Court Information

Date: October 29, 2019

Information No.: 19-29747

Ontario Court of Justice

Her Majesty the Queen v. Victor Latzoo

Before: His Worship Justice of the Peace J.J. Ziegler

Location: Kitchener, Ontario

Date of Hearing: October 29, 2019

Appearances

Crown: Mr. McLean, Provincial Crown

Defence: Mr. E. Claxton, Counsel for Victor Latzoo

Reasons for Judgment

The Charge

I have information 029747 for 2019, charging Victor Latzoo on or about the 7th of May, 2019, in the City of Kitchener, being the owner of a motor vehicle, did unlawfully permit the vehicle to be operated on Queen Street South without having automobile insurance, contrary to section 2(1)(b) of the Compulsory Automobile Insurance Act.

Crown's Case

Constable Decker's Evidence

I have the Crown's case presented by two witnesses, Constable Decker, and then the insurance representative, Steve Wagler. Constable Decker testified that on May 7th, 2019, just before 2:00 p.m., he was southbound on Queen Street in the area of King Street in the City of Kitchener, and observed a vehicle in front with a plate BCDK 942, a 2006 Toyota Prius, black in colour.

He queried the plate and returned that the insurance status was unconfirmed. He activated his lights, stopped the vehicle on Joseph Street, and the driver presented her driver's licence, ownership and insurance. He was satisfied with the photo identification of Florence Latzoo, born 1975. She surrendered an insurance card from Echelon Insurance Company and the brokerage is Josslin Kitchener Brokerage, policy X32101489-9, showing an effective date of August 14th, 2018, and an expiry date of June 18th, 2019.

He compared the VIN number on the insurance card with the vehicle and was satisfied it was the same VIN number. He contacted Josslin Insurance Brokerage and after talking to them, the registered owner on the permit according to the officer was Victor Latzoo, born 1947, at 233 Franklin Street North, Unit 110. Based on the conversation with the Josslin Insurance Brokerage, Mr. Steve Wagler, the officer laid the charge, charging – actually, he did not lay it right away.

He had a meeting with Mr. Latzoo on May 10th, and had made an inquiry with the MTO. And based on the conversation with Mr. Latzoo, he laid the charge of permit operation of vehicle and issued a summons to the defendant, Mr. Latzoo, for permitting the operation of motor vehicle without insurance.

Exhibit Number 1 was provided at that point, which is plate by date. And that shows that the Ministry's records on May 31st, 2019, that the vehicle was registered in the name of Victor Latzoo at Unit 110, 233 Franklin Street in Kitchener, Franklin Street North, same VIN identification number, Toyota Prius, black in colour, 2006.

Cross-Examination of Constable Decker

Mr. Claxton cross-examined the officer and the officer admitted that he only looked at the front of the ownership. The ownership was provided as Exhibit Number 2, a coloured photocopy of the original ownership, which, when compared with the original satisfied to the Court was a true copy. And on the back page there is a signature without a date from Mr. Latzoo, same signature as on the front of this ownership.

In response to the question: did you unfold the permit or just look at what was on the front, the Officer Decker's answer was: I only looked at the front. Traditionally, he only looks at the rear for an invalid permit, which this was not. And he, the officer, admits that he did not see the subject vehicle at Mr. Latzoo's residence and that there was a different vehicle outside his residence when he met with him on May 10th.

Insurance Broker's Evidence

The insurance broker, Mr. Steven Wagler, testified that he is in sales and part partnership in the brokerage of Josslin Insurance Brokers, has been there since 1991, and he had documents to refer to that were made in the course of business. In the case of the policy with the same number as stated before, X32101489-9 was cancelled for non-payment of premium and the cancellation came in effect on October 12th, 2018.

The letter was sent to Mr. Latzoo on September 14th, when the insurance company had advised them, the Echelon Insurance Company, of the cancellation. And then they immediately sent a registered letter out to their client because they are required to give 30 days' notice of cancellation. And they sent it to Mr. Latzoo's residence at 110-233 Franklin Street North, and he testified that that policy has never been reinstated. That was the conclusion of the Prosecution's case.

