Court Information

Ontario Court of Justice

Date: 2017-04-04

Court File No.: Halton - Burlington 16-9273

Provincial Offences Court – Burlington, Ontario

Parties

Between:

Her Majesty the Queen

— AND —

Damir Basic

Before the Court

Justice of the Peace: Kenneth W. Dechert

Heard on: February 8th, 2017

Reasons for Judgment released on: April 4th, 2017

Counsel

For the Prosecution: M. Godinho, student-at-law

For the Defendant: No appearance by or on behalf of Damir Basic, even though notified of time and place.

Statutes, Regulations and Rules Cited

• Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, paragraph 2(1)(a), subsection 2(2) and subsection 3(1)
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsection 1(1), paragraph 7(5)(a), paragraph 12(1)(d), subsection 33(1), subsection 210(7) and subsection 192(2)
• Highway Traffic Act, R.S.O. 1970, c. 202, as amended, subsection 132(1)
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, subsection 47(3)

Cases Cited

• Comer v. Kowaluk et al., [1938] O.R. 655; [1938] 4 D.L.R. 181 (Ont. C.A.)
• Haberl v. Richardson and Richardson, [1951] O.R. 302 (Ont. C.A.)
• Honan (Next friend of) v. Doman Estate, [1975] 2 S.C.R. 866; 50 D.L.R. (3d) 582 (S.C.C.)
• Keizer v. Hanna, 10 O.R. (2d) 597; 64 D.L.R. (3d) 193 (Ont. C.A.)
• Regina v. Kienapple, 15 C.C.C. (2d) 524 (S.C.C.)
• Regina v. Prince, 30 C.C.C. (3d) 35 (S.C.C.)
• Regina v. Stone, [1984] O.J. No. 912 (Ont. Co. Ct.)
• Regina v. Terlecki, 1983 ABCA 87, 4 C.C.C. (3d) 522 (Alta. C.A.)
• Regina v. Terlecki, 22 C.C.C. (3d) 224 (S.C.C.)
• Regina v. Zachariou, [1999] O.J. No. 2488 (Ont. C.J.)
• Regina v. Zwicker, 17 O.R. (3d) 171 (Ont. C.A.)

Publications Cited

Oxford Dictionary of Current English, Third Edition (2001, Oxford University Press)

Reasons for Judgment

K.W. DECHERT, J.P. (orally):

Introduction

[1] Under Halton Information no. 16-9273, the defendant Damir Basic stands charged that he on or about the 18th day of March, 2016, at the City of Burlington, did commit the following offences:

1. Being the owner and operator of a motor vehicle, licence #BVHW893, Ontario issue, upon a highway, namely Brant Street, did fail to have the vehicle insured under a contract of automobile insurance, contrary to section 2(1)(a) of the Compulsory Automobile Insurance Act;

2. Did operate a motor vehicle on a highway, to wit: Brant Street, and fail to carry or surrender said permit for it or a true copy thereof, when demanded by a police officer, contrary to section 7(5)(a) of the Highway Traffic Act of Ontario;

3. Did operate a motor vehicle on Brant Street, and when requested by a police officer, unlawfully did fail to surrender his driver's licence, contrary to section 33(1) of the Highway Traffic Act of Ontario;

4. Unlawfully did use a number plate upon a motor vehicle, the said number plate BVHW893, Ontario issue, not being the one issued by the Ministry for the said motor vehicle, contrary to section 12(1)(d) of the Highway Traffic Act of Ontario; and

5. Being the operator of a motor vehicle licence BVHW893, Ontario issue, upon a highway, namely Brant Street, did fail to surrender the insurance card, contrary to section 3(1) of the Compulsory Automobile Insurance Act.

[2] The defendant failed to appear for his scheduled trial in respect of the aforesaid charges on February 8th, 2017. The trial proceeded before me in the absence of the defendant, on that date, when I entered pleas of not guilty to each of the said charges on behalf of the defendant. As the trial was not completed at that time, it was adjourned to April 4th, 2017 @ 1:30 p.m. to permit the prosecutor to make further legal submissions and for possible judgment.

[3] The prosecution was represented by student-at-law, Mr. M. Godinho.

