CITATION: Toronto (City) v. Ahsan, 2024 ONCJ 529
DATE: October 22, 2024
Court No. 4863 999 00 7403471Z / 72Z / 73Z
ONTARIO COURT OF JUSTICE
BETWEEN:
THE MUNICIPALITY OF TORONTO Prosecutor
— and —
MIR AHSAN Defendant
Before Justice of the Peace I. Szenes
Trial heard October 16, 2024
Reasons for Judgment released October 22, 2024
Blaha, J ........................................................................................................... for the Prosecution
Manoukian, V ........................................................................................... Counsel for Defendant
JUSTICE OF THE PEACE I. SZENES
On December 18, 2020, the defendant was charged with the offences of Fail to Display Two Plates contrary to s.7 of the Highway Traffic Act, Plate Not Plainly Visible contrary to s.13 of the Highway Traffic Act and Fail to Surrender Insurance Card contrary to s.3(1) of the Compulsory Automobile Insurance Act and was issued a Part I Offence Notice for each. He entered a plea of not guilty to each charge.
The trial was conducted before me on October 16, 2024. I reserved judgment to October 22, 2024. These are my reasons.
The court heard from two witnesses, namely the investigating officer and the defendant. The defendant was represented by Mr. Manoukian, who is a licenced paralegal.
THE ISSUES
- The following issues were before me:
Issue 1: Was the number plate obstructed by the grey plate cover that the defendant put on top of the plate?
Issue 2: Did the defendant’s defence regarding the missing front plate on the vehicle amount to a successful due diligence defence?
Issue 3: Does providing an expired insurance card to the officer satisfy the requirements under s.3(1) of the Compulsory Automobile Insurance Act?
Issue 4: Does the discrepancy between the defendant’s sworn evidence in his affidavit in support of an appeal and his sworn viva voce testimony affect the reliability of his evidence overall?
FACTS NOT IN DISPUTE
On the date and place in question, the defendant was driving a motor vehicle traveling northbound on Markham Road, in the City of Toronto. He was the sole occupant of the vehicle.
Officer Papadopoulos Officer was on duty and on foot at that location facing southbound on Markham Rd to observe motor vehicles traveling northbound towards his location.
At that time, he observed a 4-door Nissan motor vehicle traveling northbound approaching his location. There was no front plate attached to the vehicle and that is what drew his attention to that vehicle.
He commenced a vehicle stop and conducted an inspection of the vehicle.
In addition to the vehicle missing the front number plate, there was a back plate displayed but it was covered by an after-market plate cover.
The officer had a conversation with the driver of the vehicle and made a demand for his driver’s licence and insurance.
The driver provided a valid Ontario Driver’s Licence with photo identification in the name of Mir Ahsan and the officer was satisfied with the identification provided.
Mr. Ahsan also provided an insurance card, however, the card was expired and the officer testified that it was not valid.
ANALYSIS
- The prosecution has the duty to prove each charge against the defendant beyond a reasonable doubt. If they fail to discharge their onus, the defendant is entitled to an acquittal.
Issue 1: Was the number plate obstructed by the grey plate cover that the defendant put on top of the plate?
The prosecutor argued that since the plate was covered, it was obstructed and not clearly visible as required under the Highway Traffic Act.
The defence argued that the officer was able to read the numbers on the plate and therefore the prosecution has not proven all the elements of the offence.
In the decision of R v Cabeldu, [2016] OJ No 6850, His Worship Zeigler found that the plate covers did not interfere with the intended purpose of the legislation, and while I am not bound by that decision, it is persuasive.
Given the evidence before me, I do not find that the plate covers were obstructed or were not plainly visible to the officer, the elements of the offence have been made out by the prosecution and I find the defendant not guilty of the offence of Plate Not Plainly Visible contrary to s.13 of the Highway Traffic Act.
Issue 2: Did the defendant’s defence regarding the missing front plate on the vehicle amount to a successful due diligence defence?
The fact that the front plate was not displayed on the vehicle as required is not in dispute. Nor is it disputed that the legislation requires that there be two plates attached to the vehicle, one in the back and one in the front.
Mr. Manoukian argued that because the front plate had fallen from the defendant’s vehicle a couple of days before was being kept in the trunk of the motor vehicle until such time as the defendant would be able to have it re-affixed. He argued that during that time, it was very difficult to procure many things due to the pandemic and further, that the actions of the defendant were sufficient to make out a defence of due diligence.
To make out the defence of due diligence, the defendant must show he took all reasonable steps to avoid committing the offence charged. Mr. Ahsan testified that he contacted one vendor, Canadian Tire to procure the part required. There was no detail provided regarding what “part” was required to re-affix the licence plate to the vehicle.
The evidence regarding steps taken by the defendant to avoid committing the offence, specifically, calling one vendor and waiting for the part to arrive and operating the vehicle without the plate in the meantime does not give rise to a successful due diligence defence. There is a requirement that the defendant show that the actions taken relate to avoiding the offence charged rather than some broader notion that he was acting reasonably under the circumstances.
