the Canadian Driver Licence Compact.

[37] Suspension of Out-of-Province Drivers

And, if an out-of province driver's fines are not paid then the Ontario Ministry would suspend that that out-of province driver's privilege to drive in Ontario by recording that driving suspension under the assigned Ontario driver's licence number and name of that out-of-province driver, and to also forward that information about the driving conviction and fine to the province that issued the licence to that out-of-province driver or other province where the out-of-province driver resides if the driver does not hold a valid driver's licence, but only if the Ontario Ministry is obligated to do so under the Canadian Driver Licence Compact.

[38] Application to the Defendant

As such, for someone like the defendant, who had previously had an Ontario driver's licence, and who is presently using an Alberta driver's licence, and is then convicted of a driving or traffic offence in Ontario, there would already be an Ontario Ministry file and existing Ontario driver's licence number for the defendant, so that the traffic ticket issued on that out-of-province driver's licence could then be recorded in the driver's name under his pre-existing file and Ontario driver's licence number, in order for the Ministry to keep track of the ticket and any fines associated with it.

[39] Implied Power to Suspend

Consequently, since the Ontario Ministry of Transportation must have the power and ability to suspend the privilege of driving in Ontario to unlicenced drivers, in order to protect the public from bad drivers, then in order for the Ministry to facilitate this measure, unlicenced drivers would have to have a Ministry file created in their name and an Ontario driver's licence number assigned to them for keeping track of the unlicenced driver's record of driving, convictions, and fines. Therefore, if the Ontario Ministry has the implied and necessary power to suspend the driving privilege of an unlicenced driver, then the Ontario Ministry ought to also be able to suspend the defendant's privilege to drive in Ontario, even though the defendant's Ontario driver's licence had already been cancelled, by suspending the previously assigned Ontario driver's licence number assigned to the defendant.

(b) What category of offence is the drive while under suspension offence?

[40] Strict Liability Classification

As for the type of regulatory offence and the analysis to use, the offence of "drive while under suspension" has been classified as a strict liability offence by MacDonnell J. (as he was then) in R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 (O.C.J.). Therefore, as MacDonnell J. had succinctly explained at para. 11 in Montgomery, the analysis for determining whether the prosecution has proven that the defendant is guilty beyond a reasonable doubt of committing this particular offence involves a two-stage inquiry. For the first stage of the inquiry, MacDonnell J. held that the prosecution must prove that the defendant's Ontario driver's licence had been under suspension and that the defendant had been operating a motor vehicle on an Ontario highway at the relevant time and place while his Ontario licence had been suspended. And, if that onus has been met, then the prosecution will have met its burden in proving the actus reus of the offence beyond a reasonable doubt and the burden will then shift to the defendant to prove the defence of due diligence on a balance of probabilities, if the defendant does not wish to be found guilty of committing that offence. However, MacDonnell J. also emphasized that the prosecution is not required to prove that the defendant had knowledge of the suspension, but that in most cases it will attempt to do so with the aid of s. 52(2) of the H.T.A.:

Driving while under suspension contrary to s. 53 of the Highway Traffic Act is a strict liability offence within the meaning of the classification scheme described by the Supreme Court of Canada in R. v. City of Sault Ste. Marie, [1978], 2 S.C.R. 1299, 40 C.C.C. (2d) 353: see R. v. Middlebrook; R. v. Miller; R. v. Laporta (1988), 5 M.V.R. (2d) 236 (Ont. C.A.); R. v. MacDougall, [1982] 2 S.C.R. 605; R. v. Lowe (1991), 29 M.V.R. (2d) 265 (N.S.C.A.). Because it is a strict liability offence, the burden on the Crown is discharged upon proof of the actus reus of the offence, namely (i) that the defendant's license to drive was suspended, and (ii) that while it was suspended, he drove. The Crown does not have to prove knowledge of the suspension, although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act.

(c) The Ontario Ministry of Transportation Is Required Under The H.T.A. To Notify The Defendant Of The Suspension Of His Driver's Licence

[41] Notice Requirements

By virtue of s. 52(1) of the H.T.A., the Ontario Ministry of Transportation is required to notify the defendant of the suspension of his Ontario driver's licence. This requirement of providing notice to the defendant is sufficiently given if the notice is delivered personally to the defendant or if the notice is sent by ordinary mail addressed to the defendant at the latest current address of the person appearing on the records of the Ministry:

Service of notice of licence suspension

52(1). Where a person's driver's licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a) in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

(i) The Notice of Suspension sent to the defendant on Feb. 12, 2010 (Exhibit #1)

[42] Compliance with Notice Requirements

The prosecution provided a certified document issued by the Registrar of Motor Vehicles for the Ontario Ministry of Transportation, which has been entered as Exhibit #1 and which is produced below, as evidence that the Deputy Registrar of Motor Vehicles had notified the defendant by ordinary mail sent out on February 12, 2010, that the defendant's driver's licence had been suspended effective February 12, 2010, for unpaid fines. The notice had been sent to the defendant's last known address of 2560 St. Clair Ave. W., Toronto, Ontario, as required under s. 52(1)(b) of the H.T.A. (see Exhibit 1):

[Page 1]

I hereby certify from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act that the drivers licence of ABDI OSMAN, a male person, born the [date of birth removed for privacy], whose latest address is 2560 St. Clair Ave. W, Toronto, Ontario was suspended effective the 12th day of February 2010 pursuant to a Court Order under the Highway Traffic Act for default of payment of fine.

I further certify that a notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 12th day of February 2010 to ABDI OSMAN at 2560 St. Clair Ave. W, Toronto, Ontario which then was the latest address on the records of the Ministry and that the said suspension was in effect on the 26th day of November 2014.

I further certify that the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation.

Given under my hand and the seal of the Ministry of Transportation. This 23rd day of March 2015.

Heidi Francis Registrar of Motor Vehicles

[Page 2]

Notice of Suspension of Driver's Licence

Tel. (416) 235-2999 1-800-387-3445

Date 2010/02/12

Reference of driver's licence number [removed for privacy]

Date of birth [removed for privacy]

Sex: MALE

Suspension No. 0037748

OSMAN, ABDI 2560 ST CLAIR AVE W TORONTO ONT. M6N 1L7

YOUR DRIVER LICENCE IS SUSPENDED UNDER SECTION 46 OF THE HIGHWAY TRAFFIC ACT FOR NOT PAYING A FINE OR FINES EFFECTIVE FEB. 12, 2010. DRIVER'S LICENCE SUSPENSIONS WILL ALSO AFFECT YOUR COMBINED PHOTO CARD, KNOWN AS AN ENHANCED DRIVER'S LICENCE (EDL), IF YOU ARE AN EDL HOLDER

YOUR LICENCE WILL REMAIN SUSPENDED UNTIL ALL FINES ARE PAID. FINE PAYMENTS MUST BE MADE TO A PROVINCIAL OFFENCES ACT COURT OFFICE. CALL YOUR LOCAL PROVINCIAL OFFENCES ACT COURT OFFICE FOR FINES INFORMATION AND PAYMENT LOCATIONS.

NOTE: AFTER FINES PAYMENT IS RECEIVED A MINMIMUM OF 4 DAYS IS NEEDED TO PROCESS REINSTATEMENT OF YOUR LICENCE.

REINSTATEMENT FEE OR MONETARY PENALTY:

DUE TO YOUR SUSPENSION(S), YOU MUST PAY A $150 FEE OR PENALTY TO OBTAIN A LICENCE AFTER YOUR SUSPENSION(S) ENDS.

PLEASE SEE THE BACK OF THIS FORM ON HOW TO PAY.

02839632

JUDY TAGGART DEPUTY REGISTRAR OF MOTOR VEHICLES

[43] Deemed Receipt

And, according to s. 52(2) of the H.T.A., the defendant is deemed to have received notice of the suspension on the seventh day after the Ontario Ministry of Transportation mails the notice to the defendant's last known address, unless the defendant establishes that he, acting in good faith, did not receive the notice through absence, accident, illness or other cause beyond his or her control:

Deemed date of service

52(2) Notice sent by registered mail under clause (1)(a) or by mail under clause (1)(b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

[44] Compliance Established

In respect to service of the suspension, Exhibit #1 proves that the Registrar of Motor Vehicles for the Ontario Ministry of Transportation had complied with s. 52(1)(b) of the H.T.A. by mailing the Notice of Suspension on February 12, 2010, to the defendant's latest current address appearing on the records of the Ministry, which had been 2560 St. Clair Ave. W. in the City of Toronto.

[45] Regulatory Requirements Met

Accordingly, the prosecution has fulfilled the regulatory requirements of proving that the defendant had been given notice by mail that his Ontario driver's had been suspended, which notice was deemed to have been given to the defendant on the seventh day following the notice being mailed out on February 12, 2010.

(iii) The Defendant Has The Burden On A Balance Of Probabilities To Prove That He, Acting in Good Faith, Did Not Receive The Notice of Suspension Because of Absence, Accident, Illness Or Other Cause Beyond His Control

[46] Burden Shifts to Defendant

Moreover, after finding and adopting the holding in R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 (O.C.J.) as to what the law is for the offence of drive while under suspension, McLeod J. reiterated in R. v. Quick, [2015] O.J. No. 5433 (O.C.J.), at paras. 6 and 7, that once the prosecution has proven the actus reus of the offence, namely (1) that the defendant's Ontario driver's licence was under suspension and (2) that while the defendant's Ontario driver's licence was under suspension he drove a motor vehicle on an Ontario highway, then the burden shifts to the defendant to prove he was not at fault on a balance of probabilities:

… Nonetheless the law is clear. In R. v. Montgomery 2006 ONCJ 203, [2006] O.J. No. 2267, Justice MacDonnell clarified that because this offence is a strict liability offence "the burden on the Crown is discharged upon proof of the actus reus of the offence, namely (i) that the defendant's license to drive was suspended, and (ii) that while it was suspended, he drove". He went on to state that "the Crown does not have to prove knowledge of the suspension", that having established the suspension based on MTO records, the burden shifted to the defendant to show that he was not at fault. In reaching his decision, Justice MacDonnell invoked the Ontario Court of Appeal decision in R. v. Miller, [1988] O.J. No. 253 and other relevant jurisprudence. Issues similar to the one's emerging from the present case were also dealt with by Justice Harris in a set of POA appeals - R. v. Lamanna, Jane and Caldwell, [2014] O.J. No. 4901. As in the present case, these defendants were tried in absentia. Unlike the present case, the presiding Justice actually refused to admit the driving record - thereby setting the stage for acquittals. On the appeal, Justice Harris found that once the prosecution met the statutory requirements, a Justice of the Peace had no basis for refusing to receive the records; and once the records were admitted, the prosecution's case was made out. The onus then shifted to the defendants to establish due diligence - which obviously failed because they didn't attend the trial. Justice Harris acknowledged that Justice Fairgreve took a somewhat different position on the law in the case of R. v. Bellomo [1995] O.J. No. 313 - but he found that position couldn't be maintained, not least because it was effectively overruled by Justice MacDonnell's decision in R. v. Montgomery. I agree completely with Justice Harris.

… Once the record was in evidence, the prosecution's case was made out. In the absence of any evidence suggesting that Mr. Quick was unaware that his licence had been suspended or that could otherwise support the defence of due diligence - a conviction should have followed.

[47] Miller Decision on Due Diligence

Furthermore, in R. v. Miller, [1988] O.J. No. 253 (O.C.A.), the Court of Appeal for Ontario had to decide together the appeals of three different motorists, who had all been convicted of committing H.T.A. offences related to their driver's licences being suspended or not renewed by the Ministry of Transportation. In respect to the appellant named Laporta, the Court of Appeal held at paras. 5 and 6, that s. 34, which is similar to s. 52(2) of the present H.T.A. (except that sending the notice by regular mail instead of sending the notice by registered mail is now permitted for giving notice to the defendant of the suspension of the defendant's Ontario driver's licence) did not infringe ss. 7 or 11(d) of the Charter, nor did it create a reverse onus with respect to proving an essential element of the drive while under suspension offence, since the drive while under suspension offence is a regulatory offence in which the defence of due diligence is applicable and that the absence of notice is relevant to the due diligence defence:

... The additional point raised in Laporta was that s. 34 [which is similar to s. 52(2)] contravened the presumption of innocence protected by s. 11(d), and also contravenes s. 7 of the Charter. Section 34 [which is similar to s. 52(2)] provides for a presumptive inference of service of notice of suspension where it is given by registered mail unless the accused establishes on a balance of probabilities that he did not, for the reasons set forth in the section, receive the notice.

In our view, s. 34 [which is similar to s. 52(2)] does not create a reverse onus with respect to an essential element of the offence under s. 35. Section 35 is a regulatory offence to which the defence of due diligence is applicable; absence of notice is relevant to such a defence. Section 34 [which is similar to s. 52(2)] in our view does not contravene either ss. 11(d) or 7 of the Charter, and this appeal must also be dismissed.

(d) The Prosecution Has Proven The Actus Reus Of The Drive While Under Suspension Offence Beyond A Reasonable Doubt

[48] Actus Reus Established

For the first stage of the inquiry into whether the defendant should be found guilty of committing the offence of drive while under suspension, the prosecution has met its burden in proving beyond a reasonable doubt that the defendant's Ontario driver's licence was under suspension on November 26, 2014 (see Exhibit #1), and that Officer Jamshidi had observed the defendant operating a motor vehicle at 2:07 p.m. on November 27, 2014, on Meyerside Drive in the City of Mississauga when his Ontario driver's licence had been under suspension.

[49] Burden Shifts to Defendant

Therefore, the second stage of the inquiry will now have to be undertaken to determine whether the defendant has met his burden of proving on a balance of probabilities that he was not at fault.

(e) Has The Defendant Proven On A Balance Of Probabilities The Defence Of Due Diligence?

[50] Due Diligence Defence

In respect to the Notice of Suspension that had been mailed out to the defendant by the Registrar of Motor Vehicles for the Ontario Ministry of Transportation and on how that is relevant to whether the defendant has proven that he had not been at fault for committing the drive while under suspension offence, MacDonnell J. held at para. 12 in R. v. Montgomery, that evidence that the accused did not receive the notice of suspension, which had been mailed out by the Registrar of Motor Vehicles for Ontario, would be an important circumstance to consider in relation to whether the accused has proven the defence of due diligence on a balance of probabilities. However, MacDonnell J. also emphasized that such evidence would not necessarily discharge the burden on the accused unless the accused also establishes that he did not otherwise know of the suspension and that his lack of knowledge had not been due to his negligence:

In the case at bar, there is no dispute that the evidence proved the actus reus of the offence of driving under suspension beyond a reasonable doubt. Once the Crown establishes the actus reus of a strict liability offence, the burden shifts to the defendant to show that he was not at fault. Accordingly, if the appellant hoped to avoid conviction, the burden was on him to establish that he exercised due diligence – i.e., that he was not negligent – in relation to whether his license was under suspension. Evidence that the notice of suspension mailed by the Registrar of Motor Vehicles was not received would be an important circumstance to consider in relation to this issue: R. v. Middlebrook, supra. However, such evidence would not necessarily discharge the burden on the appellant unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his negligence.

