Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 06 11 COURT FILE No.: Halton Region 1260-999-22-8253-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

ELLA MCCARTY

Before Justice Scott Latimer Heard on April 24, 2024 Reasons for Judgment released on June 11, 2024

Counsel: S. Bhatnagar......................................................................................... Provincial Prosecutor E. McCarty ................................................................................................... on her own behalf

LATIMER J.:

[1] Ella McCarty was found guilty of driving a vehicle without insurance contrary to section 2(1)(a) of the Compulsory Automobile Insurance Act. This finding followed a contested trial where Ms. McCarty was additionally acquitted of making a lane change without first ascertaining that she could do so safely, contrary to section 154(1)(a) of the Highway Traffic Act. She now appeals her conviction.

[2] The parties made brief submissions on April 24, 2024, but have otherwise agreed to proceed in writing. I have reviewed their facta and the trial transcripts. I have concluded that Ms. McCarty’s appeal should be dismissed. In explaining this result, I will review the facts in this case and the trial process before addressing the complaints made on appeal. The bottom line, however, is that Ms. McCarty’s vague complaints about the investigative process have no bearing on the actual result in this case – she drove her registered vehicle without an operable contract of insurance. She is properly guilty of this strict liability offence.

I. Facts

[3] The facts of this case are straightforward. Ms. McCarty was driving her vehicle on the QEW westbound when she lightly collided with another vehicle during an attempted lane change. Ms. McCarty’s vehicle was filled with balloons, likely obscuring her perspective of the other vehicle at the time.

[4] The drivers pulled over and spoke at the highway roadside. The other driver asked Ms McCarty for her insurance. He testified that she would not provide him any insurance documentation, but that they could “figure it out”. A nearby police officer intervened and directed the motorists off the highway and into a nearby parking area.

[5] Upon hearing from the other driver of Ms. McCarty’s roadside refusal to provide insurance information, the officer testified that he believed he was entering an investigation regarding Ms. McCarty driving without insurance. As a result, he advised her that “she is not obliged to say anything but anything she says may be used in evidence” (June 8 2023 Transcript, page 64). Ms. McCarty declined to provide a statement and was subsequently charged with an unsafe turn and driving without insurance.

II. The trial

[6] Ms. McCarty brought a Charter application at trial, alleging breaches of a number of Charter rights, including her right to free expression. She complains that the officer’s conduct inhibited her ability to tell her side during the investigative process. The trial justice reviewed the material and determined that it was most appropriate to blend the Charter application with the trial proper.

[7] The Crown’s case at trial consisted of the other driver and the officer. Ms. McCarty testified on her own behalf. The focus of her testimony, and her cross-examination of the officer, was on the perceived unfairness of the police officer during his investigation. She testified that she was deprived of the right to provide a statement during the investigation, and the officer’s decision to subsequently charge her violated her Charter rights.

[8] Ms. McCarty’s evidence regarding whether she was told a “caution” – as the police officer explained the term – is hard to follow. The Justice of the Peace was correct to conclude that she was internally inconsistent on what she was told by the officer.

[9] The Justice of the Peace ultimately concluded that Ms. McCarty’s Charter rights were not violated, describing her arguments as “misinterpretations of the law surrounding the nature of a police caution and its nexus to her alleged Charter breaches”. Having reviewed the trial transcripts, I agree with this statement. The Charter issues raised at trial, and re-litigated on appeal, are difficult to follow but, on any interpretation, have no chance of success. Ms. McCarty was given a full opportunity to present her testimony during the trial process.

[10] The Justice of the Peace applied the WD test to the conflicting testimony and acquitted Ms. McCarty of the unsafe lane change charge. However, with regard to the no insurance charge, the following facts were not in issue:

(1) She was driving a vehicle. (2) She was the owner of the vehicle. (3) The vehicle was not insured.

[11] Ms. McCarty’s testimony was that, while she was still in possession of the vehicle, she had earlier sold it to a car dealership and therefore believed that the dealership was the owner and the entity responsible for providing insurance. The Justice of the Peace did not accept Ms. McCarty was duly diligent and therefore she was guilty of the offence. Even if her evidence were true – and His Worship described her testimony in this regard as “void of any evidentiary basis” – it was not the act of a reasonable person in similar circumstances.

[12] Ms. McCarty was found guilty of the offence and fined $5000. While this was the second time she had been found guilty of driving a motor vehicle without insurance, the Justice of the Peace declined to impose the statutory mandatory minimum penalty of $10,000, imposing instead the still-substantial $5000 amount.

III. The appeal

[13] Ms. McCarty raises a number of complaints regarding the investigation and her trial. She alleges the trial justice erred in his receipt and assessment of the evidence. Having reviewed the transcripts, I am not convinced any error occurred. The Justice of the Peace, while at time providing lengthy statements to the appellant, sought to explain the trial process to her in an accessible manner free from ‘legalese’. I am satisfied, and have no evidence to the contrary, that the appellant understood his instructions and his explanation of the trial and motion process.

[14] A particular complaint is made regarding his decision to blend the trial and Charter application. I am satisfied this was a reasonable approach for the following reasons:

(1) A judicial officer presiding over a trial retains the jurisdiction to determine whether a proceeding should be blended: see R v. La, 2018 ONCA 830. (2) In this case, that jurisdiction was exercised reasonably. The reality is the appellant’s Charter complaints were not well-defined and very fact specific. It was reasonable for the trial justice to conclude that they would best be considered in the context of the trial proceeding as a whole. (3) Finally, while not determinative, it is a relevant consideration that this was undoubtedly a more efficient approach. The POA courts in Ontario are very busy and judicial officers are entitled to consider how the court’s limited resources can best be spent on individual cases. A fair and efficient proceeding is the goal and is what occurred in the appellant’s case.

[15] I am further satisfied that the Justice of the Peace applied the appropriate legal standard to the ‘no insurance’ offence. This is a strict liability offence: see R v Belleau, 2019 ONCJ 823. On the strength of the Crown’s evidence, a prima facie case had been established. The Crown had presented evidence that the appellant was operating a motor vehicle, was the registered owner of the vehicle, and did not present any proof of insurance for inspection. I adopt the following passage from paragraph six of the Belleau decision as an accurate statement of the law:

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.

[16] After her Charter application had been dismissed, the only option available to the appellant was to testify and convince the Justice of the Peace that she had been duly diligent in her approach to the vehicle’s insurance. She was not legally compelled to testify, but practically it was the only option available to her to attempt to avoid conviction. Having testified as she did, it was open to the Justice of the Peace to conclude that her conduct was unreasonable and convict her of the offence. He approached her testimony conscious of the appropriate legal standard and acted reasonably in his assessment. I have not been convinced any legal error occurred.

IV. Disposition

[17] The appellant drove her vehicle without insurance on a public highway in Ontario. She is fortunate, as is the other driver, that a more serious collision did not occur. She was found guilty of this offence after a fairly conducted trial. She is also fortunate that a more significant penalty was not imposed, as this was her second offence of this nature. Having considered her submissions and the trial transcripts, I conclude that there is no basis to overturn her conviction.

[18] Appeal dismissed.

Released: June 11, 2024 Justice Scott Latimer