Court File and Parties

Ontario Court of Justice

Date: November 27, 2019

Court File No.: 3161 999 17 000179

In the Matter of: An appeal under section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— and —

Naseem Ahmad Appellant

Before: Justice M.M. Rahman

Reasons for Judgment released: November 27, 2019

Counsel:

• Kashif Ali, for the appellant
• Ravi Amarnath and Edward Estoppey, for the respondent

On appeal from: The conviction and sentence by Justice of the Peace M. Barnes on February 26, 2018

RAHMAN J.:

1. Overview

[1] On December 19, 2016, a woman was waiting on the arrivals level at Pearson International Airport. She was approached by a man. He whispered, "taxi." When the woman asked the price, the man instructed her to follow him. The man led the would-be passenger to the parking garage. As they walked, the man walked ahead of his fare, and made arrangements with someone on the phone. A taxicab pulled up. The appellant, who was driving the taxi, got out and put the woman's luggage in the trunk. They agreed on a price, and the woman told him her destination. Shortly after leaving the airport, a police car stopped the taxi. Unfortunately for the appellant, his passenger was Peel Regional Police Constable Gillian Davis. She was working undercover. Her job that day was to wait in the terminal until she was approached by a "scooper." That is the term used for people, like the appellant, who are not authorized to pick up passengers at the airport.

[2] The appellant was convicted, after a trial, of picking up a passenger for compensation, without having the proper authorization to do so. He was fined $1000 and placed on probation for one year. He now appeals his conviction and sentence.

[3] The main issue on the conviction appeal is whether the enforcement of s. 39.1(1) of the Highway Traffic Act (HTA) at Pearson Airport violates the constitutional principle of interjurisdictional immunity. The appellant argues that the provision, even if a valid exercise of provincial power, cannot apply on federal land to a federal undertaking, such as an airport.

[4] Aside from the constitutional issue, the appellant also argues that the trial court improperly reversed the burden of proof by requiring him to show that he was authorized to pick up fares at the airport. The appellant also argues that he was subject to entrapment by the police and that the proceedings against him should have been stayed.

[5] On his sentence appeal, the appellant argues that the fine is excessive for someone who has never committed this offence before. He also said that a probation order is excessive in his circumstances. Alternatively, if probation is appropriate, he asks that the condition prohibiting him from picking up any fares at the airport be varied to allow him to pick up fares if he is properly authorized.

[6] These reasons explain why the appellant was properly convicted under a provision that is enforceable at the airport, and why I would vary the sentence imposed on him at trial.

2. Facts of the Offence

[7] On December 19, 2016, Peel Regional Police Constable Gillian Davis was assigned to act as an undercover officer at Pearson International Airport. Her job was to wait at the arrivals level until she was approached by someone soliciting a ride. She was in plainclothes and working with another undercover officer, Cst. Deol.

[8] A man approached her and whispered "taxi, taxi" while standing behind her. Cst. Davis asked about the price for a taxi and they negotiated a price. The man told Cst. Davis to follow him. The man walked about five feet ahead of her. He was speaking to someone on the phone using a Bluetooth earpiece. The officer could hear the man making arrangements with whomever he was talking to.

[9] The officer got into the elevator with the man and they got off on level four at the south bridge in the airport's parking garage. The man told Cst. Davis that the wait would not be long. About two minutes later, a black Lincoln pulled up to where they were standing. It had a Royal Taxi sign on it. The appellant, who was driving the taxi, got out and approached Cst. Davis and Cst. Deol. He took the officer's luggage and put it in the trunk. After Cst. Davis and Deol got into the taxi, the appellant was speaking with someone on the phone. The appellant then asked Cst. Davis where she was going. Cst. Davis gave the appellant the address of a hotel on Mississauga Road. The appellant told her that the cost of the trip would be $61.[1]

[10] Soon after leaving the airport, Cst. Paisley, who was driving a marked police car, pulled over the appellant's taxi. Cst. Paisley said that he would have asked the appellant if he had the requisite authority to pick up passengers at the airport. After identifying the appellant with his driver's license and Toronto taxi license, he ultimately summonsed the appellant for this offence.