[51] Timing of Suspension

Moreover, it had been approximately 5 or 6 months after the defendant had moved to Alberta and after the defendant's Ontario driver's licence had been surrendered and cancelled on September 28, 2009, that the Registrar of Motor Vehicles for the Ontario Ministry of Transportation had suspended the defendant's Ontario licence on February 12, 2010, for unpaid fines. To notify the defendant of the suspension, the Registrar of Motor Vehicles had sent out the Notice of Suspension by ordinary mail to the defendant's last known address of 2560 St. Clair Avenue West, Toronto, on February 12, 2010, as required under s. 52(2) of the H.T.A. And, even though the defendant had testified that he had not been residing at that Toronto address after September 28, 2009, the defendant is nevertheless deemed under s. 52(2) to have received service of the Notice of Suspension on the seventh day after the notice had been mailed to the defendant's last known address, unless the defendant can establish on a balance of probabilities that he, acting in good faith, did not receive the notice through absence, accident, illness or other cause beyond his control.

[52] Defendant's Lack of Knowledge

To establish that he did not actually receive the Notice of Suspension (Exhibit #1) mailed out by the Ontario Ministry of Transportation, nor that he knowledge of or been made aware of the suspension, the defendant had testified that he had only become aware that his Ontario driver's licence had been suspended when he had been stopped by Officer Jamshidi on November 26, 2014, and informed by the officer that his Ontario driver's licence had been suspended. And to further support his contention that he did not actually receive the Notice of Suspension, the defendant argued that the Notice of Suspension had been sent to his old Toronto address on February 12, 2010, which is months after he had already moved to Alberta in 2009, and months after his Ontario driver's licence had already been surrendered in Alberta, as well as already being cancelled by the Ontario Ministry on September 28, 2009.

[53] Alberta Licence Renewals

And, to further prove the defendant's contention that he had no knowledge of or been made aware that his Ontario driver's licence had been suspended, the defendant contends that from the date he had initially received his Alberta driver's licence on September 28, 2009, until the day that he was stopped and charged by Officer Jamshidi on November 26, 2014, he has had to renew his Alberta driver's licence 3 or 4 times, since he is legally required in Alberta to renew his licence every 2 years because he is a professional truck driver and over 45 years of age, and that he had been able to renew his Alberta licence each time without problem or without the Alberta Ministry refusing to renew his Alberta licence because of the Ontario suspension. And, because he would not have been allowed to obtain or renew his Alberta licence if his Ontario licence had been suspended or not valid, then the defendant contends that he could not have known or been made aware that his Ontario licence had indeed been suspended, since he had been permitted to renew his Alberta driver's licence on all those occasions of renewal after he had moved to Alberta.

[54] Officer's Belief vs. Evidence

On the other hand, Officer Jamshidi testified that from his conversation with the defendant during the traffic stop of November 26, 2014, Officer Jamshidi had reason to believe that the defendant had been aware of his suspension and that the defendant had only obtained an Alberta license to avoid the problems associated with his Ontario driver's licence. However, there is no evidence nor particular admissions or statements made by the defendant to Officer Jamshidi that would support Officer Jamshidi's belief that the defendant had known about the suspension of his Ontario licence before Officer Jamshidi had charged the defendant on November 26, 2014.

[55] Defendant's Efforts to Clear Fines

Moreover, before the defendant had moved to Alberta, the defendant had believed that he had no demerit points and that all his parking tickets and outstanding fines had been paid, since he had attended at the courthouse on Queen Street in Toronto about a month before he left Ontario to enquire about his outstanding parking tickets and fines and then paid them off. In addition, he said he knew he had to clear up his parking tickets and outstanding fines in order to ensure that his Ontario driver's licence would be in good standing, so that he would then be able to exchange it for an Alberta licence.

[56] Officer's Unqualified Opinion

However, Officer Jamshidi had also testified that some provinces would issue and exchange a driver's licence from another province with the expectation that the motorist would later pay off their fines that are owing to another province. However, no weight can be put on this particular evidence, since Officer Jamshidi had not been qualified as an expert on the procedures of other provinces or the Alberta Ministry in issuing an Alberta driver's license to a motorist who moves to Alberta from Ontario.

[57] Defendant's Assumption About Address Notification

In addition, when asked why he did not inform the Ontario Ministry of Transportation of his new address in Alberta, the defendant testified that the Alberta Ministry would have informed the Ontario Ministry of Transportation of his new Alberta address after he had exchanged his Ontario licence for the Alberta licence.

[58] Mail Forwarding

Also, when asked why he did not make arrangements with Canada Post to have his mail forwarded to his new address or to another address, which could forward mail to him, the defendant replied that he had not make such arrangements and that the mail in any event would have only been forwarded by Canada Post for 5 to 6 months.

[59] No Change of Address to Court

In addition, there has been no evidence presented that the defendant had provided his change of address to the courthouse that had jurisdiction over the H.T.A. tickets or charges that had resulted in the unpaid fines.

(i) Was the defendant diligent in dealing with the H.T.A. tickets or charges that had led to the unpaid fines?

[60] Burden on Defendant

Once again, it should be emphasized that the defendant has the burden on a balance of probabilities to prove that he was not negligent in dealing with all his H.T.A. tickets or charges, especially the ones that ultimately led to convictions and fines that resulted in the fines going unpaid and the resulting suspension of his Ontario licence by the Ontario Ministry of Transportation. This burden to prove that he was not negligent includes the defendant having to also establish that he, acting in good faith, had not received the notice of suspension through absence, accident, illness, or other cause beyond his control.

[61] Defendant's Contentions

To reiterate, the defendant contends that he had believed he had taken care of all his parking tickets and outstanding fines before he had moved to Alberta in 2009 or he would not have been issued an Alberta driver's licence, and that did not receive actual notice of the Notice of Suspension because he had already moved to Alberta and that his Ontario licence had already been surrendered and cancelled 5 to 6 months before the suspension notice had been mailed out, nor did he have knowledge of or been made aware of his Ontario suspension based on the actions of the Alberta Ministry in renewing his Alberta licence 3 or 4 times and in not preventing him from renewing his Alberta licence on account of the Ontario suspension.

And, because the defendant had been able to renew his Alberta licence during the period that his Ontario driver's licence had been under suspension, also raises the question of whether provinces do exchange information among themselves about a motorist's driving or traffic offences, convictions in respect to these offences, and information about any outstanding fines, where the motorist has committed these driving or traffic offences outside of the province or territory in which the motorist resides or is licenced, and whether the province where the motorist resides or is licenced will issue or renew a driver's licence to the motorist, if the fines of that motorist incurred in another province are not paid off.

[63] Lack of Notice Does Not Defeat Due Diligence

It should also be evident that the defendant in not actually receiving the Notice of Suspension or that his lack of awareness about his Ontario licence being suspended for unpaid fines does not necessarily create reasonable doubt, nor will it lead to an acquittal, especially if he had been negligent or not diligent in dealing with all of his H.T.A. tickets or charges that he had received, before he had moved to Alberta.

(ii) Would the Ontario Ministry of Transportation have known about the defendant's new Alberta address?

[64] No Evidence of Address Notification

No evidence had been produced that the defendant had ever informed the Ontario Ministry of Transportation of his new Alberta address after he had moved to Alberta in 2009. Furthermore, the defendant had admitted at trial that he did not arrange to have his mail forwarded by Canada Post from his 2560 St. Clair Ave. West, Toronto address to his new Alberta address or to another address where his mail could be forwarded to him because Canada Post would only forward mail for no more than 5 or 6 months.

However, the defendant contends that the Ontario Ministry of Transportation would have known about his new address in Alberta, since the Alberta Ministry responsible for issuing driver's licences in Alberta would have provided the defendant's Alberta address to the Ontario Ministry, when the defendant had surrendered and exchanged his Ontario licence for the Alberta licence with the Alberta Ministry. At first glance, the defendant's contention is not illogical in light of the interprovincial agreement called the "Canadian Driver Licence Compact", in which both Alberta and Ontario are signatories to that agreement, and where under such agreement driver's licences can be surrendered and exchanged by motorists who move from one province to another, and whereby information on specific driving or traffic offences committed by motorists in a province or territory outside their own province of residence or province where they are licenced are supposed to be shared with the province or territory where the motorist resides or is licenced.

[66] Ministerial Authority

In respect to interprovincial agreements between provinces and territories in Canada in respect to sharing information on motorists who commit driving offences, for cooperating in the sanctioning of drivers who commit driving offences outside their province of residence or province where they are licenced, and for facilitating the exchange of driver's licences, s. 40(1) of the H.T.A. authorizes the Minister of Transportation for Ontario to enter into such a reciprocal agreement with the government of any province or territory of Canada in respect to such endeavors, while s. 40(2) of the H.T.A. makes the provisions of the H.T.A. subject to any such reciprocal agreement:

Agreements with other jurisdictions

40(1) The Minister may enter into a reciprocal agreement with the government of any province or territory of Canada or of any state of the United States of America providing for,

(a) the sanctioning by the licensing jurisdiction of drivers from that jurisdiction who commit offences in the other jurisdiction; and

(b) on a driver's change of residence, the issuance of a driver's licence by one jurisdiction in exchange for a driver's licence issued by the other jurisdiction.

Effect of agreement

(2) The provisions of this Act and the regulations with respect to the licensing of drivers are subject to any agreement made under this section.

(b) The Canadian Driver Licence Compact

[67] Signatories and Purpose

On September 27, 1990, most Canadian provinces, including, the provinces of Ontario and Alberta, became signatories to the Canadian Driver Licence Compact, which sets out guidelines for the way provinces administer driver's licences and records when drivers move from one province to another, the sharing of information about motorists who are convicted of specific driving offences, and the obligation to deny the issuance or renewal of driver's licences to motorists until outstanding fines are paid.

[68] Text of the Compact

The wording of this interprovincial agreement can be found in Murray Segal's reference book, "The Motor Of Vehicle Law, 3rd ed." (looseleaf) (Toronto, Ontario: Carswell, 1982), at pp. 4-32 to 4-38. The relevant parts of the Canadian Driver Licence Compact is reproduced below:

Canadian Driver Licence Compact (Amended June 2001)

The Canadian Driver Licence Compact, an agreement among most provinces and the territories to exchange traffic offence information, was signed earlier this year by Ontario.

Under the compact's terms specified infractions committed under the highway traffic acts of each participating province will result in the application of demerit points to the driver's home province record.

As of June 1, 1991, Ontario began exchanging traffic offence conviction information with Manitoba, Alberta and Newfoundland.

As well as the safety-related features of the Compact, it provides for easy transfer of driver licence information of people relocating to other provinces.

Ontario has a separate agreement with Quebec, supra.

In June 2001, the Canadian Council of Motor Transport Administrators approved changes to the Canadian Driver Licence Compact designed to increase road safety and move further towards the one driver licence-one driver record concept. Under the changes, the jurisdiction where the offence has taken place is now obligated to notify the home jurisdiction, which will then take action as if the offence had remained unpaid in the home jurisdiction. In addition, the changes also allow the home jurisdiction a number of options to either withhold or suspend the person's driving privileges or deny vehicle registration. In the original agreement, Article 5 was written in permissive language which allowed jurisdictions the option of not taking action for unpaid fines.

The following is the Canadian Driver Licence Compact between the provinces and territories:

Council of Ministers Responsible for Transportation and Highway Safety

ENTERED INTO this 27th day of September, A.D. 1990 between:

The Government of Ontario herein represented by the Minister of Transportation and;

The Government of Québec herein represented by le Ministre des Transports and;

The Government of Nova Scotia herein represented by the Minister of Transportation and Communications and;

The Government of New Brunswick herein represented by the Minister of Transportation and;

The Government of British Columbia herein represented by the Solicitor General and;

The Government of Manitoba herein represented by the Minister of Highways and Transportation and;

The Government of Prince Edward Island herein represented by the Minister of Transportation and Public Works and;

The Government of Saskatchewan herein represented by the Minister Responsible for Saskatchewan Government Insurance and;

The Government of Alberta herein represented by the Solicitor General and;

The Government of Newfoundland and Labrador herein represented by the Minister of Works, Services and Transportation and;

The Government of Yukon herein represented by the Minister of Community and Transportation Services and;

The Government of Northwest Territories herein represented by the Minister of Transportation.

WHEREAS the jurisdiction which are signatories wish to:

Promote compliance with traffic laws and improve highway safety within their respective borders;
Facilitate, for their respective residents who hold valid drivers' licences, the issuance of a licence by a party jurisdiction to which they are moving;
Pursue compatibility by the implementation of the one driver licence and one driver record concept;
Further highway safety by treating offences for which their residents have been convicted of in the jurisdiction of any other party as if they had been committed in the home jurisdiction for the purposes of updating and maintaining driver's licence records and imposing sanctions;
Strengthen cooperation between the parties so that residents are encouraged to satisfy penalties imposed as a result of convictions for certain traffic offences committed outside their home jurisdictions.

THEREFORE, acting by and through their respective ministers, pursuant to and in conformity with their respective laws, as amended from time to time, they hereby undertake to pursue the courses of action provided for herein.

ARTICLE 1 — DEFINITIONS

For the purposes of this Compact:

"Conviction" includes:

an admission, finding or determination of guilt or the voluntary payment of a fine for an offence mentioned under Article 4 committed in the jurisdiction of one party by a resident of any other party, and "convicted" has a like meaning.

"Home jurisdiction" means:

the jurisdiction that issues a driver's licence and has the authority to suspend, cancel or revoke it, or the jurisdiction of residence in the case of a person who does not hold a driver's licence.

"Jurisdiction of origin" means:

the jurisdiction which has issued the driver's licence that the driver wants to exchange for a licence of the jurisdiction to which the driver has moved.

"Party" means:

a jurisdiction signatory to this Compact.

"Valid licence" means:

a licence that has not expired and is not suspended, cancelled or revoked by the jurisdiction which issued it.

ARTICLE 2 — APPLICATION FOR DRIVER'S LICENCE

2.1 Upon receiving an application for a driver's licence, a party shall, where circumstances warrant, determine whether the applicant has ever held, or is the holder of, a driver's licence issued by any other party.

2.2 A party should not issue a driver's licence to the applicant if:

— The applicant's right to obtain or to hold a driver's licence:

(a) is suspended, cancelled or revoked in the applicant's jurisdiction of origin because of conviction(s) for an offences(s) listed in Article 4; or

— The applicant is the holder of a valid driver's licence issued in another jurisdiction unless the applicant surrenders such licence.

ARTICLE 3 — DRIVER'S LICENCE EXCHANGE

3.1 A person who holds a valid driver's licence issued by a party, having become a resident of another party jurisdiction may exchange such licence without examination for an equivalent licence issued by that jurisdiction. Notwithstanding the preceding provisions, the person may, for cause, be required to successfully complete a medical examination, a vision screening and/or a written and road test, when exchanging the licence.

3.2 The exchanged licence or a report of the surrender thereof shall be forwarded to the jurisdiction of origin which will confirm the validity of that licence and supply to the home jurisdiction the following information, to the extent available:

— the driver's name, former address and date of birth;

— the licence number;

— the class of the licence;

— the expiry date of the licence;

— the restrictions and endorsements which form part of the licence;

— the driving record including collision involvement;

— the suspensions, cancellations or revocations of record, including; the reason for such suspension, cancellation or revocation, and any expiry date thereof.

3.3 Information obtained by the home jurisdiction pursuant to paragraph 3.2 becomes part of the driver's record to the extent permitted under the laws of the home jurisdiction.