Relevant Statutory Provisions

[4] Mr. Basic is charged with three charges under the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as the "H.T.A.". Furthermore, he is charged with two charges under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, hereinafter referred to as the "C.A.I.A.".

[5] The offence of "fail to surrender permit for motor vehicle", is defined by paragraph 7(5)(a) of the H.T.A., as follows:

Subject to subsection (6), every driver of a motor vehicle on a highway shall carry,

(a) the permit for it or a true copy thereof; …

and shall surrender the permits or copies for inspection upon the demand of a police officer.

[6] The offence of "use plate not authorized for vehicle" is defined by paragraph 12(1)(d) of the H.T.A., as follows:

Every person who, …

(d) uses or permits the use of a number plate upon a vehicle other than a number plate authorized for use on that vehicle;

is guilty of an offence…

[7] The term "vehicle" is defined in subsection 1(1) of the H.T.A. as follows:

'vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car.

[8] The offence of "driver – fail to surrender licence" is defined by subsection 33(1) of the H.T.A., as follows:

Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

[9] The offence of "owner and operator of a motor vehicle, without insurance", is defined by paragraph 2(1)(a) of the C.A.I.A., as follows:

Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; …

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

[10] Subsection 2(2) of the C.A.I.A. is relevant to this charge. That subsection reads as follows:

For the purposes of subsection (1), where a permit for a motor vehicle has been issued under subsection 7(7) of the Highway Traffic Act, "contract of automobile insurance" with respect to that motor vehicle means a contract of automobile insurance made with an insurer.

[11] The offence of "fail to surrender insurance card" is defined by subsection 3(1) of the C.A.I.A., as follows:

An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,

(a) an insurance card for the motor vehicle; or

(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,

and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.

The Evidence

[12] During the course of the trial of the subject charges, I received verbal evidence from Provincial Constable Paul Basilio of the Ontario Provincial Police, as well as two certified documents containing information from the records of the Ministry of Transportation of Ontario, entered into evidence as exhibits nos. 1 and 2. The officer's testimony and the documentary evidence were tendered on behalf of the prosecution and constituted the only evidence proffered to me in this proceeding.

(i) The Testimony of Provincial Constable Paul Basilio

[13] Constable Basilio testified that on the 18th day of March, 2016, he was on duty operating an Ontario Provincial Police vehicle, in connection with his employment as a "road constable". He advised that at approximately 8:50 a.m. on that date, he was travelling on the off-ramp from the west-bound lanes of the Queen Elizabeth Highway to Brant Street, in the City of Burlington. He stated that upon approaching the intersection of the said off-ramp and Brant Street, he observed a grey-coloured, four-door Honda Civic motor vehicle, bearing Ontario licence plate BVHW893, located directly in front of him. He observed that the validation tag affixed to the top right-hand corner of the said licence plate indicated that the validation for that plate had expired in September 2015.

[14] Constable Basilio testified that he followed the Honda Civic motor vehicle in a southerly direction on Brant Street in the City of Burlington and eventually stopped it on the right shoulder of the south-bound lanes of that highway, at its intersection with Gray's Line. Upon stopping the vehicle, Constable Basilio approached it from its passenger side and began to converse with the male driver, being its sole occupant. The officer stated that at this time he "made a demand" to the driver to surrender his driver's licence, and a permit and "insurance slip" for the motor vehicle. The officer advised that the driver did not have any of these documents to surrender to him.

[15] Constable Basilio testified that the driver identified himself by producing an "Ontario health card", containing his photograph. The constable advised that he was satisfied that the photograph on the health card matched the visage of the "male person sitting in the vehicle". He noted that the health card was in the name of Damir Basic, with a date of birth of September 29th, 1989.

[16] Constable Basilio testified that after conducting the brief conversation with the driver from the passenger side of the Honda motor vehicle, he walked around to its driver's side, looked through its front windshield and observed the vehicle identification number ("VIN") for the vehicle, which he recorded as number 2HGES16492H934013.

[17] The officer advised that he then conducted a computer query pertaining to both the said "VIN" and licence plate no. BVHW893, which was attached to the said Honda Civic motor vehicle. The results of these inquiries were entered into evidence through certified Ministry of Transportation documentation, filed as exhibits nos. 1 and 2.

