Court File and Parties

Ontario Court of Justice

Date: 2020-10-06

Court File No.: Hamilton 18-4147

Between:

Her Majesty the Queen

— and —

Nicola Leopardi

Before: Justice J.P.P. Fiorucci

Heard on: March 3, 2020

Reasons for Judgment released on: October 6, 2020

Counsel:

• S. Skoropada, for the Appellant/Crown
• S. Petersen, Paralegal for the Respondent Nicola Leopardi

FIORUCCI J.:

INTRODUCTION

[1] Mr. Nicola Leopardi was charged with operating his motor vehicle on October 9, 2018 without insurance, contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (the "CAIA"). On May 29, 2019, His Worship Justice of the Peace G. Peace acquitted Mr. Leopardi following a trial.

[2] This is a Crown appeal from the acquittal, pursuant to sections 116 and 121 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA"). The Crown submits that the Justice of the Peace made an error of law when he held that the prosecution was required to prove, beyond a reasonable doubt, that Mr. Leopardi's motor vehicle was not insured. Instead, the Crown was only required to prove beyond a reasonable doubt that Mr. Leopardi was operating his motor vehicle on the date in question and that he did not produce proof of insurance upon demand by a police officer, or at any time thereafter. The Crown says that, in order to avoid conviction for the offence, Mr. Leopardi bears the burden of proving that, at the time of operation, the motor vehicle was insured under a valid contract of automobile insurance. Since Mr. Leopardi did not adduce any evidence at trial, the Crown submits that a conviction should have been entered.

[3] At the appeal hearing, Mr. Petersen, Paralegal for Mr. Leopardi, raised an additional issue. Mr. Leopardi made a pre-trial application before the Justice of the Peace seeking a stay of the charge of operating without insurance. Mr. Leopardi based his application on the Kienapple principle prohibiting multiple convictions. Prior to his trial date for the s. 2(1)(a) charge, Mr. Leopardi had paid the set fine and all applicable costs relating to the s. 3(1) CAIA offence of failing to surrender an insurance card. Mr. Leopardi asserted that his conviction for the s. 3(1) offence precluded the prosecution from seeking a conviction for the s. 2(1)(a) offence, since both charges arose from the same driving incident.

[4] The Justice of the Peace dismissed the pre-trial application. Mr. Leopardi submits that the Justice of the Peace erred when he dismissed the pre-trial application and permitted the prosecution to proceed to trial on the s. 2(1)(a) offence. Therefore, at the appeal hearing Mr. Leopardi sought leave to pursue a cross-appeal. Notwithstanding the absence of any prior written notice of cross-appeal, Ms. Skoropada for the Crown agreed that I should hear and decide the appeal and cross-appeal together. I have done so.

THE EVIDENCE

[5] The prosecution called one witness at the trial, P.C. Olivia Hutchison of the Hamilton Police Service. Mr. Leopardi did not testify, nor did he tender any other evidence.

[6] P.C. Hutchison conducted a traffic stop of Mr. Leopardi's vehicle on October 9, 2018 due to an expired validation sticker. Mr. Leopardi was the driver and registered owner of the vehicle on that date. P.C. Hutchison made a demand that Mr. Leopardi provide his driver's licence, ownership and insurance documents. Mr. Leopardi provided the officer with an expired insurance slip.

[7] P.C. Hutchison served Mr. Leopardi with a Part III POA summons for the s. 2(1)(a) CAIA operate without insurance charge, and an information was laid for that charge.[1] P.C. Hutchison also issued and served a Part I POA offence notice with a set fine for the s. 3(1) CAIA charge of failing to surrender an insurance card.[2]

[8] P.C. Hutchison testified that Mr. Leopardi did not provide proof of insurance to her at any time after she charged him with the offences. Furthermore, P.C. Hutchison had no knowledge of Mr. Leopardi ever providing proof of insurance.