3.4 A licence issued pursuant to paragraph 3.1 may be subsequently suspended, cancelled or revoked or restricted, or additional actions may be required based upon information received pursuant to paragraph 3.2.

ARTICLE 4 — REPORTS AND EFFECTS OF CONVICTION

4.1 Where a person licenced or resident in one jurisdiction is convicted of one of the following offences in another party jurisdiction, the latter shall report the conviction to the home jurisdiction or the jurisdiction of residence:

4.1.1 Criminal Code offences

— Offences relating to the operation of a motor vehicle while under the influence of alcohol or drugs, under sections 253, 254 and 255 of the Criminal Code of Canada (R.S.C. (1985), C-46) hereinafter referred to as the "Criminal Code";

— Offences relating to criminal negligence or manslaughter resulting from the operation of a motor vehicle under sections 220, 221, and 236 of the Criminal Code;

— Offences relating to dangerous driving under section 249 of the Criminal Code;

— Offences relating to the failure to stop at the scene of an accident or leaving without reporting, under section 252 of the Criminal Code;

— Offences relating to driving while prohibited, under section 259 of the Criminal Code.

4.1.2 Traffic offences

— Offences relating to driving over a prescribed or posted speed limit;

— Offences relating to the failure to obey a red light or a stop sign;

— Offences relating to the failure to stop at the approach of a school bus with its flashing lights in operation;

— Offences relating to dangerous or careless driving;

— Offences relating to the failure to report an accident to a police officer or peace officer;

— Offences relating to the failure to remain at the scene of an accident;

— Offences relating to driving a motor vehicle in a race or on a bet or wager;

— Offences relating to passing when prohibited.

4.1.3 Municipal offences

— Offences under municipal by-laws or regulations, similar to those offences listed in sub-paragraph 4.1.2.

4.2 Criminal Code offences relating to the operation of motor vehicles and traffic offences not referred to in paragraph 4.1 should also wherever possible be reported by the convicting jurisdiction to the home jurisdiction or the jurisdiction of residence.

4.3 Information reported under paragraphs 4.1 and 4.2 shall be transmitted in a manner mutually agreeable to the parties.

4.4 For the purposes of driver licencing records, each party shall recognize a conviction referred to in paragraph 4.1 of one of its residents in any other party jurisdiction as if the offence had been committed in the home jurisdiction and take appropriate sanctions.

ARTICLE 5 — NON PAYMENT OF FINES [Amended June 2001]

5.1 Where a person is licenced by or resident in a jurisdiction is convicted in another jurisdiction of an offence as reported in accordance with Article 4, and the person fails to pay any fine imposed as a result of such conviction, the jurisdiction in which the offence was committed shall notify the home jurisdiction of such unpaid fine.

5.2 Upon receipt of the notification referred to in paragraph 5.1, the home jurisdiction shall take such action to withhold or suspend the person's driving privileges or such other action as would be taken if the offence for which the person was convicted had occurred in the home jurisdiction and the fine had remained unpaid.

5.3 Action taken by the home jurisdiction on accordance with the provisions in paragraph 5.2 may include denial of vehicle registration.

ARTICLE 6 — ADMINISTRATION OF THER AGREEMENT

6.1 The appointed representatives of Alberta, Ontario and Newfoundland are deemed to be the Founding Administrators of this Compact.

6.2 The benefits and obligations under articles 2, 3, 4 and 5 of this Compact shall come into effect for Alberta, Ontario and Newfoundland on November 1, 1990 or such later date mutually agreed upon by the Founding Administrators.

THEREFORE, we the undersigned do mutually agree to adopt the Canadian Driver Licence Compact

SIGNED THIS 27th DAY OF September 1990

[by the various representatives from the provinces and territories]

(c) Is The Canadian Driver Licence Compact Only A Guideline Or Policy For Either Alberta Or Ontario To Follow?

[69] Empey Case - Compact Application

In Empey v. Alberta (Transportation Safety Board), [2004] A.J. No. 1275 (A.Q.B.), Verville J. considered the effect of the Canadian Driver Licence Compact on Empey, a resident of Alberta, who had not exchanged his Ontario driver licence for an Alberta drivers licence before he was convicted in Alberta of driving "over .08", contrary to s. 253(b) of the Criminal Code. For a sentence, he had received a fine and a one-year driving prohibition, but his driving prohibition had been reduced by the sentencing judge to the minimum period of three months, so that Empey could participate in the Alberta Ignition Interlock Program. When Empey applied to obtain an Alberta drivers licence in exchange for his Ontario licence, Empey was not permitted to do so and had been informed by the Transportation Safety Board of Alberta that he would not be permitted to exchange his Ontario drivers licence for an Alberta licence because his Ontario driver's licence had been under suspension; that when he had received his Criminal Code conviction Empey had not been under Alberta's jurisdiction for licencing drivers; and that his conviction and related driving prohibition and operator licence suspension had been applied to the provincial jurisdiction that he had been under at the time of his criminal conviction, which had been Ontario. Moreover, Empey was also informed that due to his inability to obtain an Alberta Driver's Licence that he would not qualify for participation in the Alberta Ignition Interlock Program.

[70] Board's Decision

At para. 11 of Empey v. Alberta (Transportation Safety Board), Verville J. outlined the Review Board's decision that had denied Empey from exchanging his Ontario driver's licence for an Alberta licence, in which the Board had held that they had no discretion in the matter since s. 51(r) of Alberta's Traffic Safety Act had precluded Empey from "applying for" an Alberta licence during the period that Empey was disqualified for driving in Ontario. In addition, the Board also noted that s. 94 of the Alberta Traffic Safety Act had precluded Empey from driving in Alberta while his Ontario licence was suspended:

The Applicant's counsel requested a review of the decision by way of letter dated March 22, 2004. In a Decision dated May 5, 2004, the Board stated in part:

Even though the offence and conviction took place in Alberta, Mr. Empey was the holder of an Ontario Operator's Licence and subject to Ontario's Operator Licence terms and conditions. As such, the Board should not have accepted the first application. Therefore, your request for a review of this decision is denied.

Mr. Empey must first comply with Ontario's requirements, including acceptance into Ontario's Ignition Interlock Program. Once in their program, Ontario will issue a restricted Operator's Licence to Mr. Empey. He must then apply to the Board for acceptance into the Alberta Ignition Interlock Program.

Once approved, Mr. Empey would then take the approval notice and the Ontario conditional licence to any registry agent in Alberta for issuance of an Alberta conditional licence.

The Board does not have any discretion in this matter. Section 51(r) of the Traffic Safety Act precludes Mr. Empey from applying for an Alberta licence during the period that Mr. Empey is disqualified for driving in Ontario. Likewise, section 94 of the Traffic Safety Act precludes Mr. Empey from driving in Alberta while his Ontario licence is suspended.

[71] Verville's Analysis

Furthermore, in Empey v. Alberta, Verville J. confirmed at paras. 17 and 18, that Alberta and Ontario are signatories and member jurisdictions of the Canadian Driver Licence Compact, which requires that a member jurisdiction under Article 2.2 is obligated not to issue a driver's licence to a motorist if their right to obtain or hold a driver's licence is withdrawn by a member jurisdiction or for the non-payment of fines. In addition, Verville J. explained that under Article 1 of the Compact, the "jurisdiction of record" is defined as the provincial or territorial jurisdiction that had issued the driver's licence to a person or where a person has not been issued a licence, then the jurisdiction of record would be in the province or territory where the person's address is indicated on the charge, offence notice, ticket, or report. Furthermore, Verville J. explained, at paras. 31 to 35, that Empey, who was presently a resident of Alberta, had not exchanged his Ontario operator's licence for an Alberta licence before his Ontario licence had been suspended for the drinking and driving Criminal Code conviction, and that prior to the suspension, Empey had not exchanged his Ontario licence for an Alberta one. Moreover, Verville J. held that at the time Empey had entered his guilty plea to the drinking and driving offence, he was a resident of Alberta, but that the Alberta Transportation Safety Board had been correct in refusing to allow Empey into the Ignition Interlock Program after 3 months, since the Review Board did not have jurisdiction to affect the Ontario suspension and that Empey would have to apply for a conditional reinstatement of his driver's licence in Ontario before he could exchange it for an Alberta licence, since Empey's Ontario driver's licence was still under the jurisdiction of Ontario:

The Canadian Driver Licence Compact, to which Alberta and Ontario are signatories and member jurisdictions, states in part:

2.2 A member jurisdiction shall not issue a licence to the applicant if:

The applicant's right to obtain or hold a licence is withdrawn in any member jurisdiction, as evidenced by the driver control record for convictions specified in Article 4, as well as non-payment of fines; ...

4.4 For the purposes of the driver control record, each member jurisdiction shall recognize a conviction referred to in paragraph 4.1 of a person in any other member jurisdiction as if the offence had been committed in the jurisdiction of record and take appropriate sanctions.

8.2 This Compact is subject to all provisions of law in effect in the member jurisdictions.

Article 1 of the Compact defines "jurisdiction of record" as the jurisdiction that has issued the last licence to a person or if a person has not been issued a licence, the jurisdiction of the person's address indicated on the charge, offence notice, ticket or report.

Similarly the Criminal Code permits portability of such authorization from province to province when there is a change of residence but again it is each province which is at liberty to decide whether or not to enact legislation relating to portability. This has not been done by either Alberta or Ontario which are members of the Compact.

In this case the Applicant's Ontario operator's licence was not exchanged for an Alberta licence prior to the suspension. While I am satisfied that the Applicant was a resident of Alberta at the time he entered his guilty plea it is clear that it is the Ontario licence that was suspended. The fact that he had an Ontario operator's licence is what made the treatment of the Applicant different from that of other Alberta residents.

In the circumstances I am of the view that the Board was correct in refusing to allow the Applicant into the Interlock Program after 3 months as it did not have jurisdiction to affect the Ontario suspension.

While the Applicant submits that the result will or may result in a perpetual suspension of his Ontario licence while he is a resident of Alberta I am not satisfied that this is the case.

It is my view that the Applicant will have to apply (if he has not already done so) for a conditional reinstatement of his licence in Ontario. This in my view could have been done as early as November 7, 2004. I am further of the view that he should then be able to exchange that Ontario licence for an Alberta licence forthwith.

[72] Compact as More Than Policy

Furthermore, an argument had been raised by Empey that the Canadian Driver Licence Compact was merely policy and not relevant, since the Compact had not been legislated into Alberta's Traffic Safety Act. However, without deciding whether the Compact is merely policy, Verville J. certainly treated the Compact as more than just policy and had recited specific provisions and articles of the Compact in his ruling in Empey v. Alberta (Transportation Safety Board), and then at paras. 22, and 26 to 28, accepted the respondent's arguments that Empey could not obtain an Alberta driver's licence while his Ontario licence had been suspended by virtue of s. 31, 51, and 94 of Alberta's Traffic Safety Act, which prohibited a motorist from obtaining an Alberta driver's licence when the motorist's present driver's licence had been suspended by another jurisdiction, such as Ontario:

As for the Compact, the Applicant submits that it is irrelevant as it has not been legislated into the TSA; it merely reflects policy. The Court must determine whether there is a justification in the legislation for the Board's decision.

According to the Respondent's interpretation of the applicable legislation, if the Applicant wants to drive in Alberta, he must have a licence. He cannot obtain a licence in Alberta due to his Ontario suspension: s. 51. The Applicant had a one year prohibition imposed by Caffaro P.C.J., and an Alberta suspension, which Alberta can lift, and an Ontario suspension. Section 31(1) does not allow the Board to lift Ontario's suspension. Sections 31, 51 and 94 of the TSA are clear that so long as he is suspended in Ontario, he cannot obtain an Alberta licence. Section 259 of the Criminal Code deals only with federal prohibitions and the effect of federal prohibitions. It does not purport to alter provincial suspensions or restrict the ability of provinces to suspend. The reduction of the prohibition only applies if the Applicant is registered and is accepted in an Interlock Program, but he has not been accepted.

The Respondent submits that nobody (aside from the Applicant) has suggested that the Applicant will not be able to drive in perpetuity. It is not for the Board to decide what the Ontario authority will do. The Respondent states that the Applicant does not have to return to Ontario in order to complete the requirements for a conditional Ontario licence. The Applicant should pursue the conditional licence in Ontario, and re-apply in Alberta.

The Respondent argued that under the current scheme there cannot be a suspension in one province and a licence in the other. The Applicant's reinstatement of his Ontario licence is a matter for Ontario. It would run counter to Alberta's legislation and Ontario's suspension to issue the Applicant a licence. It would also create confusion in every province the Applicant drives through. It would be unclear how another province should deal with the Applicant if he drove through the province while he was suspended and licensed at the same time.

(d) Exchanging An Ontario Driver's Licence For An Alberta Driver's Licence Under Alberta's Traffic Safety Act, R.S.A. 2000, C. T-6

[73] Alberta Prohibition on Applying for Licence

Under s. 51(r) of Alberta's Traffic Safety Act, R.S.A. 2000, c. T-6, no one in the Province of Alberta is legally permitted to apply for, acquire or attempt to acquire an operator's licence for that person's own use or in that person's name during any period that the person is disqualified from driving a motor vehicle in Alberta, another province or territory of Canada or a state of the United States of America, or during any period for which that person's operator's licence is suspended, or during any period for which that person is disqualified from holding an operator's licence in Alberta, another province or territory of Canada or a state of the United States of America, whether or not the period for which the person's operator's licence was issued has expired:

Operator's licences

51. Except as otherwise permitted under this Act, a person shall not do any of the following:

(a) drive a motor vehicle on a highway unless that person is the holder of a subsisting operator's licence;

(r) apply for, acquire or attempt to acquire an operator's licence for that person's own use or in that person's name

(i) during any period that the person is disqualified from driving a motor vehicle in Alberta, another province or territory of Canada or a state of the United States of America,

(ii) during any period for which that person's operator's licence is suspended, or

(iii) during any period for which that person is disqualified from holding an operator's licence in Alberta, another province or territory of Canada or a state of the United States of America,

whether or not the period for which the person's operator's licence was issued has expired;

[74] Alberta Prohibition on Driving While Suspended Elsewhere

In addition, s. 94 of Alberta's Traffic Safety Act, prohibits anyone in the Province of Alberta from driving a motor vehicle on an Alberta highway while that person's driver's licence or privilege to secure a driver's licence is suspended or cancelled by a jurisdiction outside of Alberta:

94(1) For the purposes of this section, a person is an unauthorized driver if

(a) that person's operator's licence is suspended or cancelled under this Act,

(b) that person is disqualified from driving a motor vehicle in Alberta,

(c) that person's licence or permit to operate a motor vehicle in a jurisdiction outside Alberta is suspended or cancelled, or

(d) that person's privilege to secure a licence or permit to operate a motor vehicle in a jurisdiction outside Alberta is suspended or cancelled.

(2) A person shall not drive a motor vehicle on a highway at any time during which that person is an unauthorized driver.

[75] Application to Defendant's Situation

Ergo, s. 51(r) and s. 94 of the Alberta Traffic Safety Act, supports the defendant's contention that he could not have exchanged his Ontario driver's licence for an Alberta licence if his Ontario licence had been under suspension. However, neither s. 51(r) or s. 94 of the Alberta Traffic Safety Act prohibits the Alberta Ministry from exchanging the defendant's Ontario licence for the Alberta licence on September 28, 2009, where the defendant has outstanding H.T.A. tickets or charges or fines in Ontario that are not in default or where there have not been convictions or fines entered on those outstanding H.T.A. tickets or charges.