[18] Constable Basilio testified that when he requested that the defendant produce his driver's licence, ownership permit and an insurance slip, he engaged in a brief conversation with the defendant relative to his relationship with the subject Honda Civic motor vehicle. Following a voir dire to determine the voluntariness of the statements or admissions made by the defendant to the police officer, I ruled that the prosecution had succeeded in proving, beyond a reasonable doubt, that the said statements or admissions were made voluntarily. They were, therefore, ruled to be admissible in evidence.

[19] Constable Basilio testified that during the course of his conversation with the defendant, Mr. Basic advised him that he drives the subject Honda Civic motor vehicle to work, "that he had been having issues getting insurance" and that "his step-father got the vehicle from a friend". In elaborating on what Mr. Basic stated to him relative to the issue of the ownership of the said vehicle, the officer testified that Mr. Basic stated that "his step-father got the vehicle from a friend" and that he, Mr. Basic, believed that it was his vehicle.

[20] In concluding his testimony, Constable Basilio stated that between the time that he spoke to Mr. Basic on March 18th, 2016 and the time of his testimony on February 8th, 2017, Mr. Basic had not provided him with either proof of insurance coverage for the subject Honda or proof that Mr. Basic was insured under a contract of automobile insurance.

(ii) The Documentary Evidence

[21] The prosecutor tendered two certified documents into evidence under the authority of subsection 210(7) of the H.T.A. These documents, described as a "Plate by Date search" and a "VIN by Date search" were formally entered into evidence in this proceeding as exhibits nos. 1 and 2, respectively.

Exhibit #1

[22] Exhibit no. 1 is a document certified by the Registrar of Motor Vehicles for the Province of Ontario on the 12th day of May, 2016, as constituting true statements containing information from the records of the Ministry of Transportation required to be kept under the H.T.A. The information relates to the results of a "Plate by Date" search of licence plate no. BVHW893 as of March 18th, 2016, which was conducted on May 12th, 2016.

[23] This search document shows that as of March 18th, 2016, licence plate no. BVHW893 was registered to Damir Basic of [address redacted for purposes of publication] and that it was attached to a vehicle described as a 2003 grey-coloured, Buick passenger-utility vehicle, bearing VIN 3G5DA03EX3S565317. The search document indicates that the licence plate was registered on July 10th, 2014 and that its validation tag, being no. 0950684, was last issued on July 23rd, 2014 and had expired on September 29th, 2015.

Exhibit #2

[24] Exhibit no. 2 is a document certified by the Registrar of Motor Vehicles for the Province of Ontario on the 12th day of April, 2016, as constituting true statements containing information from the records of the Ministry of Transportation required to be kept under the H.T.A. The information relates to the results of a "VIN by Date" search of VIN 2HGES16492H934013, as of March 18th, 2016, which was conducted on April 12th, 2016.

[25] This search document shows that as of March 18th, 2016, VIN 2HGES16492H934013 and the vehicle bearing that vehicle identification number, were registered to Kadir Dzafic of [address redacted for purposes of publication]. The document indicates that the VIN is attached to a 2002 silver-coloured, Honda four-door sedan, bearing Ontario licence plate no. BEVP456. The document goes on to reveal that licence plate no. BEVP456 was registered on December 1st, 2008 and that its validation tag no. 0974210 was last issued on June 12th, 2011 and had expired on June 11th, 2012.

The Issue

[26] The sole issue in this proceeding is whether or not the prosecution has proven all of the essential elements of the subject charges against Damir Basic, beyond a reasonable doubt.

Analysis

(i) The Charges of "Fail to Surrender Permit for Motor Vehicle", "Driver – Fail to Surrender Licence" and "Fail to Surrender Insurance Card"

[27] The uncontradicted testimony of Provincial Constable Basilio in this proceeding, establishes the following elements of these three charges, beyond a reasonable doubt:

1. that on the 18th day of March, 2016, at about 8:50 a.m., the defendant Damir Basic was driving a motor vehicle, to wit: a grey-coloured, four-door Honda Civic motor vehicle, bearing Ontario licence plate no. BVHW893;

2. that at that time, Mr. Basic was driving the said Honda motor vehicle in the south-bound lanes of a highway, to wit: Brant Street, in the City of Burlington, and accordingly was in charge of the said motor vehicle;