[9] On October 25, 2018, Mr. Leopardi paid the set fine and all applicable costs and surcharges relating to the s. 3(1) CAIA offence, which amounted to a plea of guilty and conviction for that offence, and the imposition of a fine in the amount of the set fine.[3] Mr. Leopardi's trial for the s. 2(1)(a) CAIA offence took place on May 29, 2019.

JURISDICTION

[10] Although neither party raised the issue, I have considered my jurisdiction to hear Mr. Leopardi's cross-appeal.

[11] After the Justice of the Peace dismissed the stay application, Mr. Leopardi entered a not guilty plea to the s. 2(1)(a) charge. The trial proceeded on the merits and Mr. Leopardi was acquitted. Had the Crown not filed an appeal from the acquittal, Mr. Leopardi would have had no reason to challenge the Justice of the Peace's ruling on the stay application.

[12] However, the Crown has appealed the dismissal of the charge. Section 116(1)(b) of the POA provides that the Crown's appeal is to be heard by the Ontario Court of Justice presided over by a provincial judge.

[13] On this appeal, the Crown seeks a finding of guilt for operating without insurance, or in the alternative, an order for a new trial on that charge. Pursuant to s. 121(b)(ii) of the POA, as a provincial judge of the Ontario Court of Justice, I have jurisdiction to enter a finding of guilt for the offence if I find that Mr. Leopardi should have been found guilty at trial. I also have jurisdiction to pass sentence for the offence if I decide to enter a finding of guilt.

[14] Does this permit me on appeal to enter a finding of guilt for the s. 2(1)(a) offence without considering Mr. Leopardi's claim that the trial Justice erred when he dismissed the pre-trial stay application? If that were the case, this Court could enter a finding of guilt for the offence even if the charge should have been stayed by the Justice of the Peace. The resulting unfairness to the Defendant is obvious.

[15] However, s. 116(1)(a) of the POA provides the Defendant with an appeal to this Court from a conviction. The decision to deny the stay application was not a final order. It was a pre-trial ruling that did not result in a conviction. The POA does not provide for an appeal of such a ruling to this Court. Where then does jurisdiction exist for a provincial judge of the Ontario Court of Justice to review the Justice of the Peace's decision to deny Mr. Leopardi's stay application?

[16] In my view, the answer lies in the appeal provisions of the POA, in caselaw that has interpreted the interplay between the appeal and review provisions of the POA, and in the legislative intent behind the enactment of the POA.[4]

[17] In addition to sections 116 to 134 of the POA which provide for appeals under Part III, sections 140 and 141 provide for review applications to the Superior Court of Justice in the nature of mandamus, prohibition or certiorari. These prerogative writs lie for jurisdictional error.[5] Cases that have considered the interplay between the prerogative relief and appeal sections of the POA provide support for my view that this Court can and should determine the issue raised on the cross-appeal.

[18] Section 141(3) forecloses certiorari if an appeal is available for an order or ruling:

Where appeal available

141(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise.

[19] Mr. Leopardi did not seek prerogative relief in the Superior Court of Justice to review the dismissal of his stay application. Section 141(3) would not have precluded Mr. Leopardi from seeking prerogative relief since s. 116(1) does not provide for an appeal from this pre-trial ruling.

[20] However, courts have held that a Defendant must wait until the completion of the trial to challenge the correctness of unfavourable pre-trial or interlocutory rulings, provided that the trial court had the jurisdiction to make the ruling.[6] In R. v. 1353837 Ontario Inc., Laskin J.A. noted that "most erroneous pre-trial rulings or rulings made during a trial will be errors within jurisdiction".[7] Errors within jurisdiction are errors of law that are "appealable only at the end of the trial as part of an appeal against conviction, dismissal or sentence".[8]

[21] In R. v. Duvivier, the Ontario Court of Appeal set out the policy concerns that militate against applications for relief to the Superior Court during criminal proceedings. Doherty J.A. stated:

Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process.[10]

[22] In R. v. Arcand, Rosenberg J.A. held that those policy concerns also apply to proceedings under the POA:

As A. Campbell J. said in R. v. Felderhof at para. 14:

The appellate search for hypothetical error in the middle of a trial defeats not only the integrity of the trial process but also the efficacy of the appeal process. The only efficient way to deal with alleged errors, and the fairest way to both sides, is to wait until the trial is over and then to appeal. From a practical point of view, trials would be endless if mid-trial rulings could be appealed or reviewed.[11]

[23] Section 141(3) of the POA is not an absolute bar to a certiorari application that seeks to review a pre-trial or interlocutory ruling.[12] However, if a trial court does not exceed its jurisdiction when it makes an order, the correctness of that order is to be assessed on appeal, not by way of an application for prerogative relief. As Watt J. explained in R. v. Sarson:

Jurisdiction is concerned with the authority to decide an issue. It matters not to that authority the correctness of the decision.[13]

[24] In Mr. Leopardi's case, the Justice of the Peace had the jurisdiction to decide whether the s. 2(1)(a) CAIA charge should be stayed. Even if the Justice of the Peace erred when he denied the stay application, he did not lose jurisdiction. He had the right to be wrong on this issue.[14] For Mr. Leopardi, the proper way to deal with this alleged error was to wait until the trial was over and, if found guilty of the charge, to appeal his conviction to a provincial judge of the Ontario Court of Justice. Mr. Leopardi's appeal from conviction would include his claim that the trial Justice erred in dismissing his pre-trial stay application.

[25] Since Mr. Leopardi was acquitted, it was the Crown that commenced the appeal proceedings in this Court. Pursuant to s. 121(b)(ii), the Crown is asking that this Court enter a finding of guilt for the s. 2(1)(a) offence on the basis that Mr. Leopardi "should have been found guilty". In my view, for this Court to conduct a proper assessment of whether Mr. Leopardi should have been found guilty at trial, the Court must have the jurisdiction to review all errors allegedly made by the trial Court, including the pre-trial ruling dismissing Mr. Leopardi's application for a stay of proceedings.

[26] Mr. Leopardi does not lose the right to challenge the ruling in the POA Appeal Court simply because this is a Crown appeal from acquittal, rather than his appeal from conviction. Any other interpretation of s. 121(b)(ii) of the POA would result in Mr. Leopardi being exposed to a possible conviction in the POA Appeal Court without the right to challenge the pre-trial ruling in this Court.

[27] The legislative intent of the POA makes the POA Appeal Court the proper forum to address all errors allegedly made in the trial process. The Ontario Court of Appeal discussed the legislative intent of the POA in R. v. Courtice Auto Wreckers Ltd..[15]

[28] The question in R. v. Courtice Auto Wreckers Ltd. was whether s. 116(1)(b) of the POA provided the Crown with a right of appeal to a provincial judge of the Ontario Court of Justice from a stay of proceedings entered by a Justice of the Peace. The Justice of the Peace had entered the stay for a violation of the defendant's s. 11(b) Charter right to be tried within a reasonable time. The Court of Appeal found that the s. 11(b) stay was tantamount to a "dismissal" in s. 116(1)(b) of the POA, which gave the provincial judge of the Ontario Court of Justice jurisdiction to decide the Crown's appeal.

[29] In doing so, the Court of Appeal rejected the argument that the proper avenue for appealing the stay under the POA was by way of certiorari in the Superior Court of Justice. Since the Justice of the Peace had the jurisdiction to order the stay, if he was in error when he did so, it was an error of law. Therefore, the prerogative writs would not provide the Crown with a remedy in R. v. Courtice Auto Wreckers Ltd..[16]

[30] Rouleau J.A., writing for the Court, went on to note that his interpretation of s. 116(1)(b) of the POA was "in keeping with the scheme and intention of the Act".[17] He cited the Honourable R. Roy McMurtry, Q.C., then Attorney General for the Province of Ontario, who explained the purpose of the POA as follows:

... the proposed Provincial Offences Act ... creates a clear, self-contained procedural code to simplify procedures, eliminate technicalities, enhance procedural rights and protections, and remove the obstacle of delay from the assertion of rights and the conclusion of prosecutions: Provincial Offences Procedure: An Analysis and Explanation of Legislative Proposals: the Provincial Offences Act, 1978 and the Provincial Courts Amendment Act, 1978 (Toronto: Ministry of the Attorney General, 1978), at p. 1.[18]

[31] In R. v. Courtice Auto Wreckers Ltd., the Ontario Court of Appeal agreed with the Crown's submission that "challenging the correctness of a judicial stay by way of an appeal rather than through an application in the Superior Court is simpler and more straightforward than via the prerogative writs".[19] The Court of Appeal found that its interpretation of the term "dismissal" better achieved the intended purpose of the POA since "[f]or an accused, particularly one who is self-represented, responding to an appeal is more readily understood than being required to respond to an application for certiorari and to follow the procedures of the Superior Court".[20]

[32] In my view, the same purpose is achieved by having one hearing in the POA Appeal Court to determine the Crown's appeal and Mr. Leopardi's cross-appeal. The POA is meant to simplify procedures and permit Defendants to assert rights without delay using the self-contained procedural code in the POA. The POA Appeal Court is a forum that provides Mr. Leopardi and his Paralegal with a simple and straightforward means to assert that the Justice of the Peace committed an error of law when he dismissed the stay application.

[33] Accordingly, presiding as a POA Appeal Court, I find that I have jurisdiction to determine the prosecution's appeal from acquittal pursuant to sections 116(1)(b) and 121 of the POA, and that I also have jurisdiction to decide whether the Justice of the Peace made an error of law when he denied Mr. Leopardi's application to stay the proceedings.

THE CROSS-APPEAL: THE MULTIPLE CONVICTIONS RULING

The Position of the Parties on the Application

[34] First, I will address Mr. Leopardi's claim that the Justice of the Peace erred by failing to stay the proceedings. I note that the Defence filed pre-trial application materials and made oral submissions to the Justice of the Peace that characterized the issue as violations of Mr. Leopardi's section 11(h) and 11(i) Charter rights entitling him to a stay pursuant to s. 24(1) of the Charter.

[35] Mr. Leopardi's Paralegal submitted that his client had been found guilty and punished for the offence, and therefore could not be tried or punished for it again: s. 11(h) of the Charter. He argued that s. 11(i) of the Charter was also applicable. Section 11(i) provides that an offender found guilty of an offence for which the punishment has been varied between the time of commission and the time of sentencing is entitled to the benefit of the lesser punishment.

[36] Although Mr. Leopardi's Paralegal mischaracterized the Kienapple principle as "double jeopardy" and violations of sections 11(h) and (i) of the Charter, the essence of his argument to the Justice of the Peace was that Mr. Leopardi could not be convicted of the s. 2(1)(a) CAIA offence because he had already been convicted of the included offence contained in s. 3(1) CAIA.

[37] In her submissions to the Justice of the Peace, the trial prosecutor (not Ms. Skoropada) argued that neither the Charter nor Kienapple barred convictions for both offences because the elements of those offences are different.

The Ruling on the Application:

[38] The Justice of the Peace provided oral reasons for dismissing the stay application. He found that s. 11(i) of the Charter was inapplicable to Mr. Leopardi's case. Although the Justice of the Peace found that s. 11(h) of the Charter was "on point", he did not follow through with any analysis regarding its application to Mr. Leopardi's case.

[39] Instead, the Justice of the Peace returned to the question of whether the Kienapple rule against multiple convictions barred the prosecution from proceeding to trial on the s. 2(1)(a) charge. He ruled that it did not because the s. 2(1)(a) and s. 3(1) offences were clearly "separate and independent, not one lesser charge of another".

Analysis and Disposition of the Cross-Appeal:

[40] I find that the Justice of the Peace erred when he held that the s. 3(1) offence of failing to surrender an insurance card is not an offence included within the s. 2(1)(a) offence of operating a motor vehicle without insurance. However, I find that the dismissal of Mr. Leopardi's stay application was nonetheless the proper result. I make this finding for the following reasons.