(i) E-mail from the Ontario Ministry of Transportation stating the defendant's driver's licence had been cancelled on September 28, 2009 (Exhibit #2)

[76] Exhibit #2 - Cancellation Confirmation

The defendant provided a copy of an e-mail he testified to having received from the Ontario Ministry of Transportation on June 29, 2015, which was then entered as Exhibit #2, as evidence that confirms the status of the defendant's driver's licence numbered [driver's licence number removed for privacy]. In addition, the defendant said he had paid a fee for the letter, but did not pay the higher fee to obtain a certified letter from the Ontario Ministry of Transportation. Furthermore, in the e-mail which is produced below, it indicates that John Vu, Enquiry Analyst, from the Licensing Administration and Support Office of the Ministry of Transportation had sent the e-mail to the defendant, and who also wrote that according to the ministry computer records the defendant's driver's licence had been cancelled on September 28, 2009, when it had been exchanged for an Alberta driver's licence:

Dear Mr. Osman:

This refers to your letter date June 16, 2015, requesting for a confirmation of status of the above-referenced driver's licence.

According to ministry computer records, this licence was cancelled on September 28, 2009 when it was exchanged for an Alberta driver's licence.

I hope this information is helpful.

Sincerely,

"signature"

John Vu Enquiry Analyst

(e) The Defendant Was Required To Renew His Alberta Driver's Licence Every Two Years

[77] Renewal Requirements

Once again, to prove that he had no knowledge of and that he had not been made aware that his Ontario driver's licence had been suspended, the defendant had testified that because he was over 45 years of age and a professional truck driver, he had been legally required to renew his class 1 Alberta's driver's licence every 2 years, and as such, had renewed without any difficulty his Alberta licence 3 or 4 times between September 28, 2009 and November 26, 2014, and without being informed by the Alberta Ministry that he could not renew his Alberta licence because his Ontario driver's licence had been suspended on February 12, 2010.

[78] Alberta Regulation Confirmation

The defendant's testimony that he had to legally renew his class 1 Alberta licence every two years is confirmed by s. 36(3) of the Operator Licensing And Vehicle Control Regulation, Alberta Regulation 320/2002:

Classes 1, 2, 4 expiry

36(1). A Class 1, 2 or 4 operator's licence expires

(a) if the operator's licence is the person's first one and the applicant's next birthday is 6 months or less after the date of the application, 5 years from the applicant's next birthday,

(b) if the operator's licence is the person's first one and the applicant's next birthday is more than 6 months after the date of the application, 4 years from the applicant's next birthday, and

(c) if the operator's licence is issued as a renewal of a previous operator's licence, 5 years from the expiry date of the operator's licence being renewed.

(3) Notwithstanding subsection (1), a Class 1, 2 or 4 operator's licence issued to a person who is 45 years old or older expires

(a) if the operator's licence is the person's first one and the applicant's next birthday is 6 months or less after the date of the application, 2 years from the applicant's next birthday,

(b) if the operator's licence is the person's first one and the applicant's next birthday is more than 6 months after the date of the application, one year from the applicant's next birthday, and

(c) if the operator's licence is issued as a renewal of a previous operator's licence, 2 years from the expiry date of the operator's licence being renewed.

[79] Actual Number of Renewals

However, according to s. 36(3)(b) of the Alberta regulation, the defendant's first Alberta driver's licence that had been issued on September 28, 2009, would have expired on his birthday of June 24, 2011, and that his renewed Alberta licence would have next expired two years later on June 24, 2013, and then two years later on June 24, 2015. This would mean that the defendant's Alberta driver's licence would have been only required by the Alberta regulation to have been renewed on only two occasions before he was charged on November 26, 2014, and not the 3 or 4 renewals that the defendant had testified to having done.

[80] Confirmation of Non-Suspension at Exchange

In addition, in light of s. 51(r) of the Alberta Traffic Safety Act which prohibits anyone from applying for, acquiring or attempting to acquire an Alberta driver's licence for their own name or use during any period the person is disqualified from driving a motor vehicle in Alberta or any other province or territory in Canada, or their driver's licence is suspended, or the person is disqualified from holding a driver's licence in Alberta or any other province or territory in Canada whether or not the person's driver's licence has expired, and the defendant being able to obtain an Alberta driver's licence in exchange for his Ontario licence on September 28, 2009, would appear to confirm the defendant's contention that his Ontario licence had not been invalid nor under suspension when he had first obtained his Alberta driver's licence.

[81] Confirmation of Non-Suspension During Renewals

Furthermore, s. 51(r) of the Alberta Traffic Safety Act also appears to confirm the defendant's contention that he would not have been able to renew his Alberta driver's license after February 12, 2010, if his Ontario licence had been suspended, otherwise he would have been informed by or been made aware before November 26, 2014, by the Alberta Ministry that he could not renew his Alberta licence because of the suspension of his Ontario driver's licence.

(f) The Defendant Had Been Required To File A Change Of Address With The Ontario Ministry

[82] Address Change Requirement

It is also important to be bear in mind the existence of s. 33(1) of the Ontario Driver's Licence Regulation, O. Reg. 340/92, which is a regulation that legally obligated the defendant, as the holder of a valid Ontario driver's licence, to provide the Ontario Ministry of Transportation with his new address within six days after he had changed his address from his 2560 St. Clair Avenue W., in Toronto to an Alberta address. To fulfill that legal requirement, the defendant had been compelled to give notice of his change of address to the Ontario Ministry by giving his former address, the present address, and the number of his driver's licence, by sending the notice to the Ministry by registered mail or by filing with the Ministry a notice in writing or electronically in a format designated by the Ministry:

33(1) The holder of a driver's licence who changes his or her address shall, within six days after the change, send by registered mail or have filed with the Ministry a notice in writing, or electronically in a format designated by the Ministry, of the change giving the former address, the present address and the number of his or her driver's licence.

[83] Defendant's Failure to Notify

Therefore, even though the defendant had moved to Alberta he was still legally required to inform the Ontario Ministry of Transportation of his new Alberta address within 6 days of obtaining that Alberta address, while still a holder of an Ontario driver's licence. Likewise, before the defendant's Ontario driver's licence had been cancelled he had been legally required to still notify the Ontario Ministry of his Alberta address, and that it was not necessarily the Alberta Ministry's obligation to provide the defendant's Alberta address when the Alberta Ministry had notified the Ontario Ministry of the exchange or the surrender of the defendant's Ontario licence to the Alberta Ministry.

[84] Timing of Address Change Obligation

Moreover, the cancellation of the defendant's Ontario licence would have occurred sequentially after the defendant had surrendered his Ontario licence to the Alberta Ministry to exchange it for an Alberta licence. Moreover, to obtain an Alberta licence he would have had to first have an Alberta address, and as such, the defendant would have had an Alberta address for some period before his Ontario licence would have been surrendered to the Alberta Ministry or cancelled by the Ontario Ministry. Furthermore, before issuing the Alberta driver's licence to the defendant, the Alberta Ministry would have required proof from the defendant of his residency in Alberta, such as a utility bill with his name and Alberta address on it. In order for the defendant to obtain this proof of an Alberta residence, the defendant would have required some period of time to elapse before such a document could have been obtained by the defendant. And, since the defendant would have had to have this Alberta address for some time before he could have exchanged his Ontario driver's licence for the Alberta licence, then the defendant's Ontario licence would have still be valid during that period, which would have then legally required the defendant during the period between obtaining an Alberta address and his Ontario driver's licence being cancelled, to notify the Ontario Ministry of his new Alberta address under s. 33(1) of O. Reg. 340/92, within six days of his change of address.

[85] Compact Obligations for Unpaid Fines

Under Articles 5.1 and 5.2 of the Canadian Driver Licence Compact, the Ontario Ministry had been only required to notify the Alberta Ministry about the defendant's unpaid fines in respect to driving offences committed by the defendant in Ontario if they had been for driving offences that are specifically listed under Article 4 of the Compact (Criminal Code and more serious traffic offences), and once the Alberta Ministry had received notification from the Ontario Ministry of the unpaid fines for these specific driving offences, then the Alberta Ministry would have been obligated or required to take such action to suspend the person's driving privileges or such other action as would be taken if the driving offence for which the person was convicted for in Ontario had occurred in Alberta and the fine had remained unpaid:

[86] Limited Scope of Notification Obligation

Although Articles 5.1 and 5.2 would assist or support the defendant's contention that he would not have been aware of the Ontario suspension, since the Alberta Ministry had renewed his Alberta driver's licence on two occasions before he was charged on November 26, 2014, and had not withheld renewing his Alberta licence for the unpaid fines from Ontario, nor did they inform him that his Alberta licence could not be renewed because of the suspension for defaulted fines in Ontario. However, these particular Articles of the Canadian Driver Licence Compact only support the defendant's contention about being unaware of the Ontario suspension if the Ontario Ministry had actually notified the Alberta Ministry about the defendant's unpaid fines. Then, only after the Alberta Ministry had received notification of the unpaid fines from Ontario would the Alberta Ministry then have been obligated to take such action to suspend the person's driving privileges or such other action as would be taken if the offence for which the person was convicted of in Ontario had occurred in Alberta and the fine had remained unpaid. However, since Article 5.1 only obligated the Ontario Ministry to notify the Alberta Ministry about the defendant's unpaid fines in respect to driving offences that are specifically listed in Article 4 of the Compact, then evidence is required on whether the H.T.A. tickets or charges which led to the defaulted fines had been for driving or traffic offences that are specifically listed under Article 4.

[87] Possible Explanation for Renewals

Furthermore, the opposite is also possibly true that the Alberta Ministry in renewing the defendant's Alberta licence on two occasions had not been notified by the Ontario Ministry about the defendant's unpaid fines in Ontario or the defendant's Ontario suspension, since the H.T.A. tickets or charges that led to the defaulted fines were not driving or traffic offences that were specifically listed in Article 4 of the Compact, otherwise his Alberta licence would not have been renewed.

[88] Lack of Evidence on Offence Type

However, no evidence has been presented on whether the H.T.A. tickets or charges on which the defendant had been convicted on that led to the unpaid fines, had been for traffic offences that are specifically listed in Article 4.1.2 of the Canadian Driver Licence Compact.

[89] Possible Lack of Notification

Equally, just because there is legislation enacted in Alberta, namely s. 51(r) and s. 94(1) of the Alberta Traffic Safety Act that would prevent the defendant from being able to renew his Alberta licence if his Ontario licence had been suspended, it does not mean that the Alberta Ministry had actually been informed by the Ontario Ministry of the defendant's Ontario suspension. Therefore, the Alberta Ministry may not have known about the defendant's Ontario licence being under suspension, which would have then allowed the defendant to renew his Alberta licence on two occasions.

Furthermore, the Ontario Ministry does not necessarily notify other provinces or territories about all fines that are owed to the Ontario Ministry by out-of-province drivers in light of a report prepared in 2005 by the Ontario Auditor General, which had made recommendations to the Ontario government about interprovincial agreements in respect to driver's licences. See the 2005 Annual Report of the Office of the Auditor General of Ontario in respect to Driver Licencing by The Ministry of Transportation at pp. 127 to 128 of Chapter 3, section 3.06, which highlighted that the Ontario Ministry has had difficulties maintaining a very old and complex computer information system and that while there a number of information-sharing arrangements in place, licences from a number of jurisdictions had been exchanged without transferring the driver's conviction record from or validating the driver's status in the other jurisdiction:

We concluded that the Ministry needs to strengthen its systems and procedures if it is to ensure that only legitimate and safe drivers are licensed to drive in Ontario. The difficulties of maintaining a very old and complex computer information system and improving its ability to meet users' needs have undoubtedly contributed to the Ministry's challenges in this regard. We noted that:

• While a number of information-sharing arrangements are in place, licences from a number of jurisdictions were exchanged without transferring the driver's conviction record from or validating the driver's status in the other jurisdiction. In 2004, the Ministry exchanged 30,000 out-of-province licences (45% of all such licences it exchanged) without such record transfers. There is also a risk that Ontario residents who fail multiple road tests in Ontario can obtain licences through the out-of-province licence exchange agreements without proof that they have completed a successful road test, since other jurisdictions may have issued a licence with full driving privileges on presentation of an Ontario novice-class licence. For instance, one driver failed the Ontario road test 15 times but received an Ontario driver's licence by subsequently presenting a licence from another jurisdiction.

• Driving-related criminal records for young offenders were maintained manually and were error-prone. For example, in our sample of 40 former young offenders who should by law have been given lifetime suspensions based on their driving records, the suspension had not been imposed for seven (17.5%) of them.

We also concluded that improvements were needed to protect the integrity and confidentiality of drivers' personal information:

• Although the Ministry relies on the driver records maintained in its Driver System to trigger disciplinary action when required, procedures for ensuring that all driving-related convictions were attributed to the responsible driver were insufficient. We noted extensive delays in following up on cases in which a conviction notice could not be matched to a driver record. Efforts made to resolve these cases were often inadequate, and unresolved files were destroyed without proper approval.

• Since our audit of road user safety in 2001, the Ministry has improved its timeliness in processing medical reports and is now meeting its related performance benchmark.

• Security administration processes to limit the number of privileged users, protect data transmission, and monitor system access were not effectively implemented.

• The Driver System did not always calculate demerit points accurately; accordingly, driver suspensions were not generated automatically as intended. Manual intervention was regularly needed to overcome this system malfunction, and this led to errors in updating driver records.

• The driver examination service provider was not complying with ministry security requirements when hiring staff who have access to confidential driver records, and the Ministry had not developed adequate policies and procedures to deal with prospective and existing employees with criminal records. We noted instances where staff had criminal records yet no action was taken, and, in 25% of the new-hire files we reviewed, the required criminal check had not been done.

[91] Inter-provincial Record Exchange

In addition, at pp. 131 to 132 of the 2005 Annual Report of the Office of the Auditor General of Ontario in respect to Driver Licencing by The Ministry of Transportation, reference has been to an Inter-provincial Record Exchange (IRE) where inquiries can be made for verifying the current status of a motorist's driver's licence in the jurisdiction that issued the licence to determine if it has been suspended or valid. In addition, the Report also mentions that Ontario has reciprocal agreements with 12 other North American jurisdictions in respect to a "Non-resident Violators" agreement, where each jurisdiction agrees that the records for all driving-related criminal convictions within the past 10 years and for "eight" other types of driving offences committed by the driver within the past two years, are to be transferred from the jurisdiction where the motorist had been convicted and would form part of the driver's Ontario driving records:

Figure 2 outlines the jurisdictions with which Ontario has reciprocal agreements and summarizes additional procedures (discussed further below) for verifying the status and driving history of drivers coming from some of those jurisdictions.