3. Grounds of Appeal on the Non-Constitutional Issues

[11] I will deal first with the grounds of appeal alleging that the trial court reversed the burden of proof and that the appellant was entrapped.

3.1 The Trial Court Properly Applied the Burden of Proof

[12] The appellant argues that the burden was on the prosecutor to prove that he lacked the necessary authorization to pick up passengers for compensation at the airport. The appellant argues that the lack of authorization is an element of the offence and that it is up to the prosecutor to present evidence from the airport authority that he lacked the requisite authorization.

[13] The appellant's argument on this issue ignores s. 47(3) of the Provincial Offences Act (POA). That provision says that the burden to prove that an "authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant." In my view, that provision applies here.

[14] Subsection 47(3) codifies a common law principle referred to in R. v. Edwards. In Edwards, the court explained that the Crown need not prove the accused's lack of authorization, license, or qualification, where the offence being prosecuted prohibits the doing of certain acts subject to having an authorization, or qualification.

In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely the exception. [2] [emphasis added]

[15] Many provisions dealing with public welfare fall into this category of offences. Such offences prohibit the doing of an act except for people who possess a license or authorization to do so. Subsection 39.1(1) is such a provision. It prohibits conduct (picking up a passenger for compensation) in circumstances where authorization is required. The prosecutor does not have to prove the absence of the authorization as an element of the offence. The onus is on defendants to show that they have the requisite authorization. The reverse onus is particularly apt in cases where some type of licensing or authorization scheme exists. As the Court of Appeal observed in R. v. Lee's Poultry, "How could it be unfair to ask a person to produce his license or evidence that he has one. Surely, it is the sensible thing to do."[3]

[16] It is also significant that s. 39.1(4) requires those drivers who are authorized to pick up passengers to carry the authorization with them, and to provide it to a peace officer.

(4) Every driver of a motor vehicle other than a bus who picks up a passenger for the purpose of transporting him or her for compensation where a licence, permit or authorization is required to do so, as described in subsection (1), shall,

(a) carry the original or a copy of the required licence, permit or authorization; and

(b) upon the demand of a police officer or officer appointed for carrying out the provisions of this Act, surrender the original or copy of the required licence, permit or authorization for reasonable inspection. 2005, c. 26, Sched. A, s. 4; 2015, c. 27, Sched. 7, s. 13 (2).

[17] Finally, it is important to consider the nature of a POA proceeding. The POA is "intended to establish a speedy, efficient and convenient method of dealing with offences under Acts of the Legislature and under Regulations or by-laws made under the authority of an Act of the Legislature."[4] It would run counter to the nature of a POA proceeding to require the prosecutor to conduct a search of the various licenses, permits, or authorizations permitting a driver to pick up a passenger for compensation in order to adduce evidence of the absence of such authorization.

[18] The trial court correctly held that it was the appellant's onus to establish that he had the requisite authority to pick up passengers.

[19] This ground of appeal fails.

3.2 Entrapment

[20] The appellant argues that the police entrapped him. The entrapment defence is not a defence on the merits of a charge. Entrapment is a form of abuse of process.[5] A defendant who wants to allege entrapment must bring an application to stay proceedings after the court has rendered its verdict.[6] A court may stay a prosecution because state officials have entrapped a defendant by either engaging in random virtue testing, or by inducing the defendant to commit the offence.[7] It is the former kind of entrapment that is alleged here.

[21] The appellant argues that the police lacked reasonable suspicion that he was involved in any illegal conduct. The appellant did not bring an application to stay proceedings for entrapment. Rather, during closing submissions on the trial proper, he tried to make submissions about entrapment. The prosecutor objected because there was no application, and because the issue was never put to any of the police witnesses. The appellant did not make any further submissions on the issue. At the hearing of the appeal, the appellant's representative, Mr. Ali, said that he was content to rely on the evidence heard at trial to make his entrapment argument, and that he would not have called any more evidence on the issue.