3. that at or about the same time, the said Honda motor vehicle was stopped by a police officer, to wit: Provincial Constable Paul Basilio, on Brant Street;

4. that upon stopping the motor vehicle, Constable Basilio made a demand to Mr. Basic (the driver) to surrender his driver's licence, a permit for the motor vehicle and an "insurance slip" for the motor vehicle, which I acknowledge to be one and the same as an "insurance card" for the motor vehicle;

5. that Mr. Basic was not in possession of any of the requested documents at that time and was, therefore, unable to comply with Constable Basilio's demand to surrender the said documents to him;

[28] In my view, all of the essential elements of these three charges against Damir Basic have been established through Constable Basilio's testimony, beyond a reasonable doubt. Accordingly, I find Damir Basic guilty of the subject offences of "fail to surrender permit for motor vehicle", contrary to paragraph 7(5)(a) of the H.T.A., "driver-fail to surrender licence", contrary to subsection 33(1) of the H.T.A., and "fail to surrender insurance card", contrary to subsection 3(1) of the C.A.I.A., as charged.

(ii) The Charge of "Use Plate Not Authorized for Vehicle"

[29] In my view the prosecution has succeeded in meeting its burden of proving all of the essential elements of this offence, contrary to paragraph 12(1)(d) of the H.T.A., to the standard of proof beyond a reasonable doubt. The elements have been established through the totality of the evidence before me in this proceeding, including the undisputed testimony of Constable Basilio and the contents of documentary exhibit no. 1.

[30] As indicated above, Constable Basilio's testimony proves that at the relevant time, the defendant, Damir Basic was driving a motor vehicle, to wit: a grey-coloured, four-door Honda Civic, bearing Ontario licence plate no. BVHW893, on Brant Street, in the City of Burlington. I may, therefore, draw a reasonable inference that by driving the motor vehicle to which the said "number plate" was physically attached, Mr. Basic was "using" that number plate upon the said vehicle.

[31] The document marked as exhibit #1 to this proceeding is a Ministry of Transportation document titled a "Plate by Date" search, relative to "number plate" BVHW893. That search document shows that on March 18th, 2016, the said number plate was registered to the defendant Damir Basic and to a vehicle described as a 2003 grey-coloured, Buick passenger–utility vehicle, and not to a Honda Civic vehicle.

[32] The only evidence before me establishes that at the relevant time and place Damir Basic was using number plate BVHW893 upon the subject Honda vehicle, when it was, at that time, issued by the Ministry of Transportation for the Province of Ontario for use on a 2003 Buick vehicle, registered in the name of Damir Basic. In light of the absence of evidence to contradict the prosecution evidence pertaining to this charge, I am satisfied that the prosecution has proven the subject charge against Damir Basic, beyond a reasonable doubt. He is therefore found guilty of the offence of "use plate not authorized for vehicle", contrary to paragraph 12(1)(d) of the H.T.A., as charged.

(iii) The Charge of "Owner and Operator of a Motor Vehicle, Without Insurance"

[33] I am of the view that the totality of the undisputed evidence in this proceeding establishes all of the essential elements of this offence, contrary to paragraph 2(1)(a) of the C.A.I.A., beyond a reasonable doubt.

[34] In order to sustain a conviction for this offence, the prosecution must prove, beyond a reasonable doubt, that on the subject date, a defendant was the owner of a motor vehicle, and that he/she was operating that vehicle on a highway located at the place in question. If those elements are established, and if the operator of the motor vehicle is unable to produce proof by means of an insurance card that either the motor vehicle is insured or that the operator, him/herself, is insured under a contract of automobile insurance, as required by subsection 3(1) of the C.A.I.A., then the issue of proving whether or not the motor vehicle is insured under a contract of automobile insurance, shifts to the defendant to establish on a balance of probabilities.