Defence Case

Victor Latzoo's Evidence

I then heard from the defendant, Mr. Victor Latzoo, and he identified the ownership that has been exhibit entered as Exhibit Number 2. He acknowledged that it is his signature on the front just below the permit number K0312871, and he acknowledged that there is a signature on the back of this ownership. And when asked the purpose of that signature, he said he was giving the vehicle and transferring it to his daughter, Florence Latzoo.

He testified the vehicle was kept at Florence's residence. It was kept there because he gave it to her and to his knowledge, it was parked in underground parking, to which he had no access. He said that in order to get access, he would have had to go to Florence and she would have had to open the garage door because she had control of the vehicle. She also had the key.

He was asked: how long was that vehicle at Florence's place and he said about a year. Were you aware it was being operated on the day in question which was May 7th, 2019? No, I didn't. When did you find out about it? Florence told me she – they are taking – she was taking the vehicle for inspection to another insurance company. And she called to get him to move the vehicle because the officer, having stopped her, said it cannot be driven, and he had it towed back to her place. That is what his testimony was.

Cross-Examination of Victor Latzoo

He was cross-examined on this point and although he could not recall the precise date that he gave it to her, he said it was over a year ago. And asked why it was not filled out, his response was the vehicle had to be tested and it was up to Florence to do that. He acknowledged that Florence's name was not on the ownership, and acknowledged that he did not notify the Ministry of the transfer. He did, in cross-examination say that she had the sole key. And when asked if he had proof of insurance, he said no, it is no longer mine and that he had cancelled his insurance.

Florence Latzoo's Evidence

Florence Latzoo indicated that she had the vehicle at her premises, it was in her parking garage and the plates had to have a validation sticker on them in order to keep it parked there. She is running two households, in that, her daughter is in university, paying for her rent. She has a part-time job and she could not afford to transfer the vehicle in her name in order to get the paperwork indicating it is road worthy.

She acknowledged that her father did tell her that the insurance had been cancelled. She said I thought it was towards the end of the month. And of course, she was told that it was cancelled, according to the defendant, when it was being cancelled back in September or October of 2018. So the driving was May 7th, 2019, and whether or not it was at the end of the month, it was many months prior to that that it had been cancelled. But she did acknowledge that she had been told and that it has always been at her residence.

She acknowledged that for her father, Victor, to get access, he would have to tell her. Have you been operating the vehicle except for that one day in question? No. I have been taking a bus. Who has to deal with the transfer? It would be me because dad transferred it. I have not done it because of finances. Who owns the vehicle? It would be me. My dad signed it.

Cross-Examination of Florence Latzoo

In cross-examination: have you told the MTO of the transfer? No, I have not told them. So as far as they are concerned, it is your father's? They would not know. But I have to pay $2200, approximately, to transfer the vehicle. So the transfer never took place? No. So, no physical proof that you are the owner? It is my father. He gave it to me. She then said it is my dad's car and I will take it out of his name when I get insurance.

On this point, based on the evidence of Ms. Florence Latzoo, I agree with the defence, that she was referring to the registration is her father's vehicle, but all of her testimony had been, including at the beginning of the cross-examination, that she was given the vehicle and that it was her responsibility.

Legal Analysis

R. v. Bedard

So I have submissions in case law. Two cases from the Prosecution, R. v. Bedard, where in paragraph five, Justice Titoche noted that the defence called no evidence, but the justice of the peace dismissed the charge on the basis that the Crown had produced no evidence the accused permitted the driver in question to operate the motor vehicle. And he goes on to say in paragraph nine, which is highlighted by the Prosecution:

"Do the words permit the operation of a motor vehicle on a highway create a positive state of mind such as intent, knowledge or recklessness, as spoken in R. v. Sault Ste. Marie? In my view, they do not. Had the legislation chosen to use the words knowingly, willfully, it could easily have done so. Permit is a broader term and does not embrace intent or recklessness. One may permit without being wilful or reckless, for example, simply by failing to take reasonable care."

And then on paragraph 13:

"Accordingly, in the case at bar, I am of the view that the section in question of the Compulsory Automobile Insurance Act is a strict liability offence."

We can of course, distinguish the R. v. Bedard case on the basis that the defence called no evidence. And in a case where the defence called no evidence, the Crown can still prove its case, that the charged individual did not fail to take reasonable care and it is a strict liability offence.