[22] It is questionable whether the entrapment defence applies to the investigation of this type of regulatory offence. In R. v. Clothier, the Court of Appeal held that entrapment does not apply to the enforcement of the Smoke Free Ontario Act.[8] Although the enforcement of s. 39.1 of the HTA is not identical to the monitoring of those who voluntarily agree to sell tobacco, it is similar. The provision in question is directed at preventing drivers picking up passengers for hire. Driving is a privilege. Moreover, picking up passengers for hire at an airport -- a highly regulated place -- is prohibited under both federal and provincial law. Requiring authorities to have reasonable suspicion of unlawful activity before investigating an individual does not fit comfortably with such a regulatory environment. Police enforce traffic laws by "randomly" stopping motorists to ensure they are complying with provincial traffic laws. It makes sense that the authorities can effectively monitor compliance with this, and other regulations, proactively. It is hard to see anything offensive or abusive about the police enforcing the HTA using an undercover officer inside an airport. However, I do not have to decide whether the entrapment doctrine applies to the police's enforcement action here.

[23] Assuming the entrapment defence could apply to this type of investigation, the appeal still cannot succeed. As mentioned above, the appellant did not properly bring an application to stay the proceedings. At such a hearing, the respondent would have been able to properly respond with evidence about why the police were investigating scoopers at the airport. And it is likely that the respondent would have been able to adduce that evidence. I say that because Cst. Paisley testified that the police were conducting enforcement related to illegal taxis and limos that were operating at the airport without proper authority. He also testified that he had spoken with the Greater Toronto Airport Authority before conducting the investigation. If that evidence on its own was not sufficient, it is reasonable to infer that the respondent would have been able to establish that the police had reasonable suspicion that the prohibited activity was taking place at the airport. If they had such reasonable suspicion, there would be no entrapment.[9]

[24] This ground of appeal also fails.

4. The Constitutional Ground of Appeal

[25] In his notice of appeal and factum, the appellant argued that s. 39.1 was ultra vires or, alternatively, that it ought not to apply at the airport because of interjurisdictional immunity. The appellant did not strongly press the ultra vires argument in oral submissions, and focussed his submissions on interjurisdictional immunity. Because the appellant did not abandon the ultra vires argument, I will deal with it briefly.

4.1 Section 39.1 is Intra Vires

[26] As the appellant appeared to acknowledge during oral argument, s. 39.1 is valid provincial traffic legislation. The pith and substance of the provision is to regulate commercial driving in Ontario. That is a valid provincial objective. This authority to regulate the vehicles and highways is well-established. The province has authority to pass legislation regulating drivers picking up fares for compensation. Simply because the provision may incidentally impact on an area of federal jurisdiction does not make the law ultra vires. The real issue in this appeal is whether the legislation can be enforced at the airport.

4.2 Interjurisdictional Immunity Does not Apply

[27] The doctrine of interjurisdictional immunity is not written into the constitution. Courts created it.[10] Interjurisdictional immunity prevents the enforcement of an otherwise valid provincial law from impairing the core elements of a federally regulated undertaking.[11] An airport is such an undertaking.