Before granting a licence exchange for drivers from other provinces and territories and from most U.S. states, driver examination centres make an inquiry through a network known as the Inter-provincial Record Exchange (IRE) to verify the current status of the applicant's licence in the jurisdiction that issued it. If the applicant's licence is suspended or invalid, either the licence exchange application is rejected or additional support is required before an exchange is approved. However, many foreign jurisdictions are not connected to the IRE; hence, the Ministry cannot determine whether the licence of a driver from such a jurisdiction is suspended or even valid at the time of the exchange application. For people coming from these jurisdictions, the issuance of an Ontario driver's licence is approved based solely on the applicant's having presented an out-of-province driver's licence that has not expired. Our analysis indicated that approximately 8,000 (11%) of the licences exchanged in 2004 fell into this category.

Twelve North American jurisdictions have also entered into a "Non-resident Violators Agreement" with Ontario. Under such an agreement, the records for all driving-related criminal convictions within the past 10 years, and for eight other types of driving offences committed by the driver within the past two years, are transferred from the original jurisdiction and form part of these drivers' Ontario driving records. These eight types of offences are considered the more serious violations of Ontario's Highway Traffic Act, such as failure to remain at the scene of an accident, careless driving, racing, exceeding the speed limit by 50 kilometres per hour or more, failure to obey a stop sign or signal light, and failure to stop for a school bus. However, for all other reciprocal jurisdictions, there is no such transferral mechanism in place: drivers from those jurisdictions start with a "clean slate" in Ontario. Our data analysis indicated that almost 30,000 (45%) of the out-of-province licences exchanged in 2004 were done on this basis.

Ontario has also entered into a Memorandum of Understanding (MOU) on licence exchanges with both the United Kingdom and France. Under these memoranda, Ontario is required to notify the home jurisdiction of exchange applications and to obtain verification from them of the validity of the driver's licence presented. However, we noted that although these agreements were signed in early 2004 and over 6,000 driver's licences from these jurisdictions had been exchanged by the end of January 2005, the Ministry had not yet requested the verifications as per these agreements.

[92] Figure 2 - Reciprocal Agreements

Furthermore, a table has been prepared and labelled as Figure 2 on p. 132 of the 2005 Report of The Auditor General of Ontario in respect to Driving Licences that sets out which jurisdictions have reciprocal agreements with Ontario, which jurisdictions participate in the interprovincial record exchange with Ontario, which jurisdictions have non-resident violators agreements with Ontario, and which jurisdictions have entered into a Memorandum of Understanding for validity checks with Ontario. The table reveals that Alberta and Ontario have a reciprocal agreements with each other, participate in the interprovincial record exchange, and have a non-resident violators agreements with each other:

Figure 2: Out-of-province Licence Exchange Agreements and Procedures

	Reciprocal Agreement	Inter-provincial Record Exchange	Non-resident Violators Agreement	MOU with Requirement for Validity Checks
Other Canadian jurisdictions	P	P	P Except: • British Columbia • Nunavut Territory
United States	P	P Except: • Arizona • District of Columbia • Illinois • New Jersey • Vermont	P In place only with: • Michigan • New York
Austria	P
France	P			P
Germany	P
Japan	P
Korea	P
Switzerland	P
United Kingdom	P			P
Canadian Forces–Europe	P

P = Existence of agreement or record exchange with Ontario

[93] Auditor General Recommendations

Furthermore, at pp. 133 to 134 of the 2005 Auditor General's Report, it was recommended that for the Ontario Ministry of Transportation to ensure that only authorized and capable drivers with out-of-province licences obtain an Ontario driver's licence, the Ministry should comply with existing exchange agreements and expand the scope of its out-of-province licence exchange program to include the sharing of conviction records of serious driving or traffic offences with more jurisdictions:

RECOMMENDATION

To ensure that only authorized and capable drivers with out-of-province licences obtain an Ontario driver's licence, the Ministry should:

• comply with existing exchange agreements and expand the scope of its out-of-province licence exchange program to include the sharing of serious conviction records with more jurisdictions;

MINISTRY RESPONSE

The Ministry shares the Auditor General's concern about the need to safeguard the integrity of the out-of-province driver's licence exchange process. The Ministry has a sound licence exchange system and has taken action to improve the security of its driver's licence, and further improvements to the driver's licence card will be made in the next 18 months.

In collaboration with other jurisdictions, the Ministry will explore the feasibility of exchanging serious conviction information where such information is not already exchanged. In fall 2005, the Ministry will begin exploring the feasibility of requiring a certified driver's licence abstract for all out-of-province exchanges.

The Ministry is currently reviewing the issue of verifying existing exchanged U.K. and France licences and expects to begin addressing this issue in late 2005. If the Ministry is advised that an exchanged licence is suspended, the Ontario licence will be revoked.

All future reciprocity agreements with jurisdictions outside of Canada and the United States, as well as those already signed with France and the United Kingdom, require that the Ministry verify the validity of the driver's licence presented for exchange. Verification will take place after the issuance of an Ontario licence. If the exchanged licence is found to be suspended or fraudulent, the Ontario licence will be cancelled.

Ontario's current policy with respect to exchanging out-of-province licences for individuals who have previously failed Ontario road tests addresses the concern that drivers may be circumventing Ontario's graduated licensing system. Novice drivers surrendering a licence with less than 24 months' experience from a reciprocating jurisdiction will be issued a novice-class licence. The driver will be expected to pass Ontario's G2 exit test to qualify for a full G licence.

[94] 2007 Auditor General Follow-up

Furthermore, in the 2007 Auditor General of Ontario Report that was tabled in the Legislative Assembly of Ontario on December 11, 2007, referred to as the "Driver Licencing Follow-up to VFM Section 3.06, 2005 Annual Report for Ministry of Transportation, at pp. 369 to 370 of Chapter 4, section 4.06, the Auditor General repeated that their concern was still with exchanging information with other jurisdictions on serious driving or traffic offences convictions, but not for all traffic offences:

Current Status of Recommendations

On the basis of information provided by the Ministry of Transportation, we concluded that the Ministry has taken some action on all of our recommendations and has made significant progress on several. For the most part, either system changes had been implemented to address our concerns fully or partially, or implementation was under way. One ongoing area of concern that affects all of North America is that of drivers who continue to drive with suspended licences: at the time of our follow-up, the Ministry was still at the research stage in developing effective mitigation strategies for such drivers. The status of actions taken on each recommendation is described below.

Out-of-province Licence Exchange

Recommendation

To ensure that only authorized and capable drivers with out-of-province licences obtain an Ontario driver's licence, the Ministry should:

• comply with existing exchange agreements and expand the scope of its out-of-province licence exchange program to include the sharing of serious conviction records with more jurisdictions;

• consider requesting proof of successful road test completion before approving a licence exchange for applicants who have failed multiple road tests in Ontario; and

• ensure that driver examination centre management complies with ministry policy and reviews all out-of-province licence exchange applications before an Ontario driver's licence is issued.

Current Status

The Ministry informed us that, at the time of our follow-up, preliminary analysis had been completed regarding the possible exchange of serious-conviction information where that was not already taking place. In this regard, it is working with the Canadian Council of Motor Transport Administrators to develop a Canadian Driver Licence Agreement that would encompass the exchange of conviction information. While the proposed agreement had been drafted at the time of our follow-up, the timeline for signing it had not been determined.

To ensure that existing exchange agreements are complied with, the Ministry has also provided issuers with a number of updated policies and guidelines that are intended to clarify procedures for dealing with driver's licence applications from out-of-country applicants and applicants licensed in a jurisdiction that does not have a reciprocal agreement with Ontario.

With respect to requesting proof of successful road test completion for applicants who have failed multiple road tests in Ontario, the Ministry informed us that it considered this recommendation but decided not to implement it. The Ministry reiterated its position that it recognizes an out-of-province licence as proof of successful completion of written and road tests, that most Canadian and many U.S. jurisdictions have graduated driver's licences, and that current exchange agreements provide reasonable assurance that only equivalent classes of licence will be exchanged. For example, any novice drivers with less than 24 months' experience exchanging a licence from a reciprocating jurisdiction would first need to pass Ontario's G2 exit test to qualify for a full G licence.

In late 2005, the Ministry also issued a bulletin to all driver examination centres clarifying its policy and reminding issuers that centre supervisors need to approve all out-of-province and out-of-country driver's licence exchanges.

Ergo, not all convictions for all traffic offences committed in Ontario are required to be shared among provinces or territories, since only convictions on the more serious traffic offences are actually shared.

[96] No Evidence of Compact Obligation

In addition, no evidence has been presented which proves that the Ontario Ministry had been obligated under the Canadian Driver Licence Compact to provide any information to the Alberta Ministry about the defendant's suspension of his Ontario driver's licence for unpaid fines on February 12, 2010. This will be further elaborated on in the parts that follow.

(h) Was it reasonable for the defendant to be unaware of the Ontario suspension?

[97] Reasonableness of Lack of Actual Notice

Without considering the defendant's role in dealing with his H.T.A. tickets or charges that led to the unpaid fines, it would not have been unreasonable that the defendant did not receive the actual notice of suspension as he had already moved from his Toronto address 5 or 6 months before his Ontario driver's licence had been suspended on February 12, 2010, especially since the defendant had not arranged to have his mail forwarded from his old Toronto address to his new Alberta address, nor had he provided his new Alberta address to the Ontario Ministry of Transportation or the courthouse that had jurisdiction over those H.T.A. tickets or charges.

[98] Reasonableness of Lack of Knowledge

Furthermore, it was also not unreasonable that the defendant would not have any knowledge or been made unaware that his Ontario licence had been suspended if the defendant had been able to renew his Alberta licence on several occasions since obtaining his Alberta licence, especially when the Alberta Ministry did not prevent the defendant from renewing his Alberta licence because of his Ontario suspension.

[99] Reasonableness of Belief About Fines

Moreover, it also would not be unreasonable for the defendant to believe that all of his parking tickets and outstanding fines had been cleared before he moved to Alberta, if all of his outstanding H.T.A. tickets or charges had been properly dealt with by him.

[100] Lack of Documentary Evidence

However, the defendant has failed to produce any documentary evidence to support his testimony that the H.T.A. tickets or charges, which led to the defaulted fines, had gone back to the years 2007 and 2008, which he could have easily provided since the defendant had supp osedly paid off those defaulted fines in January of 2015. Moreover, there had been no documents provided to establish what those particular H.T.A. tickets or charges that led to the unpaid fines had been for, when those tickets or charges were issued, when the convictions and fines were entered on those particular H.T.A. tickets or charges, and when those fines were in default. And, if they did go back to 2007 and 2008, then certified Ministry or certified court documents would have shown and supported the defendant's contention that the H.T.A. tickets had been issued well before the defendant had attended at the Toronto courthouse in 2009 to pay off his parking tickets and outstanding fines and to support his contention that he had done all that he could with all of his H.T.A. tickets or charges before moving to Alberta.

[101] Lack of Evidence on Conviction Dates

In addition, the defendant surmises that he may have been convicted of those H.T.A. tickets or charges after he had already been residing in Alberta. However, there is no evidence which established the date the defendant had been charged or the date he had been convicted of those H.T.A. tickets or charges that resulted in the unpaid fines.

[102] Inference of Improper Dealing

On the other hand, since there had been unpaid fines that led to the defendant's suspension, this would also reasonably infer that the defendant had not properly dealt with all of his H.T.A. tickets or charges before he had moved to Alberta.

[103] Failure to Prove Due Diligence

Therefore, the defendant did not prove on a balance of probabilities that he had not been at fault or not negligent in dealing with all of his H.T.A. tickets or charges. In addition, the defendant did not arrange with Canada Post or with anyone else to forward his mail from his old Toronto address to his new Alberta address, nor did the defendant provide his new Alberta address to the Ontario Ministry or to the courthouse that had jurisdiction over the H.T.A. tickets or charges that led to the unpaid fines. Therefore, the defendant has not proven on a balance of probabilities that he has taken all reasonable steps in the circumstances to avoid committing the offence of drive while under suspension.

(i) Did The Alberta Ministry Have To Notify The Ontario Ministry Of The Defendant's New Alberta Address Under The Canadian Driver Licence Compact?

[104] Article 3.2 Analysis

Under Article 3.2 of the Canadian Driver Licence Compact, on the date of September 28, 2009, when the defendant had surrendered his Ontario driver's licence to the Alberta Ministry in exchange for the Alberta driver's licence, the Alberta Ministry was obligated or required to either forward the defendant's Ontario driver's licence or a report of the surrender of the Ontario licence to the Ontario Ministry, whereby the Ontario Ministry was then obligated or required to inform the Alberta Ministry of the validity of the defendant's Ontario driver's licence and to supply the Alberta Ministry with particular information about the defendant, the driving record of the defendant, and whether the defendant's licence had been suspended and the reason for the suspension, so that the defendant's Ontario driving record would become part of the defendant's Alberta driving record permitted by Alberta law. Moreover, under Article 3.4, the Ontario information supplied to the Alberta Ministry in respect to the exchange of licences could then be used by the Alberta Ministry to suspend, cancel, or revoke the defendant's newly issued Alberta licence. However, there is no reciprocal requirement set out in the Driver Licence Exchange section of Article 3 of the Canadian Driver Licence Compact obligating the Alberta Ministry to provide the Ontario Ministry with the defendant's new Alberta address when the defendant's Ontario licence was surrendered and exchanged for an Alberta licence:

— the driver's name, former address and date of birth;

— the licence number;

— the class of the licence;

— the expiry date of the licence;

— the restrictions and endorsements which form part of the licence;

— the driving record including collision involvement;

— the suspensions, cancellations or revocations of record, including; the reason for such suspension, cancellation or revocation, and any expiry date thereof.

3.3 Information obtained by the home jurisdiction pursuant to paragraph 3.2 becomes part of the driver's record to the extent permitted under the laws of the home jurisdiction.

(j) Did The Ontario Ministry Have To Notify The Alberta Ministry About The Defendant's H.T.A. Convictions That Resulted In The Unpaid Fines Under The Canadian Driver Licence Compact?

[105] Article 4 Obligations

Article 4 of the Canadian Driver Licence Compact covers the obligation of the provinces and territories that are signatories to the Compact in reporting convictions of driving offences committed in their province and territory to the jurisdiction where the convicted motorist resides or is licenced to drive a motor vehicle in Canada.

[106] Conditional Reporting Obligation

If the defendant had been convicted in Ontario of an H.T.A. offence or charge after September 28, 2009, when the defendant would have been residing in Alberta and licensed by Alberta to operate a motor vehicle and when his Ontario driver's licence had already been cancelled, then the Ontario Ministry would have been required under Article 4.1 to notify the Alberta Ministry of that conviction if the conviction had been for a traffic offence that is specifically listed in Article 4.1.2. Furthermore, by virtue of Article 4.4, if the Ontario Ministry informs the Alberta Ministry of any driving offence conviction recorded against the defendant under Article 4.1, then the Alberta Ministry is required under the Compact for the purposes of driver licencing records to recognize a conviction of the defendant for a driving offence specifically listed in Article 4.1 that had been entered against the defendant in Ontario, as if the offence had been committed in Alberta and to also take appropriate sanctions against the defendant:

4.1.1 Criminal Code offences

— Offences relating to criminal negligence or manslaughter resulting from the operation of a motor vehicle under sections 220, 221, and 236 of the Criminal Code;

— Offences relating to dangerous driving under section 249 of the Criminal Code;

— Offences relating to the failure to stop at the scene of an accident or leaving without reporting, under section 252 of the Criminal Code;

— Offences relating to driving while prohibited, under section 259 of the Criminal Code.

