R. v. Ikponmwosa, 2011 ONCJ 149

Citation: R. v. Ikponmwosa , 2011 ONCJ 149 Ontario Court of Justice Provincial Offences Court ( Toronto West Region) Regina v. Osazee Ikponmwosa Before His Worship P. Kowarsky Justice of the Peace Charges: 1) Permit Motor Vehicle to be operated without insurance contrary to section 2(1) (

b) of the Compulsory Automobile Insurance Act; and 2) Fail to sign Ownership in Ink contrary to section 8(1) of Ontario Regulation 628/90 under the Highway Traffic Act REASONS FOR JUDGMENT For the Prosecution: Mr. R. Defaria For the Defendant: Mr. A. El-Hakim/Mr. G. Faulkner Trial: August 11, 2010 Judgment: March 21, 2011 R. v. Osazee Ikponmwosa A. THE CHARGES 1. The defendant is charged with - i) “Permit Motor Vehicle to be operated Without Insurance” contrary to section 2(1) (

b) of the Compulsory Automobile Insurance Act, which provides as follows: Subject to the regulations, no owner or lessee of a motor vehicle shall cause or permit the motor vehicle to be operated on a highway unless the motor vehicle is insured under a contract of automobile insurance; and ii) “Fail to sign Ownership in ink” contrary to section 8(1) of Ontario Regulation 628/90 made under the Highway Traffic Act, which provides as follows- It is a condition applying to every permit, other than a CAVR cab card, IRP cab card or special permit, that it bear the signature of the holder thereof, written in ink. B.

THE EVIDENCE FOR THE PROSECUTION 2. The evidence of Toronto Police Officer Richard Di Nino may be summarised as follows:

a) On November 6 th 2009 at about 2:30 pm he was on general patrol in the city of Toronto when he decided to perform a market check on a black BMW motor vehicle which was travelling westbound on Stong Court towards Jane Street. He stopped the vehicle, and noticed that there were 2 occupants: the driver and 1 passenger. The driver provided the officer with a valid Ontario Driver’s Licence with a digitised photograph bearing the likeness of the driver whose name was Ernest Enoghase. “However, he was not the registered owner of the vehicle.”

b) The driver provided him with only the vehicle portion of the registration for the vehicle. The registration was not signed at all.

c) “The driver did provide me with an insurance card for the vehicle. However, on further investigation...I made the determination that the insurance card appeared to be fraudulent. Further investigation led me to lay charges against the driver, Mr. Enoghase, and then subsequently seek out the registered owner of the vehicle.”

d) On November 10 th 2009 he located the defendant at his home. The defendant identified himself “with an Ontario photo driver’s licence as the registered owner of the vehicle, and I proceeded to lay the charges before the Court”.

e) He subpoenaed both the driver of the vehicle at the time of these offences as well as a representative of the Insurance Company as reflected on the insurance card which had been provided to the officer by the driver at the time of the incident.

f) The officer provided to the Court both the licence plate number: BFVS 336 and the V.I.N. number: WBADT63401CF08785 for the vehicle. The V.I.N. number on the Registration matched the V.I.N. number on the vehicle.

g) He asked the passenger in the vehicle to identify himself, but he did not comply. “From looking at him [the defendant], it does not appear to be the defendant in the court at this time.”

h) He attended the address of the defendant, and had a conversation with him but does not remember asking him whether he had given permission for the driver to drive his vehicle on the day in question. 3) The Prosecutor tendered the following documents which were entered into evidence: Exhibit #1 A document under the seal of the Ministry of Transportation and the signature of the Registrar of Motor Vehicles, confirming that on the offence date, namely November 6 th 2009, the registered owner of the motor vehicle concerned was the defendant, Osazee Packerso Ikponmwosa.

Exhibit #2 A document under the seal of the Ministry of Transportation and the signature of the Registrar of Motor Vehicles, providing the V.I.N. history of the vehicle referred to in Exhibit #1. According to this document, the defendant was the registered owner of the vehicle from June 5 th 2009 until November 13 th 2009 when the vehicle was registered in the name of Ernest Parker Enoghase, who was the driver of the vehicle on the date of the offence, namely November 6 th 2009.

Exhibit #3 A document under the seal of the Ministry of Transportation and the signature of the Registrar of Motor Vehicles, providing information that the registered owner of the motor vehicle concerned was the defendant, and that on November 7 th 2009, the defendant sold the vehicle to Ernest P. Enoghase, the person who was driving that vehicle on the date of the offence. The document also indicates that the transfer of the vehicle was conducted with the Ministry of Transportation on or about November 13 th 2009.

