Court File and Parties

Ontario Court of Justice

Date: 2018-11-02

Court File No.: Brampton POA Appeal Info No. 00098; Certificate 4179681B, and Summons TB922277

In the Matter of: An appeal under s. 120 and s. 122 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Prosecution Respondent

— AND —

Sue-Ann Harry Appellant

Before: Justice S. Caponecchia

Heard: September 21, 2018

Reasons for Judgment Released: November 2, 2018

Counsel:

• Mr. A. Patterson, counsel for the Prosecution
• Mr. K. McLean, agent for the Appellant Sue-Ann Harry

On appeal from: A conviction and sentence by Justice of the Peace Weiss on August 22, 2014

Judgment

CAPONECCHIA J.:

Introduction

[1] Ms. Harry was convicted on August 22, 2014 for being an owner of a motor vehicle and permitting the vehicle to be operated without insurance on February 7, 2013.

[2] The Crown called one witness, Constable Humber. He stopped a Cadillac Escalade at 11:16 p.m. The registered owner of the motor vehicle was Ms. Harry of 4695 Full Moon Circle in Mississauga. The Ministry of Transportation Documents proving ownership were made Exhibit 1 at the trial.

[3] The vehicle was operated by Ryan Ramjeawan. He provided a valid driver's licence with the same address as the registered owner, 4695 Full Moon Circle. He also surrendered an expired insurance slip for the car. The insurance expired six days earlier on February 1, 2013. The officer went with Mr. Ramjeawan to 4695 Full Moon Circle where Ms. Harry, the registered owner, was located. No proof of valid insurance was produced. The vehicle was not reported stolen. Ms. Harry was charged with an offence contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act.

[4] Ms. Harry testified at her trial. She testified that she lived with Mr. Ramjeawan. They shared a home and child. She testified that she let the insurance expire on her vehicle while she was on maternity leave and had plans to renew it. The vehicle was hers and had not been used for awhile. Mr. Ramjeawan used it on occasion in the past but had his own car. She was unaware that he borrowed her car on February 7, 2013. He had not asked her to use the car before he left. She had not informed him there was no insurance on the car because they were going through problems at the time. They had not been on good terms since November or December and she had a lot to deal with taking care of their child. On the day of the offence her keys were accessible and left in their usual spot. When the officer and Mr. Ramjeawan came to her home, she explained to the officer she had no insurance because she was not driving her car as a result of being on maternity leave.

[5] Ms. Harry's position is that she was not expecting her partner to take her car. Mr. Ramjeawan had driven her car sporadically in the past. The last time he took her car was in the summer. She said she would not have allowed him if he had asked. She also took the position that Mr. Ramjeawan did not steal the car because they are in a relationship and resided in the same home and share a child.

[6] Mr. Ramjeawan testified on behalf of Ms. Harry. He confirmed he did not ask for her permission before taking the car out to go pay a bill. He also confirmed they were not on good terms in February 2013. In cross-examination he agreed that he had used her car in the past a few times, the keys were kept in the same spot and she never told him not to take the car out or that the insurance had expired.

[7] Ms. Harry was convicted on the basis that she had not exercised due diligence. The Justice of the Peace imposed a fine of $7,500.

[8] The Appellant appeals her conviction and fine.

[9] This is a Part III matter. Section 120 of the Provincial Offences Act provides Ms. Harry with right of an appeal against conviction and s. 122 governs the sentence appeal.

The Appellant's Position

[10] The Appellant does not appeal based on an error in law. Mr. McLean, on behalf of Ms. Harry, quite properly acknowledges that the correct legal standard, due diligence, was applied in this case. Mr. McLean submits that the conviction should be set aside on the grounds that it is unreasonable or cannot be supported by the evidence. Mr. McLean asks the court to enter an acquittal.

[11] In the alternative, Mr. McLean submits that the elevated fine above the mandatory minimum of $5,000 was unfit. He asks the court to substitute a fine of $2,500.

The Prosecution's Position

[12] The Prosecution submits that there was ample evidence to support the finding that Ms. Harry was not duly diligent.

[13] The Prosecution also argues that Justice Duncan's decision in R. v. Cassista, 2013 ONCJ 305, provides support for an elevated fine in this case.