[41] In my view, it is important to distinguish between the rule against multiple convictions articulated by the Supreme Court of Canada in the seminal case of Kienapple and the included offence rule.

[42] In Kienapple, the Supreme Court of Canada addressed the question of "[w]hether the accused, having been convicted of rape, should in respect of the same single act have also been convicted of sexual intercourse with a female under the age of fourteen, not being his wife",[21] which was known as the offence of unlawful carnal knowledge. It was common ground that unlawful carnal knowledge was not an included offence on a charge of rape.

[43] Laskin J. for the majority of the Court found that "there should not be multiple convictions for the same delict against the same girl".[22] This principle was reiterated by Dickson C.J. in R. v. Prince: "Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped on an accused in respect of a single criminal delict".[23]

[44] In Prince, the Supreme Court of Canada recognized that even before Kienapple there was "Canadian case law precluding multiple convictions in circumstances that did not fall neatly within the Plea of autrefois convict, or within s. 11 of the Criminal Code (prohibiting multiple punishment for the "same offence"), or within the requirements of an included offence under s. 589 [citations omitted]".[24] Therefore, the rule against multiple convictions articulated in Kienapple, and revisited in Prince, operates to bar convictions beyond those that are barred by the included offence rule.

[45] An accused cannot be convicted of two offences where one is an included offence of the other. For instance, in Kienapple, Laskin J. gave the example of an accused charged with manslaughter and assault of the same victim on the same indictment and observed that the accused could not be convicted of both because of the included offence rule.

[46] In Mr. Leopardi's case, if s. 3(1) CAIA is an offence included within the s. 2(1)(a) CAIA offence, a conviction for the s. 2(1)(a) offence would bar a conviction for the s. 3(1) offence. What complicates the analysis is that the two offences were not included on the same information and were not prosecuted together.

[47] In a brief oral judgment in R. v. Salamon, our Court of Appeal described the offence of failing to surrender insurance (s. 3(1)) as the lesser included offence to operating a motor vehicle without insurance (s. 2(1)).[25] However, the Court of Appeal did not explain why s. 3(1) is an included offence. In my view, s. 3(1) is an included offence within s. 2(1)(a) because the greater offence of operating a motor vehicle without insurance contains the essential elements of the s. 3(1) offence.[26] Furthermore, the "description of the offence as set out in the offence creating it" is sufficient to inform the accused of the included offence which he must meet.[27]

[48] Section 2 of the CAIA states:

Compulsory automobile insurance

2. (1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

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

Offence

(3) Every owner or lessee of a motor vehicle who,

(a) contravenes subsection (1) of this section or subsection 13 (11); or

(b) surrenders an insurance card for inspection to a police officer, when requested to do so, purporting to show that the motor vehicle is insured under a contract of automobile insurance when the motor vehicle is not so insured,

is guilty of an offence and is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000 and, in addition, his or her driver's licence may be suspended for a period of not more than one year.

[49] Section 3 of the CAIA states:

Operator to carry insurance card

3. (1) 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.

Offence

(3) A person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not more than $400.

[50] The question to ask is whether the s. 2(1)(a) offence may be committed without committing the s. 3(1) offence.[28] In other words, does the commission of the s. 2(1)(a) offence as described in the CAIA necessarily include the s. 3(1) offence?[29]

[51] An owner or lessee of a motor vehicle who operates that motor vehicle without it being insured under a contract of automobile insurance would be unable to have an insurance card in the motor vehicle available to surrender for reasonable inspection upon the demand of a police officer, since no such insurance card would exist. Section 3(1) contemplates the surrender of a valid insurance card evidencing that the motor vehicle is insured on the date of operation. Producing an expired insurance card does not meet the requirements of the section.

[52] The purpose of s. 3(1) is to provide a means by which a police officer can confirm, at the roadside, that a motorist is properly insured. This purpose is achieved by placing an obligation on the operator to produce proof of valid and current insurance upon the demand of a police officer. An owner or lessee who is operating an uninsured motor vehicle when he is stopped by a police officer and who receives a demand from the officer for proof of insurance is committing the s. 2(1)(a) offence and is of necessity also committing the s. 3(1) offence since he is unable to surrender proof of valid and current insurance to the officer. Therefore, s. 3(1) is a lesser and included offence to the s. 2(1)(a) offence.