Exhibit #4 A. “Notice Given Pursuant To The Canada Evidence Act” by the Prosecution to the defendant. The attached Affidavit of Service indicates that the Notice was sent to the defendant by mail on December 4 th 2009, and informs the defendant that the Prosecution intends to adduce into evidence at the trial certain copies of and/or original books, records and documents, including the Insurance card which was provided to the Officer by the driver of the vehicle at the time of the alleged offence.

Exhibit #5 The Insurance Card which was surrendered to the Officer by the driver of the vehicle, Ernest Enoghase at the time of the alleged offence. The Officer provided the following information when reading from the Insurance Card: “The insurer is listed as Security National Insurance Company of Toronto, with a broker of Meloche Monnex Financial Services. The insured is the name of the registered owner, Osazee Ikponmwosa, with a policy number of 88983612. The date of start – effective date of June 5 th 2009 to June 5 th 2010”. 4. The evidence of Mr.

Jesse Bajwa, who testified on behalf of the Insurance Company, may be summarised as follows:

a) He is an underwriting specialist, employed by T.D. Insurance, Meloche Monnex, Security National Insurance Company. As such, he has “access to files across the company’s record books in Ontario, re underwriting files and assessing risk.”

b) Officer Di Nino had provided him with the first and last names of the defendant together with a policy number of 88983612, and “access to the liability card that was shown”.

b) He conducted a policy search using the defendant’s first name, and last name, and then he reversed the order and searched using the last name first. He found no results.

c) Looking at Exhibit #5, the insurance card provided by the driver of the vehicle at the time of the incident, Mr.Bajwa told the court that –

i) his company’s policies do not start with the number 8; ii) the address for the company’s office is incorrect; iii) the size of the paper used for the insurance card is not the same size as the company uses.

d) Accordingly, he said, the insurance card at which he was looking was not valid, and “we have no record of insurance for the individual or the vehicle.” 5. At the close of the Prosecution’s case, the defendant’s legal representative made a Motion of Non-suit. His argument was that the Prosecution had not provided any evidence that the defendant actually gave permission to the driver to drive his vehicle on the day concerned.

In denying the Motion, I made the following remarks: “The Court needs to look at whether or not at this stage of the proceedings after the close of the Prosecution’s case….there is a prima facie case…While I agree with you that there is no direct evidence, in the sense that the officer did not ask the question of the defendant, he did not ask the defendant whether he gave permission or he did not give permission. However, there is circumstantial evidence of the circumstances that arose, [and from] the documentation that has been provided.

Whether that will be credible evidence that will, in fact, be sufficient to enable the court to convict the defendant is a separate issue. I am satisfied that, at this point, there is sufficient evidence to indicate that there is a prima facie case against the defendant, and the Motion of Non-suit is denied.” C. THE EVIDENCE FOR THE DEFENCE 6. The evidence of the defendant may be summarised as follows:

a) He advertised on an Internet Site called Kijiji that he was selling his [this] motor vehicle. On the day before the incident, he called Mr. Ernest Enoghase and arranged to have him come and detail his car because a prospective buyer was coming to see the car on the following day. He was going to be at work so he left the car in the basement of his apartment building, told Mr. Enoghase that he had done so, and that he had left the keys for the car under a garbage container in the basement.

b) The following day, November 6 th 2009, Mr. Enoghase called him at work. “So, he called me at about three o’clock, or thereabout, you know, that it was a problem, that he drove the car, which I did not tell him to do, because the car was having some mechanical problem, that’s why I was going to get rid of it….I’m like, what happened? He said he drove the car and the police caught him. I’m like, you drove the car? Why? He was like, yeah, it’s a long story.”

c) When he returned home from work Mr. Enoghase “told me exactly what happened.”

d) Mr. Enoghase had not told him that he intended to drive the car. He did not want Mr. Enoghase to drive the car because the car had mechanical problems, and he himself had not been driving the car for that reason.

e) After being served with summonses, he consulted his Legal Representative, who advised him “to go to the place where I got insurance, you know, to see if the guy [was] still there.”

f) He did go to “the office where the guy gave me an insurance. So I went there; it was a different set of people who works there now. They told me there’s nobody like that. And, I’m like, Okay. So I tried going there, like two or three times….so I could not meet the guy there…he was no longer there”. I asked him which guy he was referring to, and his reply was: “The guy that gave me insurance….he works for the insurance company.