Analysis

Part A: Conviction Appeal

[14] The overwhelming jurisprudence support the proposition that section 2(1)(b) of the Compulsory Automobile Insurance Act creates a strict liability offence.[1]

[15] The Prosecution must prove beyond a reasonable doubt that the defendant permitted someone to drive his or her vehicle without insurance and the onus shifts to the defendant to establish due diligence. I am satisfied that the Justice in this case applied the correct legal test. I am also satisfied that her conclusion was reasonable based on the evidence.[2]

a) Reasonableness of the Actus Reus Finding

[16] The Prosecution must prove beyond a reasonable doubt the following three elements of the actus reus for the offence:

(i) The defendant was the owner or lessee of the motor vehicle at the time that the officer stopped the driver

[17] The Justice's finding on this element of the offence is sound. The Prosecution tendered documentary evidence proving Ms. Harry was the registered owner. Ms. Harry did not dispute she was the owner of the vehicle in question.

(ii) The motor vehicle was not covered under a valid contract of automobile insurance at the time

[18] The Justice also had a reasonable basis to conclude this element of the offence was made out. Firstly, there was evidence that the officer was shown an expired insurance card by the driver of the motor vehicle, Mr. Ramjeawan. Second, the officer attended the owner's house with the driver and asked Ms. Harry to provide proof of valid insurance. She could not. Third, the officer made calls and verified there was no active insurance policy. Ms. Harry did not deny she let her insurance policy expire.

(iii) The defendant permitted the driver to drive her vehicle on the highway while the vehicle was not covered by insurance

[19] Ownership and lack of insurance do not automatically lead to a finding that just because someone was driving an uninsured motor vehicle on a highway, the owner is guilty of permitting the driver to do so. The issue of driving an uninsured car and permitting it to be driven are not be conflated.

[20] 'Permit' is defined in Webster's New Universal Unabridged Dictionary, 2nd Edition states as follows:

'to give permission to; to authorize; to allow by silent consent, or by not prohibiting; to tolerate; to give opportunity for.'

[21] Black's Law Dictionary, 5th Edition defines 'permit' as:

'to suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.'

[22] Permission or consent to drive a vehicle may be proven by direct evidence. For example, where the owner was a passenger in the car being driven by the driver when it was stopped by the police. However, consent may also be established by circumstantial evidence.

[23] The court in R. v. Sawa, [2008] O.J. No. 5994, found that the prosecution failed to establish beyond a reasonable doubt that the defendant permitted the motor vehicle to be driven when it was not insured. The officer took a written statement from the driver, served a summons on the defendant based on that statement, yet the evidence of the driver was never introduced in evidence. Consequently, the court allowed the appeal and acquitted the defendant.

[24] On appeal in the case of R. v. Egharevba, [2012] O.J. No. 397 (O.C.J.), the court held that "permit" can be proven by circumstantial evidence, but it has to be cumulatively strong enough for an inference of guilt to be drawn.[3] There was insufficient evidence in this case. The investigating officer testified he stopped the vehicle and asked the driver for his driver's license, ownership permit, and insurance card. The driver produced his driver's license, but could not provide an insurance card for the vehicle he was driving. The officer could not remember if the driver had an ownership permit. The officer testified that the driver had the key for the motor vehicle and there was no sign that the steering column had been tampered with in any way. The officer also said that he did not have any reason to believe the motor vehicle had been reported stolen or otherwise taken without the consent of the owner, even after running checks on the vehicle. A certified copy of a document from the Ministry of Transportation of a plate by date search was made an exhibit at trial. There was no dispute the document proved the respondent to be the owner of the motor vehicle in question or that there was a connection between her and the person driving her motor vehicle at the material time as they lived at the same residential address. The appellate court held that had there been evidence that the driver did in fact produce the ownership papers to the officer when stopped, that would be circumstantial evidence, which could be weighed into the mix with other circumstantial evidence. However given the officer could not remember whether the driver had proof of ownership with him, the evidence was "a little light."

[25] The court in R. v. Kuzmanov, [2012] O.J. No. 5033, held that the evidence did not establish the owner gave the driver permission to operate his motor vehicle. The defendant had clearly spelled out that his son, the driver of the motor vehicle, did not have permission to take the car. The key point is whether there is evidence showing that there was permission given to the driver to operate the vehicle. The fact that the keys were easily accessible did not constitute implied permission because there were clear rules set out with respect to the operation of the vehicle and permission needed to be given each time the vehicle was taken.

[26] By contrast, in R. v. Ikponmwosa, [2011] O.J. No. 1367 (O.C.J.), the defendant was convicted of permitting a driver to drive his uninsured motor vehicle on the strength of circumstantial evidence. The defendant's testimony was that he did not give permission to the driver and prospective purchaser, Mr. Enoghase, to drive his motor vehicle. He did not want him to drive the car because it had mechanical problems. The court ultimately did not believe the prospective buyer was going to see the car and consider buying it for $5,000 without driving it. Therefore, notwithstanding the defendant's denial that he permitted the prospective buyer to drive the car, an examination of the evidence before the court led the court to find otherwise.