[53] Mr. Leopardi entered a guilty plea to the lesser and included offence by paying the set fine and all applicable costs and surcharges before his trial date for the more serious offence. Does Mr. Leopardi's plea to the lesser offence permit him to escape conviction for the more serious offence? In my view, it does not.

[54] I rely on the Supreme Court of Canada's decision in R. v. Loyer[30] for my finding that the dismissal of Mr. Leopardi's stay application was the proper result. I find that the Crown was entitled to proceed with the trial of the more serious offence of operating a motor vehicle without insurance despite Mr. Leopardi's earlier plea of guilty to the lesser and included offence.

[55] The two accused in Loyer were charged with the offences of attempted armed robbery with a knife (which carried a penalty of up to fourteen years imprisonment) and possession of a weapon, a knife, for the purpose of committing an offence (which carried a penalty of up to five years imprisonment). The two accused entered guilty pleas to the less serious charge of possession of a weapon. The trial proceeded on the attempted robbery with a knife charge and the Crown established culpability for this more serious charge beyond a reasonable doubt. However, the trial judge acquitted the accused, relying on the Kienapple principle precluding multiple convictions. The trial judge then sentenced the accused on the weapons possession charge.

[56] The Supreme Court of Canada noted that attempted armed robbery with a knife was obviously the more serious charge because it carried a lengthier maximum sentence of imprisonment. The Court stated:

The Kienapple doctrine cannot apply to bar a conviction of the more serious offence of which (as here) the accused would otherwise, on the evidence, be found guilty simply by offering a plea of guilty to the less serious offence and having the plea accepted.[31]

[57] The Court offered guidelines on the proper application of the Kienapple principle, including:

However, if, as was the case here, the accused pleads guilty to the less serious charge, the plea should be held in abeyance pending the trial on the more serious offence. If there is a finding of guilty on that charge, and a conviction is entered accordingly, the plea already offered on the less serious charge should be struck out and an acquittal directed.[32]

[58] The Court noted that "an accused cannot frustrate the trial on the more serious charge by pleading guilty to the less serious one".[33] In Loyer, the Court set aside the acquittal on the charge of attempted armed robbery and entered a conviction for that offence. Since the accused had been sentenced on their guilty pleas to the less serious charge of possession of a weapon, the Court noted that the proper course was to set aside the conviction and sentence on that less serious charge in recognition of the rule against multiple convictions.

[59] I can see no reason why the same procedure should not be followed in Mr. Leopardi's case. If I find that his acquittal on the charge of operating a motor vehicle without insurance should be set aside and a conviction entered, the conviction and sentence on the lesser and included s. 3(1) offence should be set aside.

[60] It matters not that the officer proceeded under Part I for the s. 3(1) offence and under Part III for the s. 2(1)(a) offence. Mr. Leopardi cannot frustrate the prosecution of the more serious offence by simply taking advantage of the summary procedure for payment and conviction on the lesser offence before the court process for the more serious offence can take its course. If an accused could circumvent the prosecution of the more serious offence in this way it would bring the administration of justice into disrepute.[34]

[61] Mr. Leopardi relied upon Bagheri v. Allstate Insurance Co. of Canada, an Ontario Insurance Commission Arbitrator's decision as authority for his submission that the s. 2(1) CAIA charge should be stayed when an accused is found guilty of the s. 3(1) CAIA offence.[35] With respect, the Arbitrator's decision, which was later affirmed by the Director of Arbitrations, dealt with the issue of whether an uninsured driver was entitled to receive statutory accident benefits for injuries sustained in a motor vehicle collision. An uninsured driver would be disentitled to such benefits if he or she was convicted of operating the automobile while it was not insured.