I call him Dwayne.” He testified that the office was at the intersection of Keele Street and Wilson Avenue in Toronto, and that at the time, the name on the entrance to the office was Vatos, which is the name that he used on his card, which he doesn’t have anymore because it was lost hen he moved from the 7 th floor to another floor in the same building.

g) He had originally met Dwayne at the same office where he obtained the insurance. Mr. El-Hakim enquired whether there had been an exchange of money at the time, to which the defendant responded: “Yes, I paid for – of course. He gave me – he told me he can’t – it’s – it’s – it was a – how do you say it? He works for the insurance. So, he gave me best deal on insurance.”

h) He testified that “I paid a couple hundred. I’m not sure exactly how much I paid.” In response to the Court’s clarification question with respect to the amount of two hundred dollars, he testified: “Yes, I paid about – it was about six – wasn’t sure. I paid about $800; thereabouts” for a year. He testified that he had paid for the insurance in cash, received a receipt but he did not have it to show the court. “Because I moved from the 7 th floor [to another floor in the same building], so most of my properties I could not leave – you know, find most of my things anymore.”

i) He and the prospective buyer of the car could not agree on a price. Mr. Enoghase “called me and told me he liked the car” and wanted to buy it. “So he eventually bought the car the next week.”

j) When it was put to him that he sold the car to his friend, Mr. Enoghase, knowing that he himself did not drive the car because of its mechanical problems, he hesitated, as he responded: “Yes. His – he’s – he’s – he’s – I know him. He’s not my friend. I don’t know how you call friend, but I know him.”

k) When the defendant was asked what the purchase price was which Mr. Enoghase had paid, he told the court that he had bought the car “for about $5,000.00. He was not sure when he had sold the car to Mr. Enoghase in relation to the incident on the 6 th November 2009, although “I think it was after the police came.”

l) Under cross-examination, when asked how long he had the vehicle for, he replied: “I had it before I sold it for a couple of months, say about four –three, four, five months, thereabouts….May – June [2009], thereabout.” He could not say in which of the months of May,

June, July, August, September, October or November 2009 he bought the insurance.

m) When asked how much he had paid for the car when he purchased it in May or June 2009, he replied: “I – I – I have a receipt, but Ipaid just around that same range for the car. You know?.....Around same 5,000, thereabout five, 6,000. He bought the car from a dealer,but did not have the receipt with him.

n) The prosecutor showed the insurance card, Exhibit #5, to the defendant, noted that it indicated that the insurance was effective from June 5th 2009 until June 5th 2010, and then asked the defendant: “So would you agree or disagree that you obtained that card some time prior to June 5th 2009?” The defendant replied that he did not recall.

o) He testified that he only knew that the first name of the person who had sold him the insurance was Vatos, but he did not know his lastname nor did he ever ask for any form of identification from him. Other than the insurance card, Vatos had not provided him with apolicy or any other documents in relation to the insurance coverage.

p) He told the court that for a period of two or three weeks prior to the incident, he had not driven the car because he was having troublewith the transmission. He did take the car to a mechanic but since it was going to be too expensive to repair, he decided to sell it, andeventually he sold it to Ernest Enoghase. He confirmed that it was his signature as seller on the certified copy of the registration document dated November 7th 2009, which is Exhibit #3, and that Mr. Enoghase had completed the purchaser’s portion. D. CATEGORIZATION OF THE OFFENCES 7. In R. v. Sault Ste.

Marie (City), (SCC), [1978] 2 S.C.R. 1299, Dickson J. speaking for the Supreme Court of Canada,held that compelling grounds existed for the recognition of the following three categories of offences: 1.) "Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be proved bythe prosecution either as an inference from the nature of the act committed, or by additional evidence; 2.) Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. 3.) Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault." 8. In Sault Ste.

Marie (supra) Dickson J. explained that criminal offences generally fall under the first category, whereas public welfareoffences would, prima facie, be in the second category, namely strict liability offences. He said: "Offences of this type [public welfare]would fall in the first category only if such words as "wilfully," "with intent," knowingly" or "intentionally" are contained in the statutoryprovision creating the offence." 9. In R. v.

James 2006 CarswellOnt 2592 the Ontario Court of Justice, sitting as a court of appeal, stated the following at paragraphs 4and 5: “While there is substantial case law to suggest that an offence of operating a motor vehicle and being the owner while the motor vehicleis not insured is an offence of strict liability, I do not believe that when the offence is particularized as it is under section 2(1) (

b) of theCompulsory Automobile Insurance Act, that it is one of strict liability and that the only defence open to the appellant is one of duediligence.” “I think the Crown has to prove beyond a reasonable doubt that the appellant unlawfully permitted the motor vehicle to be operated.” 10. Although the court did not say so in so many words, it seems to me that the above-quoted statements indicate that the court treatedthe offence of permitting someone to drive a motor vehicle without insurance as a mens rea offence. 11.

