Court Information

Ontario Court of Justice

Date: 2019-11-18

Court File No.: Newmarket 4960 999 18 12170000-00

Parties

In the Matter of an appeal under Section 116(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended:

Between:

Her Majesty the Queen Appellant

— And —

Angus Belleau Respondent

Judicial Information

Before: Justice David S. Rose

Heard on: November 1, 2019

Reasons for Judgment released on: November 18, 2019

Counsel:

• Mr. T. Hamilton – counsel for the prosecution
• No appearance by or on behalf of Angus Belleau, even though notified of time and place

On appeal from: Acquittal by Justice of the Peace A. Romagnoli on June 26, 2019

Reasons for Judgment

ROSE J.:

[1] Introduction

The Respondent was tried ex parte on charges of Drive with a suspended licence, drive with no insurance, and drive without a valid licence plate. At the conclusion of the trial Her Worship acquitted the Respondent of the drive with no insurance charge and convicted him of the other two charges. The Crown appeals the acquittal. At the conclusion of the appeal hearing I allowed the appeal with reasons to follow. These are the reasons.

Trial Evidence

[2] Police Officer's Evidence

The trial was brief. PC Amy Oliver testified that on March 22, 2018 she was driving southbound on Yonge Street in Richmond Hill at about 10:36 pm. She turned left onto High Tech Road and saw a grey BMW turn left into a plaza. It had an expired validation sticker so she stopped the car. The Respondent was the driver. He identified himself with an Ontario Health Card. Using that identity PC Oliver used the Ontario Ministry of Transportation system to get his driver's licence number. She got the vehicle permit but it had no current proof of validation. She demanded proof of insurance and got none. PC Oliver confirmed through the VIN number that the car matched the permit. She added that she has still not been provided with proof of insurance as of the date of the trial.

[3] Documentary Evidence

The prosecution introduced exhibits which showed that Mr. Belleau was a suspended driver on March 22, 2018, and that he was the owner of the BMW which PC Oliver had pulled over.

[4] Crown's Submissions

The prosecutions submissions were quite brief. There was uncontradicted evidence that on March 22, 2018 the Respondent was the owner of a car that he was driving while his licence was suspended and that when asked for proof of his insurance, he didn't provide any.

Trial Judge's Decision

[5] Finding on Insurance Charge

Her Worship properly found that the evidence was uncontradicted, and that the Respondent was the owner of the vehicle. She properly found that he was a suspended driver when he was pulled over by PC Oliver. As regards the drive no insurance charge, Her Worship found:

She also indicated that the demand for insurance particulars was made. None was provided. She testified there was no insurance document provided, there was no proof of insurance provided.

I am not aware of the requirement to provide a insurance documents or contract when the officer makes a demand for insurance particulars. Basically, it's the insurance slip that gets provided and on that date I am satisfied that the insurance slip wasn't provided. There is a charge for such an offence and I am not satisfied that the evidence supports there was no insurance.

There is no indication that the officer took any further steps to satisfy herself that this vehicle was not insured. So I am not satisfied that the charge has been made out.

Appellate Analysis

[6] Legal Framework for Strict Liability Offence

The charge of operate a motor vehicle, while the owner, without insurance under s. 2(1)(a) of the Compulsory Automobile Insurance Act (CAIA) is a strict liability offence. Evidence that the owner operator provided no such proof of insurance coverage when requested establishes the prima facie offence. Once it is established that the driver was the owner of the car and could not produce proof of valid insurance upon demand the offence is complete. The owner/driver has a due diligence defence, but it is wrong in law to say that the Crown must prove the absence of insurance to the standard of proof beyond a reasonable doubt by leading evidence that no insurance company had coverage for the vehicle in question. In R. v. Zachariou 1999 CarswellOnt 6600 MacDonnell J., sitting as a provincial court judge at the time, put it this way:

In my opinion, the objective of placing the burden on the owner of a motor vehicle to establish the existence of insurance for that vehicle is a matter of substantial importance. The fundamental purpose of the CAIA is to ensure that all motor vehicles on the highway are covered by a contract of insurance. Imposing an obligation on the owner to obtain insurance ensures that when accidents happen, as all too frequently they do, compensation will be available — especially for those who are not at fault. Without such a requirement, the personal and financial consequences of motor vehicle accidents would often be devastating. But without a mechanism to enable the authorities to quickly ascertain whether a particular vehicle is insured, the objectives of the CAIA would be seriously undermined. Requiring the owner of a motor vehicle to establish that the vehicle is covered provides the necessary mechanism to prevent that from happening. In my view, placing the burden of proof in relation to the existence of insurance on the defendant serves an important social objective and satisfies the first part of the Oakes test.

See also R. v. Ward 2015 ONCJ 369.

[7] Error in Trial Judge's Reasoning

Her Worship therefore properly found that the Crown had proven the key elements of the offence. Mr. Belleau was driving a car he owned and when asked to provide proof of insurance he couldn't. When Her Worship found that the prosecution had to prove affirmatively the complete absence of insurance she fell into error. There is no such requirement. Once the demand is made, the owner of the vehicle must prove the existence of insurance, or due diligence on the point, see R. v. Hussein 2003 CarswellOnt 3638 at para. 7 (De Filippis J.). This was an ex parte trial. There was no evidence lead which could be characterized as evidence of due diligence.

[8] Disposition

In the circumstances the acquittal is quashed. The uncontradicted evidence is that the Respondent was guilty of drive a motor vehicle while being the owner without insurance under the CAIA s. 2(1)(a). He is convicted of the offence, and fined $5000.00.

Released: November 18, 2019

Signed: Justice David Rose