4.1.2 Traffic offences

— Offences relating to driving over a prescribed or posted speed limit;

— Offences relating to the failure to obey a red light or a stop sign;

— Offences relating to the failure to stop at the approach of a school bus with its flashing lights in operation;

— Offences relating to dangerous or careless driving;

— Offences relating to the failure to report an accident to a police officer or peace officer;

— Offences relating to the failure to remain at the scene of an accident;

— Offences relating to driving a motor vehicle in a race or on a bet or wager;

— Offences relating to passing when prohibited.

4.1.3 Municipal offences

— Offences under municipal by-laws or regulations, similar to those offences listed in sub-paragraph 4.1.2.

4.3 Information reported under paragraphs 4.1 and 4.2 shall be transmitted in a manner mutually agreeable to the parties.

[107] Timing of Convictions

Moreover, since the defendant had been able to obtain an Alberta driver's licence on September 28, 2009, in face of s. 51(r) of the Alberta Traffic Safety Act, then the defendant's Ontario driver's licence would not have been suspended at that point, and any conviction for a traffic offence committed in Ontario that led to the defaulted fines, which caused the defendant's Ontario licence to be suspended, would have had to occur after September 28, 2009, when he had first obtained the Alberta licence, but before February 12, 2010, when his Ontario licence was suspended for the unpaid fines.

[108] No Evidence of Subsequent Suspension

As well, there has been no evidence presented that would suggest that the defendant's Alberta licence had been subsequently suspended, canceled or revoked by the Alberta Ministry based on the information that would have provided to them by the Ontario Ministry when the Ontario licence had been surrendered on September 28, 2009, and forwarded or reported to the Ontario Ministry as required under Article 3.4.

[109] No Evidence of Listed Offences

In addition, there has been no evidence presented that those particular H.T.A. offences which led to the defaulted fines for the defendant had been for traffic offences specifically listed in Article 4.1.2 of the Canadian Driver Licence Compact. Moreover, under Article 4.1, the Ontario Ministry was not obligated to report to the Alberta Ministry those convictions of the defendant that had led to those unpaid fines, unless they were for traffic offences specifically listed under Article 4.1.2.

[110] Possible Explanation for Renewals

Ergo, if those H.T.A. tickets or charges which resulted in the unpaid fines had been for traffic offences that were not specifically listed in Article 4.1.2, then the Ontario Ministry would not have obligated to report those particular convictions to the Alberta Ministry and that could explain why the defendant had been able to renew his Alberta licence on two occasions between September 28, 2009, and November 26, 2014, since the Alberta Ministry would not have been informed about those convictions that had caused the defendant's Ontario suspension.

(k) Did The Ontario Ministry Have To Notify The Alberta Ministry About The Defendant's Unpaid Fines Under The Canadian Driver Licence Compact?

[111] Article 5 Obligations

Similar to the Ontario Ministry's obligation under the Canadian Driver Licence Compact to report the defendant's convictions for driving offences committed in Ontario that are specifically listed in Article 4.1 to the Alberta Ministry, the Ontario Ministry is not obligated under Article 5 to inform the Alberta Ministry about the defendant's unpaid fines incurred in Ontario, unless those unpaid fines are also in respect to convictions for traffic offences specifically listed in Article 4.1.2. Therefore, if the unpaid fines had been for traffic offences specifically listed in Article 4.1.2 and those unpaid fines are reported by the Ontario Ministry to the Alberta Ministry, then the Alberta Ministry would have been obligated under Article 5.2 to take such action to withhold or suspend the defendant's driving privileges or such other action as would be taken if the offence for which the defendant had been convicted in Ontario had occurred in Alberta and the fine had remained unpaid:

5.3 Action taken by the home jurisdiction on accordance with the provisions in paragraph 5.2 may include denial of vehicle registration.

[112] Possible Explanation

And, because there has been no evidence presented to determine whether the convictions for the defendant's H.T.A. tickets or charges that resulted in the unpaid fines had been for traffic offences specifically listed in Article 4.1.2 of the Canadian Driver Licence Compact, then the same situation that had applied to the defendant's convictions would also apply. In other words, if the unpaid fines were in respect to traffic offences that were not specifically listed in Article 4.1.2, then the Ontario Ministry was not obligated under Article 5.1 to report the defendant's unpaid fines incurred in Ontario to the Alberta Ministry. Consequently, if the Ontario Ministry had not been obligated to report the defendant's unpaid fines to the Alberta Ministry, this in turn could also explain why the defendant had been able to renew his Alberta licence on two occasions.

(l) Was The Ontario Ministry Obligated To Inform The Alberta Ministry That The Defendant's Ontario Driver's Licence Had Been Suspended On February 12, 2010?

[113] Compact Limitations

There is nothing specific in the Canadian Driver's Licence Compact, about what the Ontario Ministry had been obligated to do when the defendant's Ontario driver's licence or privilege to drive a motor vehicle in Ontario had been suspended on February 12, 2010, after the defendant's driver's licence had already been cancelled on September 28, 2009, and the defendant had obtained an Alberta driver's licence also on September 28, 2009. The Compact only directs what Alberta and Ontario had been obligated to do if the defendant's driver's licence had been suspended prior to the defendant exchanging his Ontario licence for the Alberta licence. In that scenario, when the defendant first applied for an Alberta driver's licence, the Alberta Ministry under Article 2.1 was obligated, where circumstances warranted, to determine if the defendant had ever held or is the holder of a driver's licence from another province or territory in Canada and not to issue an Alberta driver's licence to the defendant if his Ontario driver's licence had been suspended, cancelled or revoked because of driving offences specifically listed in Article 4, nor was the Alberta Ministry to issue an Alberta licence to the defendant unless the defendant had surrendered his Ontario driver's licence to them:

2.2 A party should not issue a driver's licence to the applicant if:

— The applicant's right to obtain or to hold a driver's licence:

(a) is suspended, cancelled or revoked in the applicant's jurisdiction of origin because of conviction(s) for an offences(s) listed in Article 4; or

— The applicant is the holder of a valid driver's licence issued in another jurisdiction unless the applicant surrenders such licence.

[114] Conditional Obligation

However, if the suspension of the defendant's Ontario licence had been for unpaid fines for traffic offences specifically listed under Article 4.1.2, the Ontario Ministry would have been obligated to notify the Alberta Ministry of the convictions and the unpaid fines by virtue of Articles 4.1 and 5.1. But, once again, there is no evidence presented that the defendant's H.T.A. tickets or charges that led to the defendant's Ontario driver's licence being suspended on February 12, 2010, had been for traffic offences specifically listed under Article 4.1.2 of the Canadian Driver Licence Compact, which would mean that the Ontario Ministry would not have been obligated to report those convictions or unpaid fines of the defendant to the Alberta Ministry.

(m) Was The Alberta Ministry Obligated Not To Renew The Defendant's Alberta Licence After The Defendant's Ontario Driver's Licence Had Been Suspended On February 12, 2010?

[115] Article 2.2 Application

The Alberta Ministry would have been obligated by virtue of Article 2.2 not to renew the defendant's Alberta driver's licence if the defendant's convictions for those Ontario H.T.A. tickets or charges that led to the unpaid fines and the suspension of the defendant's driver's licence on February 12, 2010, if those Ontario H.T.A. tickets or charges had been for traffic offences specifically listed under Article 4.1.2, since the Ontario Ministry would have been obligated to inform the Alberta Ministry of those convictions or unpaid fines and the Alberta Ministry once informed of those convictions or unpaid fines for traffic offences specifically listed in Article 4.1.2 would have been obligated to treat those Ontario convictions and unpaid fines as if they had occurred in Alberta:

2.2 A party should not issue a driver's licence to the applicant if:

— The applicant's right to obtain or to hold a driver's licence:

(a) is suspended, cancelled or revoked in the applicant's jurisdiction of origin because of conviction(s) for an offences(s) listed in Article 4; or

[116] Alberta Traffic Safety Act Prohibition

In addition, under s. 51(r) of the Alberta's Traffic Safety Act, R.S.A. 2000, c. T-6, the defendant had been prohibited from applying for a renewal of his Alberta driver's licence during any period his Ontario driver's licence had been under suspension:

Operator's licences

51. Except as otherwise permitted under this Act, a person shall not do any of the following:

(a) drive a motor vehicle on a highway unless that person is the holder of a subsisting operator's licence;

(r) apply for, acquire or attempt to acquire an operator's licence for that person's own use or in that person's name

(i) during any period that the person is disqualified from driving a motor vehicle in Alberta, another province or territory of Canada or a state of the United States of America,

(ii) during any period for which that person's operator's licence is suspended, or

(iii) during any period for which that person is disqualified from holding an operator's licence in Alberta, another province or territory of Canada or a state of the United States of America,

whether or not the period for which the person's operator's licence was issued has expired;

[117] Alberta Prohibition on Driving

Furthermore, ss. 94(1)(c) and (d) and 94(2) of Alberta's Traffic Safety Act, prohibits anyone in the Province of Alberta from driving a motor vehicle on an Alberta highway if that persons driver's licence or privilege to secure a driver's licence has been suspended or cancelled by a jurisdiction outside Alberta:

94(1) For the purposes of this section, a person is an unauthorized driver if

(a) that person's operator's licence is suspended or cancelled under this Act,

(b) that person is disqualified from driving a motor vehicle in Alberta,

(c) that person's licence or permit to operate a motor vehicle in a jurisdiction outside Alberta is suspended or cancelled, or

(d) that person's privilege to secure a licence or permit to operate a motor vehicle in a jurisdiction outside Alberta is suspended or cancelled.

(2) A person shall not drive a motor vehicle on a highway at any time during which that person is an unauthorized driver.

[118] Condition for Alberta's Obligation

However, the Alberta Ministry's authority not to renew the defendant's Alberta licence under s. 51(r) of the Alberta Traffic Safety Act, only comes into play if the Alberta Ministry is actually notified by the Ontario Ministry that the defendant's Ontario driver's licence has been suspended for traffic offences specifically listed under Article 4.1.2. To reiterate, there has been no evidence presented that the defendant's H.T.A. tickets or charges that led to the defendant's Ontario driver's licence being suspended on February 12, 2010, had been for traffic offences specifically listed under Article 4.1.2 of the Canadian Driver Licence Compact, which would mean that the Ontario Ministry would not have been obligated to inform the Alberta Ministry about the convictions or unpaid fines that led to the Ontario suspension, since the Alberta Ministry is not obligated to suspend or not renew the defendant's Alberta driver's licence unless it is for convictions or for unpaid fines in respect to traffic offences committed in Ontario that are specifically listed in Article 4.1.2 of the Compact.

(n) Possible Scenarios For Why The Defendant Had Unpaid Fines Which Led To The Defendant's Ontario Driver's Licence Being Suspended After The Defendant Had Already Moved To Alberta And After His Ontario Driver's Licence Had Already Been Cancelled

[119] Confirmation of Defendant's Position

Sections 51(r) and 94 of the Alberta Traffic Safety Act confirms the defendant's position that he had no knowledge or been made aware of the Ontario suspension before November 26, 2014, since the defendant had been able to renew his Alberta licence after February 12, 2010, on two occasions without any problem and without the Alberta Ministry denying the renewal of his Alberta licence because of the Ontario suspension. Furthermore, these statutory provisions also support the defendant's belief that he had no demerit points or outstanding fines after he had attended at the courthouse on Queen Street in Toronto one month before he had moved to Alberta and had paid off his parking tickets and outstanding fines, since he had been able to obtain an Alberta driver's licence from the Alberta Ministry on September 28, 2009, because his Ontario driver's licence had been valid and not under suspension.

[120] Possibility of Improper Dealing

However, the defendant's ability to obtain an Alberta driver's licence on September 28, 2009, and to also renew his Alberta licence on two occasions after February 12, 2010, does not eliminate the possibility that not all of his H.T.A. tickets or charges had been properly dealt with prior to the defendant exchanging his Ontario licence for an Alberta licence on September 28, 2009.

[121] Four Possible Scenarios

Moreover, there are potentially 4 possible scenarios that could explain why the defendant, after he had believed that he had cleared all his parking tickets and outstanding fines before he had moved to Alberta, and after he moved to Alberta and surrendered and exchanged his Ontario driver's licence for an Alberta licence, and after his Ontario driver's licence had been cancelled on September 28, 2009, still had H.T.A. tickets or charges that had not been dealt with properly:

(1) The defendant had only cleared up his outstanding parking tickets and outstanding fines at the courthouse on Queen Street in Toronto, but had failed to properly deal with all of his outstanding H.T.A. tickets or charges where convictions had not yet been entered nor where fines had been imposed, and was then subsequently convicted and fined in his absence after he had already moved to Alberta, which then led to the defendant's Ontario driver's licence being suspended for an unpaid fines.

(2) The defendant received a H.T.A. ticket or charge in Ontario after he had attended the courthouse on Queen Street in Toronto, but before he had moved to Alberta, and then failed to properly deal with the ticket or charge, where the defendant was eventually convicted in his absence on a fail to respond docket because the defendant had not requested a trial or requested an early-resolution meeting with a prosecutor within the statutory period, and was also subsequently fined, which then led to the defendant's Ontario driver's licence being suspended for an unpaid fines.

(3) The defendant had received an H.T.A. ticket or charge prior to moving to Alberta in which the defendant had requested an early-resolution meeting with a prosecutor or had requested a trial for that ticket or charge, but did not appear for the meeting with the prosecutor or for his trial and was then subsequently convicted and fined in his absence after he had already moved to Alberta, which then led to the defendant's Ontario driver's licence being suspended for an unpaid fines.

(4) The defendant was not convicted of an outstanding H.T.A. ticket or charge until after he had cleared and paid off his parking tickets and outstanding fines at the courthouse on Queen Street in Toronto, and the fine associated with that ticket or charge had not yet been imposed, in default, or not yet recorded in the relevant database before he had exchanged his Ontario driver's licence for the Alberta licence on September 28, 2009.

[122] Defendant's Negligence

Accordingly, the defendant's testimony that he had cleared up his parking tickets and outstanding fines a month before he moved to Alberta does not exclude the possibility that he still had outstanding H.T.A. tickets or charges where convictions had not yet been entered or fines imposed, and that these H.T.A. tickets and charges which led to the unpaid fines only had convictions entered and fines imposed after he had attended the Queen Street courthouse in Toronto and after he had surrendered his Ontario licence in exchange for the Alberta driver's licence on September 28, 2009. Moreover, because of the possibility that these H.T.A. tickets and charges which led to the unpaid fines had convictions entered and fines imposed after he had been at the courthouse to clear up his parking tickets and outstanding fines would also imply that he did not properly deal with all his outstanding H.T.A. tickets or charges before he had moved to Alberta.

(o) Credibility Of The Defendant

[123] Ambiguity in Defendant's Testimony

Even though the defendant had testified to having paid off all his outstanding parking tickets and fines in 2009, a month before he had moved to Alberta, it is not clear from the defendant's testimony whether the defendant had properly dealt with all of his outstanding Ontario H.T.A. tickets or charges before he had left Ontario, since there had been the possibility that the defendant still had H.T.A. tickets or charges before the courts where no fines had yet been imposed nor convictions entered, as it would be fines in respect to H.T.A. tickets or charges or for charges laid under other statutes specified in the schedule to s. 46 of the H.T.A. and not from unpaid fines for parking tickets that could or would have caused his Ontario driver's licence to be suspended for unpaid fines.