The Ontario Court of Justice, sitting as a court of appeal, came to a different conclusion in R. v. Bedard, [2009] O.J. No. 4720, andtreated this offence as a strict liability offence. The court held as follows at paragraph 9: “In my view, the only issue is whether said

section is a strict liability offence. Do the words "permit the operation of a motor vehicle on ahighway..." create a positive state of mind such as intent, knowledge, or recklessness as spoken of in R. v. Sault Ste. Marie? In my viewthey do not. Had the legislature chosen to use the words "knowingly" or wilfully" it could have easily done so. "Permit" is a broader termand does not embrace intent or recklessness. One may permit without being wilful or reckless, for example, simply by failing to takereasonable care.

The use of uninsured motor vehicles on the highway is clearly public welfare issue because of the financial and physicaldamage that can be inflicted on innocent and law-abiding users of the road.” 12. The learned judge then referred to the word “permit” and noted that the Supreme Court of Canada had actually considered themeaning of “permit” in Sault Ste. Marie (supra), in which the defendant corporation was charged under section 32(1) of the OntarioWater Resources Act which makes it an offence to cause or permit deleterious materials to be discharged. He cited the followingcomments by Dickson J.:

"The present case concerns the

interpretation of two troublesome words frequently found in public welfare statutes: "cause" and"permit". These two words are troublesome because neither denotes clearly either full mens rea or absolute liability. It is said that aperson could not be said to be permitting something unless he knew what he was permitting. This is an over-simplification. There isauthority both ways, indicating that the Courts are uneasy with the traditional dichotomy.” Dickson J. then cited numerous authorities in favour of each

interpretation of the words “cause” and “permit” and concluded as follows: “The conflict in the above authorities, however, shows that in themselves the words "cause" and "permit" fit much better into an offenceof strict liability than either full mens rea or absolute liability.

Since s. 32(1) creates a public welfare offence, without a clear indicationthat liability is absolute, and without any words such as "knowingly" or "wilfully" expressly to import mens rea, application of thecriteria which I have outlined above undoubtedly places the offence in the category of strict liability. “Proof of the prohibited act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care.I am strengthened in this view by the recent case of R. v. Servico Ltd. (1977), 1977 ALTASCAD 93 , 2 Alta.

L.R. (2d) 388, inwhich the Appellate Division of the Alberta Supreme Court held that an offence of "permitting" a person under 18 years to work duringprohibited hours was an offence of strict liability in the sense which I have described.” 13. I choose to follow the court’s decision in Bedard (supra) as opposed to James (supra) in that in Bedard the court appropriately reliedon the comments and conclusion reached by Dickson J. in Sault Ste.

Marie. in coming to its decision to treat the offence of an ownerpermitting someone to drive his motor vehicle on a highway while the vehicle was not insured as a strict liability offence. 14.

The consequence of my decision to treat the offence as a strict liability offence, is that the onus is on the Prosecution to prove theactus reus of the offence beyond a reasonable doubt, while it is open to the defendant to exculpate himself by satisfying the court, on abalance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that heexercised all reasonable care so as to avoid committing the offence. See: R. v. Sault Ste. Marie (supra); R. v. Pontes, (SCC), [1995] 3 S.C.R. 44. E. ANALYSIS AND FINDINGS 15.

In considering the offence category of failing to sign the permit in ink, I take into account the following dictum by Dickson J. in SaultSte. Marie (supra): “Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merelyof the proscribed act.

The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance ofthe penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the thirdcategory.” I am of the view that the offence of failing to sign the ownership permit registration certificate in ink is an absolute liability offence. Theoffence is committed if the permit handed to the officer by the driver at the time of the incident was not signed in ink as required underthe legislation.

According to the evidence of the officer, the driver provided him with only the vehicle portion of the permit for thevehicle. The permit had not been signed at all. There is no evidence whatsoever to contradict this evidence. Consequently, I am satisfiedthat the Prosecution has proven this charge beyond a reasonable doubt, and there will be a finding of guilty. 16. In order to prove the actus reus of the offence under section 2(1) (

b) of the Compulsory Automobile Insurance Act the prosecutionmust prove that: 1) The defendant was the owner or lessee of the motor vehicle at the time that the officer stopped the driver; 2) The motor vehicle was not covered under a valid contract of automobile insurance at the time; and 3) The defendant permitted the driver to drive his vehicle on the highway while the vehicle was not so covered by insurance. 17. Officer Di Nino testified that when he stopped the motor vehicle on November 6th 2009, the driver provided him with the vehicleportion of the permit for the vehicle.