I do not find that reasonable steps were taken as required and the defence of due diligence has not been made out.
I find the defendant guilty of the offence of Fail to Display Two Plates contrary to s.7 of the Highway Traffic Act.
Issue 3 - Does providing an expired insurance card to the officer satisfy the requirements under s.3(1) of the Compulsory Automobile Insurance Act?
Both parties agreed that an expired insurance card was provided to the officer in paper format.
Mr. Ahsan testified that when the officer advised him that the insurance card provided was not valid, that he called his father who takes care of all the insurance.
The defendant further testified that his father sent him an electronic copy of the valid insurance card and that when the officer came back to his car to issue the three offence notices to him, he asked the officer to look at the proof of insurance. By that time, the charges had already been laid.
The officer testified that he was never provided any valid proof of insurance.
Mr. Manoukian argued that section s.3(1) of the CAIA is ambiguous as it does not clearly state that the requirement is to provide a valid insurance card.
Section 3(1) of the Compulsory Automobile Insurance Act reads as follows:
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.
As I read it, the words “evidencing that the operator is insured” clearly requires that proof of valid insurance for the date and time in question be provided. Further, when considering the intention of the legislative provision, the reason there is a requirement to show a valid insurance card, as opposed to an expired one, for reasonable inspection, is that the officer is requesting evidence that the operator is currently insured and not evidence that they were insured up until a date prior to the vehicle stop.
Based on a plain reading of this provision, I find that the intention is clear and unambiguous. Therefore, surrendering an expired insurance card is insufficient to comply with s.3(1) of the CAIA.
Proof of valid insurance was not provided to the officer prior to the issuance of the offence notices. Furthermore, the officer testified that he has never seen proof of valid insurance for the date in question.
The prosecution has made out the offence beyond a reasonable doubt and I reject the submissions made by Mr. Manoukian that an expired insurance card is sufficient to meet the requirements under s.3(1) of the CAIA .
Issue 4: Credibility Assessment - Does the discrepancy between the defendant’s sworn evidence on his affidavit in support of an appeal and his sworn testimony affect the reliability of his evidence overall?
The defendant was charged nearly four years ago and there is quite a lengthy history. The defendant was convicted after failing to respond to the charges and then made application to reopen his matters which was denied.
He then appealed, and the matters were sent back from the appeal court for trial.
There have been numerous adjournments and I granted the last adjournment as Mr. Ahsan had just contacted Mr. Manoukian who appeared and indicated that he would not accept a retainer unless the court granted the adjournment. Given the submissions and in consideration of the defendant’s right to a fair trial and that Mr. Manoukian undertook that they would be ready for trial on the following date, I granted the adjournment.
In reviewing the paperwork attached to the file, specifically the sworn affidavit contained in the appeal materials, Mr. Ahsan included a statement that he had the insurance card with him but that he was unable to locate it at the time of the vehicle stop. This was contrary to his viva voce evidence in court during his trial in which he testified that he did not have a valid insurance slip to present to the officer upon demand but that his father sent a valid copy by email.
I raised the issue of the contradictory evidence and with the parties and invited submissions. However, there was no reasonable explanation given.
Although Mr. Ahsan had testified that his father had sent him an electronic copy of the insurance card which he received by email while still stopped at the side of the road, there was no evidence of the email or the insurance card provided to support that assertion.
There was no proof of insurance for that date and time introduced as evidence in the trial.
In assessing Mr. Ahsan’s credibility, I am relying on R. v. W. (D.), 1991 CanLii 93 (SCC), where Cory, J held:
“First, if you believe the evidence of the accused, obviously, you must acquit. Second, if you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
I find that the contradictory evidence does negatively impact the reliability and trustworthiness of the defendant’s evidence regarding this offence and causes me to rely on the third prong of W.(D.), since this discrepancy represents a significant change in his evidence. Regardless of that, both parties evidence is that the defendant did not surrender a valid insurance card upon demand by the officer as required. Given that, I find that the essential elements of the offence have been made out and I am not swayed by the submissions made by Mr. Manoukian regarding the expired card being acceptable as I mentioned earlier.
The officer’s evidence was credible and largely uncontested. While I am not satisfied that all elements of the offence have been made out for the offence of plate not plainly visible, it was not due to any issue of credibility but rather, a lack of detailed evidence to support the charge.
Mr. Ahsan’s testimony for the two remaining offences does not leave me with a reasonable doubt given that the essential elements have been made out and are undisputed.
I am satisfied that based on the evidence that I do accept before me, that the prosecution has proven the charge of Fail to Display Two Plates contrary to The Highway Traffic Act and Fail to Surrender Insurance Card contrary to the Compulsory Automobile Insurance Act beyond a reasonable doubt and I find Mr. Ahsan guilty of those offences. For reasons I indicated earlier, I find the defendant not guilty of the offence of Plate Not Plainly Visible contrary to The Highway Traffic Act.
I will now hear submissions regarding penalty.
Justice of the Peace I. Szenes