[124] Lack of Documentary Support

Furthermore, there is no documentary evidence of when the defendant had been issued the H.T.A. tickets or charges that led to the defaulted fines, what those tickets or charges had been for, whether the defendant had requested an early-resolution meeting with a prosecutor or requested a trial of the charges, which of the provinces of Ontario or Alberta had issued the driver's licence that defendant had been using when he received those H.T.A. tickets or charges, or when the defendant had been convicted or fined for those H.T.A. tickets or charges.

[125] Difficulty in Evaluating Testimony

Moreover, it is difficult to properly evaluate the defendant's testimony on his efforts to clean up his parking tickets and fines before he moved to Alberta as part of his due diligence defence, since there is no documentary evidence of what he did at the Toronto courthouse in 2009 with parking his parking tickets and outstanding fines in order to compare it with what he had done with those H.T.A. tickets or charges which led to the convictions and unpaid fines that had caused the suspension of the defendant's Ontario driver's licence, and whether those particular H.T.A. tickets or charges had actually gone back to the years 2007 and 2008, as the defendant had indicated.

[126] Burden on Defendant

Also, considering that the onus is on the defendant to prove on a balance of probabilities that he had acted with all reasonable care in the circumstances to avoid committing the offence of drive while under suspension, his testimony in respect to relevant dates for those unpaid fines that had caused the suspension is unfortunately not supported by certified documentary evidence from the Alberta Ministry, from the Ontario Ministry of Transportation, or from any court documents.

[127] Vague Testimony

In addition, the defendant's testimony has been vague on what those H.T.A. tickets or charges that led to the defaulted fines had been for, when those H.T.A. tickets or charges had been issued, when he had been convicted for those H.T.A. tickets or charges, and the amount of the fines that were involved.

[128] Embellishment and Inconsistencies

Furthermore, the defendant has embellished some of his testimony. In addition, there are several circumstances from the defendant's statements given to Officer Jamshidi on November 26, 2014, and in his testimony at trial that undermines the defendant's credibility. These circumstances include the defendant's conflicting statements given to Officer Jamshidi on November 26, 2014. In particular, Officer Jamshidi had asked the defendant on how long he had resided in Alberta and the defendant had initially replied that it had been from 1 to 1½ years, but then later changed his answer and stated to Officer Jamshidi that it had been from 4 to 4½ years. However, the defendant did not explain to Officer Jamshidi why he had changed his answer from 1 to 1½ years to 4 to 4½ years. However, the defendant then testified at trial that he had initially thought that Officer Jamshidi had asked him how long he had lived at his last address in Alberta, which he said had been from 1 to 1½ years, but then said he had been residing in Alberta for 4 to 4½ years, since English had not been his first language and that he had initially misunderstood Officer Jamshidi's question. However, if the defendant had actually moved to Alberta in September of 2009, so that when he had been asked by Officer Jamshidi on November 26, 2014, on how long he had resided in Alberta then his answer should have been rightly 5 to 5½ years, instead of the 4 to 4½ years he subsequently had said to Officer Jamshidi.

[129] Convenient Timeline

Furthermore, the defendant had also testified that all his outstanding fines had been paid off in 2009 and that the unpaid fines that had caused the suspension had been in respect to two tickets for approximately $267 that had gone back to the years 2007 and 2008, which would have put those H.T.A. tickets to a time that had conveniently preceded the date in 2009 (a month before he moved to Alberta), on which he had testified to attending the courthouse on Queen Street in Toronto to inquire about his parking tickets and outstanding fines.

[130] Exaggeration of Renewals

Moreover, the defendant had testified that he had been able to renew his Alberta driver's licence on 3 to 4 occasions because he had to legally renew his Alberta licence every two years. However, this is not correct and has been embellished, since he had only been legally required to renew his Alberta driver's licence on two occasions during the relevant period. According to s. 36(3) of the Operator Licensing And Vehicle Control Regulation, Alberta Regulation 320/2002, the defendant would have had to renew his Alberta licence for the first time on his date of birth in the month of July of 2011 and then for his second renewal he would have had to renew his licence by the month of July of 2013. He then would not have had to renew his Alberta licence for the third time until the month of July of 2015, which follows the date that he had been charged for the offence of driving while under suspension on November 26, 2014. Thus, he only had to legally renew his Alberta licence on 2 occasions and not the 3 to 4 times that he had testified to doing.

[131] Credibility Assessment

Ergo, his testimony had been embellished, somewhat self-serving, and apparently made to fit certain timelines, and has not been supported by any certified documents from the Ontario Ministry, the Alberta Ministry, or from the courthouse that had jurisdiction over the H.T.A. tickets or charges that led to the unpaid fines.

(p) Conclusion For Count #1

[132] Actus Reus Proven

For the first stage of the inquiry, the prosecution has proven that the defendant had committed the actus reus of the offence for count #1 of driving while under suspension beyond a reasonable doubt. In particular, the prosecution has proven that the defendant's Ontario driver's licence had been suspended effective February 12, 2010, through a certified document from the Registrar of Motor Vehicles for the Ontario Ministry of Transportation that had been entered as Exhibit #1, and that the defendant had been operating a motor vehicle on Meyerside Drive in the City of Mississauga on November 26, 2014, at 2:07 p.m. while his Ontario licence or privilege to drive in Ontario had been suspended.

[133] Defendant's Defence Failed

Since the prosecution had met their burden in proving the actus reus of the drive while under suspension offence beyond a reasonable doubt, the defendant was then required to prove the defence of due diligence on a balance of probabilities if he wanted to avoid being found guilty of committing that offence. In trying to prove why he should be acquitted of the driving while under suspension offence, the defendant has submitted that he had done all that he could before he had moved to Alberta in regards to finding out about his parking tickets and outstanding fines and then paying them off, and that after he had moved to Alberta and obtained an Alberta driver's licence he did not receive any notice or know about the Ontario suspension or been made aware that his Ontario driver's licence had been suspended on February 12, 2010, for unpaid fines.

[134] Defendant's Contention Analyzed

First, the defendant had testified that he did not actually receive the Notice of Suspension, have any knowledge of, or had been made aware that his Ontario driver's licence had been suspended by the Ontario Ministry for unpaid fines on February 12, 2010, since the Notice of Suspension had been mailed to the defendant's old Toronto address after the defendant had already moved to Alberta in 2009, and after his Ontario driver's licence had already been surrendered to the Alberta Ministry and on account of being permitted by the Alberta Ministry to exchange it for an Alberta licence, which then caused the Ontario Ministry to cancel his Ontario licence on September 28, 2009. Secondly, the defendant contends that a month before he before he moved to Alberta he had attended at the courthouse on Queen Street in Toronto to inquire about and to pay off his parking tickets and outstanding fines and that after he had cleared and paid off his outstanding fines, he had believed that he did not have any demerit points or any outstanding fines, otherwise he would not have been able to exchange his Ontario licence for an Alberta licence on September 28, 2009. This contention that the Alberta Ministry would not have issued the defendant an Alberta driver's licence in exchange for his Ontario licence if the defendant was disqualified or suspended from driving in another province or territory in Canada is set out under ss. 51(r) and 94 of the Alberta Traffic Safety Act, R.S.A. 2000, c. T-6. However, the defendant being able to obtain an Alberta driver's licence on September 28, 2009, only confirms that his Ontario driver's licence was not suspended at the time he had surrendered his Ontario licence in exchange for the Alberta licence; it does not on the other hand mean that all of the defendant's Ontario H.T.A. tickets or charges had been properly dealt with before he had moved to Alberta or that convictions had been entered or fines imposed on those outstanding H.T.A. tickets or charges which led to the unpaid fines before he had moved to Alberta. In other words, the defendant had failed to properly deal with some of his H.T.A. tickets or charges before he had moved to Alberta, and that the defendant had been only convicted and fined on those outstanding H.T.A. tickets or charges, as well as the fines going into default, after he had already surrendered his Ontario licence to the Alberta Ministry in exchange for the Alberta licence.

[135] Failure to Take Reasonable Care

Moreover, in contending that moving away and being able to obtain an Alberta licence and not receiving actual notice or being made aware that his already-cancelled Ontario driver's licence had been suspended, also does not mean that the defendant has established the defence of due diligence on a balance of probabilities. On the contrary, the defendant had not taken all reasonable care in the circumstances to avoid committing the offence of driving while under suspension for several reasons. These reasons include the defendant not arranging with Canada Post or through his landlord to have his mail forwarded from his Old Toronto address to his new Alberta address or to another address that could have forwarded his mailed to him. In addition, the defendant did not notify the Ontario Ministry of Transportation of his new address within 6 days of changing his address when his Ontario licence was still valid, which he would have been required to do under s. 33(1) of the Ontario Driver's Licence Regulation, O. Reg. 340/92. Nor, did the defendant notify the courthouse, which had jurisdiction over his outstanding Ontario H.T.A. tickets or charges that had led to the unpaid fines, of his new Alberta address to ensure that the defendant would be notified about future trials dates or about receiving notice of being convicted or fined for those outstanding H.T.A. tickets or charges.

Furthermore, in respect to the defendant's contention that the Alberta Ministry would have notified the Ontario Ministry of the defendant's new Alberta address after he had exchanged his Ontario licence for the Alberta licence is not supported by any evidence. In fact, there is no evidence that the Ontario Ministry had the defendant's new Alberta address, since the Notice of Suspension had been sent to the defendant's old Toronto address on February 12, 2010. In addition, according to Article 3.2 of the Canadian Driver Licence Compact, of which the provinces of Alberta and Ontario are signatories, it was only the Ontario Ministry that had been obligated to provide the defendant's driving record and information to the Alberta Ministry when the defendant had surrendered his Ontario licence in exchange for the Alberta licence. There had been no reciprocal requirement under the Compact for the Alberta Ministry to provide the defendant's new address to the Ontario Ministry in respect to the exchange of driver's licences, since the defendant's privilege to drive after September 28, 2009, would now be under Alberta's jurisdiction, as the defendant was now residing in Alberta, as well as driving under a driver's licence issued by Alberta.

[137] Defendant's Ability to Renew Alberta Licence

As for the defendant's contention that he would not have knowledge or been made aware of the Ontario suspension, since he had been able to renew his Alberta licence on two occasions without problem and without the Alberta Ministry informing the defendant that he could not renew his Alberta licence because of the Ontario suspension has not been confirmed or supported by any certified documents from the Alberta Ministry, the Ontario Ministry, or from the courthouse having jurisdiction over the H.T.A. tickets or charges that led to the unpaid fines. In other words, under Articles 4 and 5 of the Canadian Driver Licence Compact, the Ontario Ministry was only obligated to notify the Alberta Ministry about the convictions or fines for those H.T.A. tickets or charges that led to the unpaid fines, if those H.T.A. tickets or charges were for the type of traffic offences specifically listed in Article 4.1.2. However, there is no evidence presented that those H.T.A. tickets or charges which led to the unpaid fines were for traffic offences specifically listed in Article 4.1.2, which could plausibly explain why the defendant had been allowed by the Alberta Ministry to renew his Alberta licence on two occasions between September 28, 2009, when the defendant first was issued his Alberta licence and November 26, 2014, when he was stopped and charged by Officer Jamshdi for driving while under suspension.

[138] Renewal Ability Not Determinative

And, despite the defendant's contention that he had no knowledge or been made aware of the Ontario suspension because he had been able to renew his Alberta driver's licence on two occasions even though his Ontario driver's licence was suspended, since ss. 51(r) and 94 of the Alberta Traffic Safety Act would have prohibited the defendant from being able to obtain or renew an Alberta driver's licence during the Ontario suspension, it is but only one factor or circumstance to consider in deciding whether the defendant had proven the defence of due diligence on a balance of probabilities. Moreover, relying simply on the defendant's ability to renew his Alberta licence on 2 occasions to show that he had no knowledge or been made aware of the Ontario suspension may not prove he had been acting in good faith in not receiving notice of the Ontario suspension, since he may not have acted with all reasonable care in dealing with all of his H.T.A. tickets or charges before and after he had moved to Alberta.

[139] Defendant's Negligence

In addition, the evidence presented had not established on a balance of probabilities that the defendant, acting in good faith, had not been at fault for not receiving notice of the suspension or being aware of the suspension, since he would have known or ought to have known there would be negative consequences if he had failed to properly deal with all of his Ontario traffic tickets or charges by either paying the tickets as soon as he received them; or if he wanted to dispute them, by properly filing a Notice of Intention to Appear at the proper court house, or to request an early resolution meeting with the prosecutor; or for those tickets or charges still before the courts where he had not been convicted or fined, to provide a change of address with the courthouse where those matters were located to ensure that he would be properly notified of all future court dates and required appearances, or to receive notice of any convictions or fines that were imposed.

[140] Defendant's Responsibility

And, prior to the defendant being convicted on those H.T.A. tickets or charges that led to the defendant being suspended for unpaid fines, the defendant would have been personally served with the H.T.A. tickets for a Part I offence or H.T.A. summonses for a Part III offence, and as such, would have been personally responsible for ensuring that those H.T.A. tickets or charges are being properly responded to or dealt with, and any convictions and fines that would have been entered against the defendant would have been the result of the defendant not appearing in court or in negligently dealing with them. Furthermore, as a professional truck driver, he would have known or ought to have known that if he fails to properly deal with his H.T.A. tickets or charges, then he would be convicted in absentia and penalties or fines would be imposed against him for those convictions. And, when the defendant had testified to attending at the Queen Street courthouse in Toronto to enquire about parking tickets and outstanding fines, he should have obtained a printout of all his H.T.A. charges and then compare it with the traffic offences he had been charged with to verify if all his H.T.A. tickets and charges had been properly dealt with before he had moved to Alberta, or even while he had been residing in Alberta.

[141] Failure to Act in Good Faith

Furthermore, on the question of acting in good faith in proving that he did not receive notice of his Ontario suspension, the defendant had not even arranged with Canada Post or with his former landlord to have his mail forwarded from the 2560 St. Clair Avenue West, Toronto address to his Alberta address or to another address where someone could forward his mail to him. The defendant's excuse for not arranging to have his mail forwarded by Canada Post was because they would only forward his mail for 5 to 6 months. Therefore, the defendant's failure to make arrangements to have his mail forwarded or picked up from his old address is evidence that he is not acting in good faith in respect to the issue of receiving notice of the suspension. However, it is also evidence that the defendant had not taken all reasonable care in the circumstances to avoid committing the drive while under suspension offence. In addition, the defendant had also failed to notify the Ontario Ministry of Transportation of his new Alberta address as required under s. 33(1) of O. Reg. 340/94, nor did the defendant notify the courthouse of his new Alberta address that had jurisdiction over the H.T.A. tickets or charges that had led to the unpaid fines. As such, the defendant has failed to prove on a balance of probabilities that he had been acting in good faith when he did not receive the Notice of Suspension due to the defendant's absence, accident, illness, or other cause beyond the defendant's control.

[142] Credibility Issues

In addition, the defendant's testimony on some events or circumstances had been self-serving and exaggerated; especially in respect to his testimony about being able to renew his Alberta driver's licence 3 or 4 times when he would have been only legally required to renew his Alberta licence on 2 occasions from September 28, 2009 until November 26, 2014. In addition, he had contradicted himself when he had first informed Officer Jamshidi about only residing in Alberta for a period of 1 to 1½ years and then changing his answer to 4 to 4½ years, when in actuality he would have had to be residing in Alberta for a period of 5 to 5½ years, which is based on the period from when he obtained an Alberta driver's licence on September 28, 2009, to the date he was stopped by Officer Jamshidi on November 26, 2015.