The permit indicated that the defendant was the registered owner. This is corroborated by Exhibit#1 which confirms that on the offence date, the defendant was the registered owner of the vehicle. Accordingly, I am satisfied that theProsecution has proven this aspect of the actus reus beyond a reasonable doubt. 18. In relation to insurance, the officer testified that the driver had provided him with an insurance card at the time of the incident, butthat he was concerned about its validity, and therefore he contacted the specified Insurance Company in order to make enquiries. 19. Mr.

Jesse Bajwa testified that he is an underwriting specialist employed by T.D. Insurance, Meloche Monnex, Security NationalInsurance Company. He told the court that upon examination of the insurance card concerned, he found it to be false for the reasonswhich he provided in his testimony. Furthermore, he testified that he had checked the records of the Insurance Company, and found norecord of insurance coverage in the defendant’s name. 20.

Consequently, I am satisfied beyond a reasonable doubt that the insurance card provided to the officer by the driver of the vehicle atthe time of the traffic stop was false, and that the defendant’s motor vehicle was not insured under a contract of automobile insurance asrequired by the legislation. 21. The final aspect of the actus reus is whether the defendant permitted his motor vehicle to be driven without the necessary validinsurance coverage. The defendant’s testimony is that he did not give permission to the driver, Mr.

Enoghase, to drive his motor vehicle.He did not want him to drive the car because it had mechanical problems relating to the transmission, and a mechanic had told him that it

would be too expensive to repair. Notwithstanding the defendant’s denial, an examination of the evidence before the court is necessary inorder to establish whether or not he actually gave Mr. Enoghase permission to drive the car. 22. In R. v. Burko (January 21), 2011 ONSC 479, [2011] O.J. No. 252 the Ontario Superior Court held that in considering the issue ofcredibility in relation to the Crown’s onus of proving the actus reus, the court must resort to the test established by the Supreme Court ofCanada in R. v.

W.D., (SCC), [1991] 1 S.C.R. 742 in which Cory J. held as follows: “If the triar of fact believes the defendant, he must acquit. If he does not believe the defendant, but is still left with a reasonable doubt by the defendant's testimony, he must acquit. If after considering the defendant's evidence in the context of the evidence as a whole, the justice is left with a reasonable doubt as to thedefendant's guilt, the justice must acquit, even if he does not believe the defendant's evidence.” 23.

The defendant testified that he had advertised his vehicle for sale on an Internet site called Kijiji., and that a prospective purchaser was coming to see the vehicle on November 6th 2009. On the previous day, he called Mr. Enoghase and arranged for him to detail his car on November 6th 2009; he informed Mr. Enoghase that the vehicle was parked in the basement of his apartment building, and that hewould leave the keys under the garbage because he was going to be at work when the prospective buyer was scheduled to come. He was still at work when Mr.

Enoghase telephoned him on the afternoon of November 6th 2009, and told him that he had driven the car, “andthe police caught him.” The word “caught” seems to imply that he and the defendant knew that he was driving illegally at the time. 24. Let me endeavour to assess the defendant’s credibility in the context of the circumstances surrounding his alleged commission ofthe offence. I do not believe the defendant’s evidence. Overall, it did not have the ring of truth. His explanations were implausible,incredulous, convoluted and haphazard. His testimony was improbable, evasive, hedging and duplicitous.

He was meandering,circuitous, and totally unconvincing. In essence, his testimony defies common sense. In support of my conclusions, I highlight thefollowing: 25. Mr.Ikponmwosa only knew the first name of the “guy” who “gave” him the insurance. Initially, he said that this person’s name was“Dwayne” and later he testified that it was “Vatos”.

He received no insurance policy or other documents, but he was content because the“insurance salesman” told him that “he works for the insurance, he gave [would give] me [the] best deal on insurance.” He could notremember how much he had paid for the insurance, stating that: “I paid a couple hundred. I’m not sure exactly how much I paid…..itwas about six - wasn’t sure. I paid about $800 thereabouts for a year.” He paid in cash but lost the receipt. It is common knowledge, Ibelieve, that the cost of motor vehicle insurance in Ontario is significantly higher than $800 per annum. 26.