That case does not help the Prosecution in Mr. Latzoo's instance, in this case, because it can be distinguished. It does help Mr. Latzoo, in that it establishes that it is a strict liability offence. And as the Crown acknowledged, the proof on a strict liability offence shifts to the defendant on the balance of probabilities.

R. v. Miller

The Crown also provided the case of R. v. Miller, and that case, the Crown highlighted just with a line beside paragraph 46 and a completely highlighted paragraph 48 and made in submissions. In respect of 48, the issue of permission – paragraph 48 in the Miller case says:

"The issue of permission is similarly with the knowledge of the defendant as owner of the motor vehicle, it would have been his responsibility to keep control of the vehicle. Using Sault Ste. Marie case analysis, he could ensure it had controlled the activity of the vehicle, he was responsible for the activity of the vehicle."

He also highlighted paragraph 49 which is: prima facie liability is concurred when the defendant could have prevented the operation of a motor vehicle as it was under his control. Mr. Claxton indicated that exact point, that in the Miller case, the vehicle was under the owner's control. Whereas in the Latzoo case, the vehicle was under the control of Ms. Florence Latzoo, and there is no direct evidence it was under the control of Mr. Latzoo.

R. v. Huxtable

The defence also presented the case of R. v. Huxtable, 2012 ONCJ 611, which was another case where the Appellate Provincial Court overruled the justice of the peace. And that was where the justice of the peace convicted the defendant and the learned appellate justice said:

"The learned Justice of the Peace erred in finding the ownership of the vehicle had been established beyond a reasonable doubt. The normal rules of evidence would also apply to the fact driven determination of whether or not a defendant permitted his motor vehicle to be driven without insurance, and a fact-finder would be expected to consider all relevant evidence before the court."

This is paragraphs 15 and 16 of the R. v. Huxtable decision which is an October 2nd, 2012 decision of Justice Sheila Ray. In paragraph 16, it continues:

"The evidence would sometimes be direct, sometimes circumstantial, and sometimes a combination of both. Facts in issue cannot always be proved by direct evidence alone. That is why the need arises for the Prosecution to call circumstantial evidence and for the courts to consider it."

Similarly, that I would say in this case, the defendant provided circumstantial evidence which this Court must consider. And on paragraph 17, the Justice Sheila Ray indicates - it was a different factual situation and 17 indicates that:

"The circumstantial evidence in this case is that the driver was able to produce documents belonging to the owner at the scene, the driver and the owner had the same last name, and the vehicle was not reported stolen. The learned Justice of the Peace was satisfied that this was "prima facie" evidence that "the owner provided permission to the driver to drive the vehicle," and because there was "no evidence to the contrary," he convicted the appellant."

She disagreed.

"The ... conclusion of the learned Justice was not supported by the evidence. There is more than one inference that could be drawn the three factors upon which the Justice relied, even when viewed cumulatively. His conclusion was speculative and unreasonable."

Court's Findings and Decision

In respect to Mr. Latzoo's case, I am satisfied based on the evidence of Mr. Latzoo that he intended to give the vehicle to his daughter, Florence Latzoo, approximately a year or so ago. That, he gave her the ownership and it was signed, but not dated.

Her testimony is that she needs to pay approximately $2200 to get the vehicle registered in her name. She had the only set of keys to the vehicle. It was in an underground parking garage that only she had access to. She was advised by her father that the insurance had been cancelled. And even though she said I expected that insurance would not have expired until the end of the month, I find as a fact that she was advised in 2018 that the insurance had been cancelled, and she was driving the car on this one occasion on May 7th, 2019.

So she knew or ought to have known that the insurance was cancelled for many months prior to her driving it. I accept her evidence that she could not afford to transfer it into her name. I accept the defendant's - both his daughter, Florence Latzoo testified that the vehicle was given to her, although she could not afford to put it on the road, but Mr. Latzoo completely surrendered possession and control of that vehicle to his daughter, Florence Latzoo.

That satisfies the onus under a strict liability offence on the balance of probabilities that Mr. Latzoo was not the owner of this vehicle at the time and did not permit it to be driven on the date in question. Therefore I making a finding of not guilty.

Released: October 29, 2019

J.J. Ziegler, Justice of the Peace