[143] Credibility Assessment

As such, the defendant's credibility is suspect and his testimony will not be viewed as being entirely credible.

[144] Lack of Documentary Evidence

Moreover, the defendant did not provide any certified documentation from the Alberta Ministry, Ontario Ministry, or from the courthouse that had jurisdiction over the H.T.A. tickets or charges, which led to the unpaid fines that had caused his Ontario driver's licence to be suspended, which would have properly established the date the H.T.A. tickets or charges were issued, the nature of the traffic offences, whether the defendant had properly dealt with his H.T.A. tickets or charges, the disposition of those tickets or charges, whether he had requested a trial or had been deemed not to dispute the charges and convicted for failing to act, the conviction dates of those H.T.A. tickets or charges, and the fines given for those H.T.A. tickets or charges.

[145] Possible Explanation for Renewals

As such, there has been no evidence presented which shows that the H.T.A. charges or tickets that led to the unpaid fines and the subsequent suspension of his Ontario driver's licence had been for traffic offences that are specifically listed in Article 4.1.2 of the Canadian Driver Licence Compact. This evidence would have been important, since only convictions and fines in respect to traffic offences specifically listed under Article 4.1.2 obligates the Ontario Ministry to notify the Alberta Ministry of the defendant's suspension based on those convictions and fines for those specific traffic offences. This likely explains why the defendant had been able to renew his Alberta driver's licence on 2 occasions without problems and without the Alberta Ministry refusing to renew the defendant's Alberta licence because of his Ontario suspension.

[146] Failure to Prove Due Diligence

Therefore, in respect to the defendant's due diligence defence, in which the defendant had been required to prove on a balance of probabilities that he had taken all reasonable care in the circumstances to avoid committing the offences related to driving a motor vehicle in Ontario while his Ontario driver's licence had been suspended, the defendant has failed to prove he had not been negligent in dealing with all of his H.T.A. tickets or charges before he moved to Alberta or not at fault in not receiving notice of his suspension.

[147] Conviction on Count #1

Accordingly, the defendant has failed to establish the defence of due diligence on a balance of probabilities which would entitle the defendant to an acquittal of the offence in count #1 of driving while under suspension.

(3) Count #2: "Using Driver's Licence From Another Jurisdiction While Ontario Driver's Licence Suspended" -- S. 36 H.T.A.

[148] The Offence

For count #2, the defendant had been charged with contravening s. 36 of the H.T.A., which prohibits any individual from using another valid driver's licence or permit issued by another jurisdiction to drive a motor vehicle in Ontario, while their Ontario licence is under suspension:

Driving prohibited while licence suspended

[149] Penalties

Furthermore, if the defendant is convicted of contravening s. 36 of the H.T.A. then the defendant is liable for a minimum fine of $60 to a maximum fine of $500, which is the general penalty set out in s. 214(1) of the H.T.A.:

General penalty

214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.

[150] Dependency on Count #1

To determine whether the defendant has committed the offence set out in count #2 of using a driver's licence from another jurisdiction while his Ontario driver's licence is suspended, would be directly dependent on whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence set out in count #1 of driving while under suspension and whether the defendant has proven the defence of due diligence on a balance of probabilities. If the prosecution has proven the actus reus of the offence in count #1 beyond a reasonable doubt and the defendant has not met his burden in proving the defence of due diligence on a balance of probabilities, then the defendant by necessary implication will also be guilty of committing the offence set out in count #2 beyond a reasonable doubt, since the defendant had presented an Alberta driver's licence to Officer Jamshidi on November 26, 2014, while his Ontario driver's licence or privilege to drive in Ontario had been suspended for unpaid fines.

[151] Conviction on Count #2

Consequently, since the prosecution has proven the actus reus of the drive while under suspension offence in count #1 beyond a reasonable doubt, and the defendant has failed to prove on a balance of probabilities that he had taken all reasonable care in the circumstances to avoid committing the offence in count #1, then the prosecution will by necessary implication have also proven beyond a reasonable that the defendant is guilty of contravening s. 36 of the H.T.A. of using a driver's licence from another jurisdiction while his Ontario driver's licence is suspended.

(4) Count #3: "unlawfully possess more than one driver's licence" -- S. 35(1)(e)

[152] The Charge

In respect to count #3, for the charge of unlawfully possessing more than one driver's licence, the defendant had testified that he had moved from Ontario to Alberta in 2009 and had to physically surrender his Ontario driver's licence in exchange for receiving the Alberta driver's licence on September 28, 2009, and that his Ontario driver's licence had also been cancelled by the Ontario Ministry of Transportation on the same day of September 28, 2009, as evidenced by a copy of an e-mail received by the defendant on June 29, 2015, from John Vu of the Ministry of Transportation (Exhibit #2). The defendant, therefore, questions why he would have been charged with possessing two driver's licences when he had to physically surrender his Ontario licence to the Alberta Ministry in exchange for the Alberta licence, and as such, did not physically have with him an Ontario driver's licence on November 26, 2014, when he had been stopped by Officer Jamshidi, nor did Officer Jamshidi admit to finding the defendant in the physical possession of an Ontario driver's licence during the traffic stop.

[153] Statutory Interpretation

Although the prosecution has conceded the charge set out in count #3 of "unlawfully retain in his possession more than one driver's licence", contrary to s. 35(1)(e) of the H.T.A., since the offence requires proof from the prosecution that the defendant had two driver's licences physically in his possession at the relevant time, the wording of that statutory provision does not only restrict the prohibition to just the physical possession of two licences, but also describes two other situations where someone could commit an offence under that statutory provision. Those include someone who has "applied for" more than one driver's licence or someone who has "secured" more than one driver's licence:

Displaying licence that has been suspended, altered, etc.

35(1) No person shall,

(a) display or cause or permit to be displayed or have in his or her possession a fictitious, imitation, altered or fraudulently obtained driver's licence;

(b) display or cause or permit to be displayed or have in his or her possession a cancelled or suspended driver's licence or a driver's licence that has been changed in respect of its class, other than a licence card that has been marked by the Ministry as valid only to show the driver's photograph;

(d) display or represent as his or her own a driver's licence not issued to him or her;

(e) apply for, secure or retain in his or her possession more than one driver's licence;

(e.1) secure or retain in his or her possession a driver's licence if he or she holds a photo card issued under the Photo Card Act, 2008; or

(f) fail to surrender to the Ministry upon its demand a driver's licence that has been suspended, cancelled or changed in respect of its class.

Idem

(2) In subsection (1),

"licence" includes any portion thereof.

Seizing licence

(3) Any police officer who has reason to believe that any person has in his or her possession a driver's licence referred to in subsection (1) may take possession of the licence and, where the officer does so, shall forward it to the Registrar upon disposition of the case.

[154] Narrow Interpretation

However, the defendant was not specifically charged with "applying for" or for "securing" more than one driver's licence under s. 35(1)(e), but had been charged with the third circumstance of "unlawfully retaining in his possession more than one driver's licence". Ergo, the prosecution is correct in their reading or interpretation of the words "in his possession" set out in s. 35(1)(e), which would refer to the verb "retain" that immediately precedes that clause, in respect to the more limited meaning of physically possessing two or more driver's licences, instead of a broader notion of "having two or more driver's licences" which does not limit it to a physical possession of driver's licences. On the other hand, the broader notion of having two or more driver's licences would encompass one of the other two circumstances of breaching s. 35(1)(e), namely, by the act of "securing" more than one driver's licence.

[155] Seizure Provision Support

In addition, s. 35(3) of the H.T.A. would have permitted Officer Jamshidi to seize the second or offending driver's licence, if it were an Ontario driver's licence, from the defendant and forward it to the Registrar of Motor Vehicles for the Ministry of Transportation for Ontario upon disposition of the case, which also supports the interpretation of the wording for the offence of "unlawfully retain in his possession more than one driver's licence", to mean being in the possession physically of two or more driver's licences, otherwise Officer Jamshidi could not carry out the act of "seizing" one of the two impugned driver's licences and forwarding it to the Registrar.

[156] Provincial Consistency

As well, the other provinces and territories generally have a similar prohibition to what is contained in s. 35(1)(e) of the H.T.A. that bars someone from having multiple driver's licences. Equally, most jurisdictions in Canada also require a licenced driver from another province or territory who moves to a new province to apply for a new licence and surrender their existing one within a certain period of days of moving to the new province.

[157] Acquittal on Count #3

Accordingly, since there is no evidence that Officer Jamshidi had observed the defendant being in the physical possession of an Ontario driver's licence or that the defendant admitted to being in the physical possession of an Ontario driver's licence along with his Alberta driver's licence, then the prosecution has not proven that the defendant had committed the offence set out in count #3 of "unlawfully retain in his possession more than one driver's licence", contrary to s. 35(1)(e). Count #3 will therefore be dismissed and an acquittal will be entered on behalf of the defendant.

(5) Count #4: "Drive With Hand-Held Communication Device" -- S. 78.1(1) H.T.A.

[158] Guilty Plea

Since the defendant had entered a guilty plea at the outset to count #4 for the offence of driving with a hand-held communication device, contrary to s. 78.1(1) of the H.T.A., and as the facts presented support the guilty plea, the defendant has been found to have committed the offence beyond a reasonable doubt and a conviction will be entered against the defendant for committing the offence set out in count #4.

Disposition

[159] Convictions on Counts #1 and #2

Therefore, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant, Abdi Osman, has committed the offences set out in counts #1 and #2 of the information respectively, of operating a motor vehicle on a highway when his Ontario driver's licence was suspended, contrary to s. 53(1) of the Highway Traffic Act, R.S.O 1990, c. H.8, and of using a driver's licence issued by another jurisdiction when his Ontario driver's licence was still under suspension, contrary to s. 36 of the Highway Traffic Act, R.S.O 1990, c. H.8.

[160] Acquittal on Count #3

For count #3, the prosecution has not proven beyond a reasonable doubt that the defendant on November 26, 2014, in the City of Mississauga, did unlawfully retain in his possession more than one driver's licence contrary to s. 35(1)(e) of the Highway Traffic Act, R.S.O 1990, c. H.8. An acquittal will therefore be entered on behalf of the defendant, Abdi Osman, for count #3.

[161] Conviction on Count #4

In addition, the defendant, Abdi Osman, is guilty beyond a reasonable doubt of committing the offence of operating a motor vehicle on a highway while holding a hand-held communication device, contrary to s. 178.1(1) of the Highway Traffic Act, R.S.O 1990, c. H.8, since the defendant during arraignment had entered a guilty plea to this charge set out as count #4.

[162] Sentencing Disposition

As such, convictions in respect to counts count #2 and #4 will be entered against the defendant, Abdi Osman. And, because of the circumstances which led to the defendant committing the offence set out in count #1 of driving while under suspension and the defendant having paid off his defaulted fines and reinstating his Ontario driver's licence or privilege to drive in Ontario prior to the trial commencing on November 3, 2015, it would unduly harsh to enter a conviction against the defendant for driving while under suspension in count #1, since a consequence of entering a conviction against the defendant will be the automatic suspension of the defendant's privilege to drive in Ontario for a period of 6 months. Accordingly, a conviction will only be entered for count #1 for the lesser offence of "operating a motor vehicle on an Ontario highway without a valid Ontario driver's licence", contrary to s. 32(1) of the H.T.A.

Dated at the City of Brampton on February 12, 2016.

QUON J.P.

Ontario Court of Justice

R. v. Osman

Court Information

Parties

Charges

Background

[1] Interprovincial Driver Information Sharing

[2] The Defendant's Circumstances

[3] The Traffic Stop and Investigation

[4] The Licence Exchange

[5] The Defendant's Move to Alberta

[6] Discovery of the Suspension

[7] The Defendant's Defence

[8] The Prosecution's Position

[9] The Prosecution's Arguments

[10] Address Change Issues

[11] The Prosecution's Concession

[12] Key Issues

[13] Trial Proceedings

Analysis and Decision

(A) Has The Prosecution Proven That The Defendant Has Committed The 4 H.T.A. Charges Beyond A Reasonable Doubt?

[16] Undisputed Facts

[17] Defendant's Contentions

(1) The Defendant Had Felt Threatened by Officer Jamshidi

[18] Collateral Issue

[19] Reconsideration of Voluntariness

[20] Timing of the Threat Allegation

[21] Conclusion on Threat Issue

(2) Count #1: "Driving While Driver's Licence Suspended" -- S. 53(1) H.T.A.

[22] The Offence and Penalties

[23] Driving as a Privilege

[24] Valid Driver's Licence Requirement

[25] Exception for Non-Residents

[26] Prohibition on Using Out-of-Province Licence While Suspended

[27] Basis for Suspension

[28] Validity of Suspended Licence

(a) Can the Ministry of Transportation suspend a driver's licence that it had cancelled earlier?

[29] The Paradox

[30] No Statutory Prohibition

[31] Cancellation Upon Exchange

[32] Suspension of Privilege vs. Licence

[33] Consecutive Suspensions

[34] Canadian Driver Licence Compact Recognition

[35] Practical Necessity

[36] Record-Keeping System

[37] Suspension of Out-of-Province Drivers

[38] Application to the Defendant

[39] Implied Power to Suspend

(b) What category of offence is the drive while under suspension offence?

[40] Strict Liability Classification

(c) The Ontario Ministry of Transportation Is Required Under The H.T.A. To Notify The Defendant Of The Suspension Of His Driver's Licence

[41] Notice Requirements

(i) The Notice of Suspension sent to the defendant on Feb. 12, 2010 (Exhibit #1)

[42] Compliance with Notice Requirements

[43] Deemed Receipt

[44] Compliance Established

[45] Regulatory Requirements Met

(iii) The Defendant Has The Burden On A Balance Of Probabilities To Prove That He, Acting in Good Faith, Did Not Receive The Notice of Suspension Because of Absence, Accident, Illness Or Other Cause Beyond His Control

[46] Burden Shifts to Defendant

[47] Miller Decision on Due Diligence

(d) The Prosecution Has Proven The Actus Reus Of The Drive While Under Suspension Offence Beyond A Reasonable Doubt

[48] Actus Reus Established

[49] Burden Shifts to Defendant

(e) Has The Defendant Proven On A Balance Of Probabilities The Defence Of Due Diligence?

[50] Due Diligence Defence

[51] Timing of Suspension

[52] Defendant's Lack of Knowledge

[53] Alberta Licence Renewals

[54] Officer's Belief vs. Evidence

[55] Defendant's Efforts to Clear Fines

[56] Officer's Unqualified Opinion

[57] Defendant's Assumption About Address Notification

[58] Mail Forwarding

[59] No Change of Address to Court

(i) Was the defendant diligent in dealing with the H.T.A. tickets or charges that had led to the unpaid fines?

[60] Burden on Defendant

[61] Defendant's Contentions

[62] Interprovincial Information Sharing Question

[63] Lack of Notice Does Not Defeat Due Diligence

(ii) Would the Ontario Ministry of Transportation have known about the defendant's new Alberta address?

[64] No Evidence of Address Notification