The “insurance salesman” gave him his business card but he lost it. After being served with the summons he went back to thebuilding where he had bought the insurance some six months prior thereto, but the person was no longer there, and nobody in thebuilding had ever heard of this person Vatos. 27. Mr. Ikponmwosa testified that he did not give Mr. Enoghase permission to drive his car because it had mechanical problems. Hetestified that he had not driven the vehicle for about three weeks prior to the incident.

I cannot believe that a prospective buyer was goingto see the car and consider buying it for about $5000 without driving it. Moreover, if the vehicle did in fact have mechanical problemssuch that it could or should not have been driven, why is it that he sold that vehicle to Mr. Enoghase on the day after the incident? Afterall, he was acquainted with Mr. Enoghase, although he was evasive about whether Mr. Enoghase was his friend, and he had told Mr.Enoghase not to drive the car because of the mechanical problems. Why would Mr. Enoghase buy the vehicle “for about $5000” undersuch circumstances? 28.

I am not sure why the defendant sold the car to Mr. Enoghase on the day after the incident, but it has no bearing on my finding offact that the defendant was the owner on the offence date. 29. In my view, the defendant did in fact give Mr. Enoghase permission to drive his car, while knowing that the insurance coverage wasfalse, and I completely reject the defendant’s evidence that he did not do so. 30. For the reasons which I have given, I do not believe the defendant nor am left with a reasonable doubt by his evidence.

Moreover,after considering the evidence of the defendant in the context of the evidence as a whole, I am not left with a reasonable doubt that thedefendant committed the prohibited act. F. THE DUE DILIGENCE OF THE DEFENDANT 31. In Sault Ste. Marie (supra) Dickson J. explained strict liability offences and the defence of due diligence as follows: “Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances.” 32. In Levis (City) v. Tetreault, 2006 SCC 12 , [2006] S.C.J. No. 12, the Supreme Court of Canada held as follows at paragraph15:

“Under the approach adopted by the Court, the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.” 33. Would the reasonable person have done what the defendant testified that he did or would the reasonable person have acted differently? In my opinion, the reasonable person would have gone to a reputable insurance broker to obtain the insurance for his car. He would have received and kept the receipt for his cash payment.

He would have ensured that he obtained and retained an Insurance Policy, and kept the business card given to him by the insurance broker in order to contact him in the event of a claim or other issue arising out of the policy. 34. In my view, the reasonable person would have known the name of the prospective buyer of the car, and provided it to Mr. Enoghase in order to ensure that Mr. Enoghase would know with whom he would be dealing. The reasonable person would have ensured that Mr.

Enoghase came to court to testify on the defendant’s behalf in order to corroborate the defendant’s evidence in relation to the detailing arrangements, the mechanical problems with the vehicle, and that he had not permitted Mr. Enoghase to drive the vehicle. Officer Di Nino testified that Mr. Enoghase did not respond to the subpoena calling upon him to testify at the trial. 35. Furthermore, the reasonable person, in my view, would not have sold the vehicle to Mr.

Enoghase, who was at the very least an acquaintance of the defendant, both knowing that it was unsafe to drive the car because of its mechanical problems. Why would Mr. Enoghase buy the car for about the same price which the defendant testified he had paid for it some 6 months prior thereto, particularly if it was in poor repair and should not have been driven, and that to repair it would have been too expensive? Notwithstanding the evidence contained in Exhibit #2, I have doubts as to whether any money actually passed between Mr. Enoghase and the defendant in relation to the sudden transfer of the vehicle to Mr.

Enoghase on November 13 th 2009. 36. Finally, how could a reasonable person expect a prospective buyer even to consider buying the car without having the opportunity of driving it first? The testimony of the defendant is that because of the mechanical problems he had not driven the car for about three weeks prior to the incident and that he had told Mr. Enoghase not to drive it for the same reason. Would the reasonable person expect the prospective buyer to consider buying it without driving it? In my view, to believe this would strain common sense. G. CONCLUSION 37.

I conclude that the defendant has not satisfied me on a balance of probabilities either that he exercised all reasonable care so as to avoid committing the offence or that he had an honest but mistaken belief in facts which, if true, would have rendered the act innocent. 38. I am satisfied that the Prosecution has proven the actus reus of the offence beyond a reasonable doubt, and that the defendant has not made out the defence of due diligence on a balance of probabilities. Accordingly, I find the defendant guilty. P. Kowarsky Justice of the Peace Ontario Court of Justice Toronto West