[35] In his decision in Regina v. Stone, [1984] O.J. No. 912 (Ont. Co. Ct.), Murdoch Co. Ct. J. found that the words "unless the motor vehicle is insured under a contract of automobile insurance" to be "words falling within the exception, exemption, excuse or qualification contemplated by… s. 48(3) [now s. 47(3)] of the Provincial Offences Act [R.S.O. 1990, c. P.33, as amended, "the P.O.A."]". Accordingly, subsection 47(3) of the P.O.A. applies to this offence and places the burden on the defendant to prove on a balance of probabilities, that at the material time the subject motor vehicle was insured under a contract of automobile insurance, as an exception, exemption or qualification to his/her liability for the offence created by paragraph 2(1)(a) of the C.A.I.A. In his decision in Regina v. Zachariou, [1999] O.J. No. 2488 (Ont. C.J.), MacDonnell J. followed the decision in Regina v. Stone, supra, in concluding that the provisions of subsection 47(3) of the P.O.A. "[apply] to a prosecution under s. 2(1) of the CAIA".

[36] As stated above, I find that the prosecution has proven all of the essential elements of the offence against Damir Basic, beyond a reasonable doubt. The uncontradicted testimony of Provincial Constable Basilio in this proceeding, establishes that on March 18th, 2016, Damir Basic was operating a motor vehicle, to wit: a Honda Civic, bearing VIN 2HGES16492H934013, on a highway, to wit: Brant Street, in the City of Burlington. Constable Basilio testified that upon stopping the said vehicle he made a demand to Mr. Basic to produce an insurance card, evidencing that the motor vehicle was either insured under a contract of automobile insurance or that Mr. Basic, as its operator, was insured under a contract of automobile insurance. Mr. Basic was not in possession of an insurance card at that time, and has not provided Constable Basilio with proof that the motor vehicle was insured on March 18th, 2016, at any time since that date.

[37] The prosecutor argues that while there is no proof that Damir Basic was the registered owner of the subject Honda Civic motor vehicle at the material time, there is sufficient circumstantial evidence proffered through both the testimony of Constable Basilio and the documents entered into evidence as exhibits # 1 and 2, to permit me to draw a reasonable inference that Mr. Basic was, at the material time, a "common law owner" of the said motor vehicle.

[38] In considering the provisions of subsection 2(1) of the C.A.I.A., I note that the Act does not contain a definition for the term "owner". The meaning of this term in the context of subsection 2(1) of the C.A.I.A. has, however, been judicially considered by the Ontario Court of Appeal in its decision in Regina v. Zwicker (1994), 17 O.R. (3d) 171 (Ont. C.A.). In that decision, the Court determined that the term "owner" "is not restricted to the 'registered owner' of a motor vehicle, but includes the 'common law owner' as well".

[39] In reaching that determination on behalf of the Court, Robins J.A. made the following comments:

The Compulsory Automobile Insurance Act is intended to ensure that every car operated in the province is insured. The term 'owner' as it appears in s. 2(1) of this Act, in our view, cannot properly be limited solely to the 'registered owner'. To interpret 'owner' in that manner would permit the person with all the rights of common law ownership to avoid corresponding responsibilities of ownership. Under the present Highway Traffic Act the appellant was required to register her ownership within six days of purchase. In direct contravention of this Act, she failed to do so. It would be anomalous indeed if a breach of the Highway Traffic Act could amount to a shield against liability under the Compulsory Automobile Insurance Act.

In sum, responsibility for ensuring that a motor vehicle is insured under a contract of automobile insurance rests on the 'owner'. The 'owner' in the context of the Compulsory Automobile Insurance Act includes the 'common law owner'. For indicia of common law ownership reference may be made to cases such as Honan (Next friend of) v. Doman Estate, [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582 (S.C.C.) and Keizer v. Hanna (1975), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (Ont. C.A.).

[40] In the Supreme Court of Canada decision in Honan (Next friend of) v. Doman Estate, [1975] 2 S.C.R. 866 (S.C.C.), the Court endorsed the concept of "common law" ownership in interpreting the word "owner" in the context of subsection 132(1) of the Highway Traffic Act, R.S.O. 1970, c. 202 [the predecessor to subsection 192(2) of the H.T.A.].

[41] The Supreme Court of Canada determined that the word "owner" should be interpreted to include not only the registered owner of a motor vehicle but also the owner "in the common law sense". In so ruling, the Court endorsed the concept enunciated by the Ontario Court of Appeal in its decisions in Comer v. Kowaluk et al., [1938] O.R. 655; [1938] 4 D.L.R. 181 (Ont. C.A.), and Haberl v. Richardson and Richardson, [1951] O.R. 302 (Ont. C.A.), that the "common law owner" of a motor vehicle was the person who exercised "dominion over" and "control of" the motor vehicle.