[28] The appellant's interjurisdictional immunity argument turns on whether the enforcement of s. 39.1(1) of the HTA goes to the core of the federal power to regulate aeronautics. The appellant argues that the operation of taxis and limousines goes to the core of aeronautics and the operation of an airport because a modern airport could not function without ground transportation to take people from the airports to their ultimate destinations. In making this submission, the appellant relies heavily on the Court of Appeal's decision in Greater Toronto Airport Authority v. City of Mississauga.[12] Specifically, the appellant relies on the following passage in support of his submission that the core of the federal aeronautics power goes beyond regulating planes and extends to airport activities that take place on the ground:[13]

[35] The case law has rendered the distinction between airside and ground-side facilities argued for by Mississauga untenable. The Supreme Court of Canada has held that the federal jurisdiction over aeronautics includes much more than aerial navigation in the strict sense. It includes the construction of airport buildings and the operation of airports. Iacobucci J. concisely stated the scope of the federal aeronautics power in Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581 at p. 610, 148 D.L.R. (4th) 193 at p. 212: ". . . the federal aeronautics jurisdiction encompasses not only the regulation of the operation of aircraft, but also the regulation of the operation of airports". I therefore agree with MacPherson J.'s conclusion on this point, at p. 28:

However, it is clear that federal jurisdiction is not just celestial; it is also terrestrial. It extends to those things in the air and on the ground that are essential for "aerial navigation" or "air transportation" to take place.

A long line of cases establishes that airports, or in the early cases "aerodromes", are integral to the subject-matter of aeronautics. Johannesson itself dealt with the location of an aerodrome in Manitoba.

[29] The appellant also relies on the fact that federal regulations exist prohibiting the same activity as s. 39.1(1) of the HTA.[14] The appellant says the existence of such regulations is an indication that the operation of taxis and limos at the airport is connected to the operation of the airport.

[30] I cannot accept the appellant's submission that interjurisdictional immunity applies here. The appellant's argument has some superficial attraction. After all, not only is the airport a federal undertaking, but the federal government has promulgated regulations that quite comprehensively regulate traffic issues in the environs of Canada's airports. However, I accept the respondent's submission that the enforcement of s. 39.1(1) on airport property does not affect or impair the core of the aeronautics power.

[31] The doctrine of interjurisdictional immunity will bar the application of an otherwise valid provincial law to the extent that the law impairs the vital or essential core of a federal undertaking.[15] In determining whether a given activity is at the core of a federal undertaking, a court must examine whether the activity is "essential to the existence of something, absolutely indispensable or necessary; extremely important or crucial."[16]

[32] I agree with the respondent that the provision of taxi services is not essential for aerial navigation or air transportation. I cannot accept the appellant's argument that because the availability of taxis is an important feature of an airport that it is essential for the functioning of the airport. Rather, I agree with the respondent that the availability of taxi service is more like the sale of liquor on an aircraft or the operation of airport limousine and parking services. These activities may seem important for an airport to function. After all they are amenities that the travelling public likely expects to see at any major airport. And these amenities, no doubt, allow an airport to function more smoothly. Despite their prevalence and usefulness at airports, these activities are not integral, in the legal sense, to the operation of airports. Indeed, all of these activities have been found not to be integral to the operation of airports as far as the interjurisdictional immunity doctrine is concerned.[17]

[33] Even if I had found that the enforcement of s. 39.1(1) HTA somehow affects an activity that is vital or essential to a federal undertaking, I cannot find that its enforcement impairs the vital or essential core of the undertaking. Interjurisdictional immunity does not just require a law to touch on the core of the undertaking but to impair it in some way. As the respondent observes, the airport authority may license whomever it sees fit to pick up fares at the airport. It is difficult to see how a provision that requires drivers to adhere to an airport authority's own licensing regime can be seen as impairing the operation of the airport. As Mr. Amarnath eloquently observed at the end of his submissions, "A measure that has the effect of requiring drivers to conform to the airport's own licensing regime cannot be understood as impairing the operation of an airport. If anything, it is in perfect harmony with it."

[34] Section 39.1 of the HTA does not impair the operation of the airport. Consequently, its enforcement at Pearson Airport was valid and the appellant's constitutional complaint fails.

5. Disposition of Conviction Appeal

[35] The appeal against conviction is dismissed.

6. Sentence Appeal

[36] The applicant appeals the $1000 fine. He also asks that condition #1 of his probation order be varied so that he can pick up fares at the airport if he is properly licensed to do so.