[62] In the Ontario Court (Provincial Division) proceedings, a Justice of the Peace had relied on the Kienapple principle to stay the s. 2(1) charge because Mr. Bagheri had been convicted of the s. 3(1) offence. The Arbitrator found that Mr. Bagheri would only be disentitled to benefits under the Statutory Accident Benefits Schedule if he was convicted of the s. 2(1) offence, and no such conviction had been entered.

[63] The Bagheri case does not provide support for Mr. Leopardi's position. On the contrary, the Arbitrator questioned the decision of the Justice of the Peace:

While it could be argued that the elements of the offence of failing to carry and produce a valid insurance card under section 3(1) of the Compulsory Automobile Insurance Act are included in the more serious offence of operating an automobile while not insured, under section 2(1) of the Compulsory Automobile Insurance Act, the reverse cannot be asserted. A conviction under section 3(1) does not carry with it the elements of a conviction under section 2(1). A plain reading of the relevant sections of the legislation makes it clear that a conviction under section 3(1) of the Compulsory Automobile Insurance Act is not "exactly the same offence, exactly the same circumstance" as a conviction under section 2(1) of the Compulsory Automobile Insurance Act, regardless of the submissions of the Applicant's representative to the Justice of the Peace.[36]

[64] Having found that the dismissal of Mr. Leopardi's stay application was the proper result for the reasons outlined above, I move on to consider whether the Justice of the Peace erred in law when he acquitted Mr. Leopardi of the s. 2(1)(a) CAIA offence.

CROWN APPEAL FROM ACQUITTAL ON SECTION 2(1)(a) CAIA

The Position of the Parties at Trial

[65] Mr. Leopardi did not dispute that he was the owner of the motor vehicle he was operating when he was stopped by the police officer. The Defence argued that the Crown had not proven the operate without insurance charge beyond a reasonable doubt. The officer testified that Mr. Leopardi provided her with an expired insurance slip but there was no evidence from the officer that she contacted any insurance company or made any inquiries after receiving the expired slip, and the Crown tendered no evidence from an insurance agent to establish that there was no contract of automobile insurance. The essence of the Defence argument was that it was incumbent on the Crown to elicit evidence that no contract of insurance existed at the time of Mr. Leopardi's operation of the motor vehicle.

[66] The Crown argued that the evidence established that Mr. Leopardi was the owner and operator of the motor vehicle on the date in question and that he had not provided proof that the motor vehicle was insured, which was sufficient to make out the s. 2(1)(a) CAIA offence beyond a reasonable doubt.

The Verdict at Trial:

[67] The Justice of the Peace accepted the Defence position. He stated:

On the information, it would be the normal course of practice, based on this court's experience, that the requirement would be that the officer would provide some evidence to support that the individual at the time in question was driving without insurance. I think the position of the defence is upheld. There was a suspicion there was no insurance. We found out that there has been no action taken to provide that and there was an expired insurance card.

…In these matters it is not any doubt but reasonable doubt, but I am satisfied on hearing the evidence provided by the Crown on this that there is reasonable doubt whether the individual, Nicola Leopardi, in fact was driving without a contract of insurance. I acknowledge that there is an expired card and I acknowledge there was a suspicion that there is no insurance, but I have no confirmation to support that. On that basis there will be a finding of not guilty and the matter ends.

Analysis and Disposition of the Crown Appeal:

[68] Mr. Leopardi did not produce proof of valid and current insurance to P.C. Hutchison. There was no evidence tendered at trial to establish that Mr. Leopardi's motor vehicle was insured on the date of operation, or that Mr. Leopardi made reasonably diligent efforts to ensure the motor vehicle was insured.

[69] In R. v. Zachariou, the POA Appeal Court addressed the burden of proof in a prosecution under s. 2(1) of the CAIA.[37] Justice MacDonnell[38] followed earlier authorities that held that the words "unless the motor vehicle is insured under a contract of automobile insurance" in s. 2(1) of the CAIA triggers the operation of s. 47(3) of the POA. Section 47(3) places on the Defendant the burden of proving that "an exception, exemption or qualification prescribed by law operates in favour of the defendant".