[42] According to the Oxford Dictionary of Current English, Third Edition (2001, Oxford University Press), the term "dominion" is defined, in part, as "supreme power or control", and the term "control" is defined, in part, as "the power to influence people's behaviour or the course of events".

[43] In applying these definitions to the facts of the case at bar, I am of the view that the only rational inference which may be drawn from the circumstantial evidence before me is that the defendant Damir Basic was, at the material time, the owner of the subject Honda Civic vehicle, at common law. He was, therefore, responsible to ensure that it was insured under a contract of automobile insurance, prior to its operation on a highway.

[44] In inferentially finding that Mr. Basic was the "common law owner" of the subject Honda motor vehicle at the material time, I have considered the following pieces of evidence:

1. that at the time of the traffic stop on March 18th, 2016, Mr. Basic admitted to Constable Basilio that he drove the motor vehicle to work, that he had been having issues obtaining insurance for the vehicle, that his step-father got the vehicle from a friend and that he believed that the Honda was his vehicle; and

2. that the "number plate" affixed to the said Honda motor vehicle at the relevant time, being plate no. BVHW893, was a number plate registered to Damir Basic.

[45] Mr. Basic's admissions that he used the Honda vehicle to drive to work, that he was trying to obtain insurance on the vehicle, and that he believed the vehicle to be his vehicle, supports a reasonable inference that he was, at and before the material time, exercising dominion and control over the vehicle. That inference is enhanced when one considers Mr. Basic's statements to the police officer in the context of the fact that, at the material time, he had attached his licence plate - number BVHW893, to the said Honda vehicle. The totality of the evidence clearly shows that at the material time, Damir Basic had the ability to influence the course of events relative to the subject motor vehicle and that he, therefore, exercised independent dominion and control over the vehicle.

[46] For these reasons, I am of the view that the prosecution has established Damir Basic as the common law owner of the subject Honda Civic. In light of the fact that there is no evidence before me which refutes this conclusion, I am of the view that the prosecution has succeeded in meeting its burden of proving the element of ownership of the subject motor vehicle, beyond a reasonable doubt.

[47] In summary, the undisputed evidence led by the prosecution in this proceeding has established the following elements of the offence of "owner and operator of a motor vehicle, without insurance" against the defendant, more particularly described in count #1 of the information, beyond a reasonable doubt:

1. that on March 18th, 2016, Damir Basic was driving a grey-coloured, Honda Civic motor vehicle, on a highway to wit: Brant Street, in the City of Burlington;

2. that at that time, Damir Basic was the common law owner of the subject Honda vehicle; and

3. that Damir Basic did not produce an insurance card to Constable Basilio on March 18th, 2016, and has not produced proof that the subject Honda motor vehicle was properly insured on that date.

[48] The defendant has failed to meet his onus to show, on a balance of probabilities, that the statutory exception, exemption or qualification to liability stated in subsection 2(1) of the C.A.I.A., operates in his favour. In that regard, the defendant has failed to adduce any evidence to show that the subject Honda motor vehicle was, as of March 18th, 2016, insured under a contract of automobile insurance.

[49] Accordingly I find Damir Basic guilty of the offence of "owner and operator of a motor vehicle, without insurance", contrary to paragraph 2(1)(a) of the C.A.I.A., as charged.

The Decision

[50] For the reasons stated above, I am of the view that the prosecution has met its burden of proving the actus reus of each of the regulatory offences of: "fail to surrender permit for motor vehicle" contrary to paragraph 7(5)(a) of the H.T.A., as more particularly described in count #2 of the information, "driver-fail to surrender licence", contrary to subsection 33(1) of the H.T.A., as more particularly described in count #3 of the information, and "use plate not authorized for vehicle", as more particularly described in count #4 of the information, against Damir Basic, beyond a reasonable doubt. Accordingly, I find Damir Basic guilty of those offences and convictions are registered.