[27] In this case, the Justice of the Peace's finding that Mr. Ramjeawan was permitted to drive the car was reasonable. Mr. Ramjeawan did not steal Ms. Harry's vehicle. Ms. Harry agreed to as much. It was reasonable to infer that Mr. Ramjeawan had Ms. Harry's implied consent to use her car. They were sharing a home and child, Mr. Ramjeawan had a history of sporadically driving her car without objection, the keys were kept in their usual accessible location. If Mr. Ramjeawan was no longer welcome to use her car, it was incumbent on Ms. Harry to make it clear to him. On all the evidence, she did no such thing. It is disingenuous to suggest that Mr. Ramjeawan was expected to seek Ms. Harry's permission to take her car to go pay a bill on the day of the offence. It is of no moment that they were not getting along given they were still a couple and continued to share a home and child together.

b) Reasonableness of the Mens Rea Finding

[28] As for the mens rea finding, the Justice of the Peace applied the correct legal test. It was open to the defendant to demonstrate that she took reasonable care to prevent the operation of her uninsured motor vehicle. The onus was on Ms. Harry to demonstrate on a balance of probabilities that she exercised due diligence. A successful due diligence claim does not have to meet the highest standard, but only a reasonableness standard. It involves an assessment of what a reasonable person would have done. Would a reasonable person have done what the defendant did, or would a reasonable person have acted differently?

[29] Accepting Ms. Harry's evidence, the Justice found that her actions did not amount to due diligence on a balance of probabilities because:

(1) Ms. Harry was incorrect to assume that because her partner had not taken her vehicle in the recent past, she could presume he would not take it again;

(2) The stresses of life and distraction of a new baby was not an excuse for not taking greater care;

(3) Ms. Harry failed to hide her keys and left them in their usually easily accessible location; and,

(4) Ms. Harry failed to put her car in storage to prevent it from being driven.

[30] I acknowledge that the finding of lack of due diligence based on Ms. Harry's failure to conceal her car keys or put her car in storage were not entirely reasonable on the facts of this case. That said, the first two reasons relied upon by the Justice were sound. Ms. Harry essentially took no steps to ensure that her partner did not drive the car without insurance. Given he had a history of using her vehicle sporadically and she kept her keys in the usual accessible spot, due diligence required Ms. Harry to inform her partner that there was no insurance on the car. In other words, a reasonable person would have told their partner there was no insurance on the car if their partner had a history of using it.

[31] In short, it was reasonable for the Justice to come to the conclusion she did based Ms. Harry having taken no steps and simply assuming her partner would not use the car.

Part B: Sentence Appeal

[32] It is correct to say that Duncan J. in Cassista encouraged courts to give serious consideration to elevated fines, licence suspensions and vehicle impoundment "in cases such as this."

[33] Mr. Cassista deliberately and knowingly drove his vehicle without insurance. He refused to acknowledge the authority of the state to regulate him and refused to accept that he is bound by law to insure his vehicle. The need for specific deterrence in his cases was high. By contrast, Ms. Harry's level of moral culpability is significant less. Her actions were not that of someone flagrantly defying the law. Her actions where irresponsible, not defiant or deliberate.

[34] The Justice of the Peace in Ms. Harry's case also did not identify any aggravating factors above and beyond the facts of the case which could reasonably support the elevated fine of $7,500. This was not a case in which Ms. Harry had a prior conviction for a similar offence, or an otherwise lengthy driving record. This was not a case in which the vehicle was driven a great distance, for a prolonged period, was involved an accident or was driven by an unlicensed driver. Those are just some examples of possible aggravating factors that could justify an elevated fine. None existed in this case. There was also no suggestion that the minimum fine would be an insignificant consequence for Ms. Harry. Just the opposite.

[35] In the circumstances of this case I am satisfied the sentence was unfit.

[36] I am told Ms. Harry is a paralegal by profession. This offence took place in 2013. According to her 2017 Notice of Assessment her total income last year was $7,000. I am granting the appeal against sentence and substituting a fine of $3500.

Disposition

[37] For the reasons indicated above, the appeal against conviction is dismissed.

[38] The appeal against sentence is allowed. A fine of $3500 is imposed. One year to pay.

Released: November 2, 2018

Justice S. Caponecchia

Footnotes

[1] With one exception. In R. v. James, 2006 CarswellOnt 2592, Justice Wake took the position that he did not believe the offence is one of strict liability. In his opinion the offence has a mental element.

[2] That is not to say that I am in agreement with all of the reasons for the conclusion the Justice.

[3] See para. 16.