[70] Therefore, Justice MacDonnell held that, in a s. 2(1) prosecution, s. 47(3) of the POA places a constitutionally valid burden on the Defendant to prove the existence of insurance for the motor vehicle.[39] He noted that the important objective of s. 2(1) which is to ensure that motor vehicles on the highway are insured under a contract of insurance can only be achieved by placing the burden on the owner to establish valid insurance:

The CAIA requires the owner of a motor vehicle to enter into a contract of insurance but it leaves the choice of insurer to the owner. The contract is a private arrangement with a third party, and the status of that arrangement is, as between the government and the owner, a matter peculiarly within the knowledge of the owner. Whether a contract of insurance is in force at any particular time is not a matter that the government can reasonably be expected to know. In my view, the fact that the legislation would be virtually unenforceable were the burden on the Crown is a relevant consideration with respect to whether the legislature intended to put the burden on the Crown.[40]

[71] In a s. 2(1) CAIA prosecution, the Crown is not required to prove the absence of insurance beyond a reasonable doubt "by leading evidence that no insurance company had coverage for the vehicle in question".[41] Section 2(1)(a) is a strict liability offence.[42] Once the Crown establishes beyond a reasonable doubt that the owner of the motor vehicle was operating the motor vehicle and "could not produce proof of valid insurance upon demand the offence is complete.[43]

[72] The Defendant can avoid conviction for the s. 2(1)(a) offence by producing proof that a valid contract of insurance was in place at the time of operation. The Defendant can also avoid conviction by successfully asserting a due diligence defence or the defence of reasonable mistake of fact.

[73] The defence of due diligence requires the Defendant to establish, on a balance of probabilities, that he made reasonable efforts to ensure that the motor vehicle was insured.[44]

[74] A Defendant may claim that he made a reasonable mistake of fact as to the existence of valid insurance. A reasonable mistake of fact will normally require the Defendant to establish that he "took all reasonable steps and made all reasonable inquiries to determine the correct information".[45] As Brophy J. stated in R. v. Ward, "[i]n strict liability cases, the defendant must establish that the mistake of fact was not only an honest one, but there were reasonable grounds for it".[46]

[75] Mr. Leopardi elected not to testify at his trial. He tendered no evidence to establish the existence of valid insurance, nor did he tender evidence to establish that he made reasonable efforts to ensure that his motor vehicle was insured, or that he made a reasonable mistake of fact regarding the existence of valid insurance for his motor vehicle at the time of operation.

[76] I find that the Justice of the Peace fell into error when he found that the prosecution must establish the absence of insurance beyond a reasonable doubt. For the foregoing reasons, I find that Mr. Leopardi should have been found guilty of the s. 2(1)(a) offence at trial.

[77] One final note. At one point in his oral argument on this appeal, Mr. Leopardi's Paralegal suggested that the Defence had not pursued either a due diligence or reasonable mistake of fact defence at trial because it believed the defence it put forward was "strong enough". At the hearing of this appeal, Mr. Leopardi's Paralegal did not make an application, pursuant to s. 117(1)(d) of the POA, to introduce fresh evidence on the appeal. Mr. Leopardi's Paralegal did not provide details of the evidence the Defence would have tendered at trial if it had pursued a due diligence or mistake of fact defence.

[78] Even if Mr. Leopardi had made an application to adduce fresh evidence on this appeal, he may have faced a significant hurdle to the reception of that evidence due to finality concerns, especially if the proffered evidence was not conclusive.[47]

CONCLUSION

[79] The acquittal on the s. 2(1)(a) CAIA operate without insurance charge is set aside and a finding of guilt is entered for that offence. The conviction and sentence for the lesser and included s. 3(1) CAIA offence of failing to surrender an insurance card (Ticket No. 4760-0048070F) is set aside.

[80] Mr. Leopardi and the Crown will appear before me to make submissions on sentence.

Released: October 6, 2020

Signed: Justice J.P.P. Fiorucci