[51] Furthermore for the reasons stated above, I am of the view that the prosecution has met its burden of proving the actus reus of each of the regulatory offences of: "owner and operator of a motor vehicle, without insurance", contrary to paragraph 2(1)(a) of the C.A.I.A., as more particularly described in count #1 of the information, and "fail to surrender insurance card", contrary to subsection 3(1) of the C.A.I.A., more particularly described in count #5 of the information, against Damir Basic, beyond a reasonable doubt. Accordingly, I find Damir Basic guilty of both of these charges; however, before I rule as to whether Mr. Basic should be convicted of both of these C.A.I.A. charges, I must first determine whether or not the rule against multiple convictions applies to one of these charges, so as to justify a stay of proceedings in respect of that charge.

[52] In its decision in Regina v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.), the Supreme Court of Canada determined that an accused cannot be convicted of multiple offences with the same or substantially the same elements arising from the same transaction. In its decision in Regina v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.), the Supreme Court of Canada determined that an accused cannot be convicted of two offences if there is both a factual nexus between the charges, such that the same act grounds each charge, and a legal nexus between the charges.

[53] In the case at bar, the defendant has been found guilty of two charges arising out of the same delict, created by both paragraph 2(1)(a) and subsection 3(1) of the C.A.I.A.; that of operating a motor vehicle on a highway without insurance. Additionally, it is quite apparent that the charges are based upon the same set of circumstances. There is clearly a factual nexus between the charges. While the legal nexus between the charges is more remote, their underlying relationship discloses the existence of certain common features. In that regard, it is clear that an owner and operator of a motor vehicle on a highway, who has failed to insure the vehicle under a contract of automobile insurance, will, obviously, be unable to comply with his/her legal obligation to carry an insurance card in the motor vehicle at all times. The legal nexus between the charges is connected to their common elements relative to the operation of a motor vehicle on a highway, when it was not insured under a contract of automobile insurance.

[54] Accordingly, I am of the view that the rule against multiple convictions, established by the decision in Regina v. Kienapple, supra, applies in this case. Damir Basic may not, therefore, be convicted of both of the offences of "owner and operator of a motor vehicle, without insurance", contrary to paragraph 2(1)(a) of the C.A.I.A., and "fail to surrender insurance card", contrary to subsection 3(1) of the C.A.I.A.

[55] In their decision in Regina v. Terlecki (1983), 1983 ABCA 87, 4 C.C.C. (3d) 522 (Alta. C.A.), at para. 25, McDermid, Laycraft and Kerans JJ.A. made the following comments as to the procedure to employ when applying the rule against multiple convictions:

Therefore, unless there is reason to the contrary, the court should indicate whether the accused is guilty of both charges. If found guilty then a conviction should be entered on the more serious charge and a conditional stay on the less serious. If both charges are of equal seriousness, then a conviction should be entered on one and a conditional stay on the other. We say a conditional stay for the conviction should be that the stay is only for the period until the charge on which the accused has been found guilty is finally disposed of on appeal or by the expiration of time for appeal. Ultimately, if the conviction becomes final, the accused would be entitled to a certificate of acquittal on the other charge.

[56] This procedure was approved by the Supreme Court of Canada in its decision in Regina v. Terlecki (1983), 22 C.C.C. (3d) 224 (S.C.C.).

[57] I am of the view that the offence of "fail to surrender insurance card", contrary to subsection 3(1) of the C.A.I.A. is clearly less serious than the offence of "owner and operator of a motor vehicle, without insurance", contrary to paragraph 2(1)(a) of the C.A.I.A. The monetary penalty on conviction for the offence under paragraph 2(1)(a) ranges between $5,000.00 and $25,000.00, whereas the monetary penalty on conviction for the offence under subsection 3(1) ranges between no fine and $400.00.

[58] Damir Basic is therefore convicted of the charge of "owner and operator of a motor vehicle, without insurance", contrary to paragraph 2(1)(a) of the C.A.I.A. A stay of proceedings shall be entered on the charge of "fail to surrender insurance card", contrary to subsection 3(1) of the C.A.I.A. The stay of proceedings is conditional until the time when any appeal by the defendant of his conviction for the offence of "owner and operator of a motor vehicle, without insurance" has been finally disposed of, or at the expiration of the time permitted by law to pursue such an appeal.

Released: April 4th, 2017

Signed: "Justice of the Peace Kenneth W. Dechert"