[37] At trial, the prosecutor asked for a $2000 fine and the applicant suggested a fine in the range of $500 to $1000. The fine imposed at trial within the range of the fine acknowledged by the applicant to be appropriate. At the hearing of the appeal, the respondent argued that a fine should be significant enough to deter unauthorized operators such that the risk outweighs the reward. However, the respondent did very fairly acknowledge that, in the appellant's circumstances, a $500 fine would be a significant penalty.

[38] The appeal against sentence is allowed and the sentence is varied to a fine of $500. The probation order is varied to delete condition #1 and substitute in its place a condition that the appellant may not pick up fares at the airport unless he is licensed by the airport authority to do so.

Released: November 27, 2019

Justice M.M. Rahman

Footnotes

[1] Most of the evidence about what took place in the taxi came out during cross-examination. During examination in-chief, the prosecutor asked to hold a voir dire about the statements that the appellant made to the officer. He then abandoned the voir dire and his attempt to tender anything the appellant said because Cst. Deol was unavailable. It appears that the prosecutor believed he had to prove the voluntariness of statements made by the appellant to Cst. Davis. He did not. No voir dire was required to admit those statements. As long as the officer was undercover she was not, as far as the appellant was concerned, a person in authority: R. v. Hodgson, [1998] 2 SCR 449 at paras. 25 and 39; R. v. Singh, 2007 SCC 48 at para. 40.

[2] R. v. Edwards, [1975] Q.B. 27.

[3] Ibid. at pp. 39-40. See also R. v. Williams, 2008 ONCA 173 at para. 25.

[4] R. v. Lee's Poultry Ltd., (1985), 17 C.C.C. (3d) 539 (Ont. C.A.) at p. 544.

[5] R. v. Sciascia, 2017 SCC 57 at para. 18 citing R. v. Jamieson (1981), 64 C.C.C. (2d) 550 (C.A.) aff'd (1982), 66 C.C.C. (2d) 576 (C.A.).

[6] R. v. Pearson, [1998] 3 SCR 620 at paras. 6-8.

[7] R. v. Imoro, 2010 ONCA 122 at para. 24.

[8] R. v. Barnes, [1991] 1 SCR 449 at p. 460.

[9] R. v. Clothier, 2011 ONCA 27.

[10] R. v. Barnes, supra, at p. 463.

[11] It appears that the interjurisdictional immunity doctrine first emerged in the Judicial Committee of the Privy Council's decision in John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.).

[12] Although interjurisdictional immunity applies to protect the core of federal undertakings, the federal government is not usually the one to complain that the province is encroaching on its jurisdiction. Rather, as in this case, it is often parties affected by the enforcement of an otherwise valid provincial law who seek to escape its application to them.

[13] Greater Toronto Airport Authority v. City of Mississauga, (2000), 50 O.R.(3d) 641.

[14] Ibid. at para. 35.

[15] Government Airport Concession Regulations, SOR/79-373; Traffic on the Land Side of Airports Regulations, SOR/2006-102; Airport Traffic Regulations, C.R.C. c. 886.

[16] There is some judicial dicta and academic commentary that suggests that the doctrine also prevents the enforcement of a valid federal law on the core of a provincial sphere, although no cases have actually restricted the application of a federal law for that reason: Patrick J. Monahan and Byron Shaw, Constitutional Law 4th ed. (Toronto: Irwin Law, 2013) at p. 131.

[17] Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22 para 51.

[18] Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581 (sale of liquor on aircrafts); Re Colonial Coach Lines Ltd. et al. v. Ontario Highway Transport Board et al. (1967), 2 O.R. 25 (H.C.), aff'd, [1967] 2 O.R. 243 (limousine service); Toronto Auto Parks (Airport) Ltd. v. Canadian Union of Public Employees, [1978] O.J. No. 1187 (H.C.) (parking facilities).