R. v. Khan, 2014 ONCJ 68

Citation: R. v. Khan , 2014 ONCJ 68 ONTARIO COURT OF JUSTICE Toronto Region In the Matter of the City of Toronto Municipal Code , Ch. 545,

Article VIII, s.548-28 H, “fail to be civil and well behaved. “ B E T W E E N: Her Majesty The Queen -and- Rafat Khan JUDGMENT Heard Orally: October 11, 2013 Judgment: February 10, 2014 Before: Her Worship Mary A. Ross Hendriks Counsel: Ms. P. Liu, Prosecutor, City of Toronto Mr. D. Butler, Defence counsel, with Mr. Khan INTRODUCTION: [ 1 ] The defendant, Mr. Rafat Khan, through his counsel, Mr. Butler, was arraigned on the charge of “fail to be civil and well-behaved,” as the driver or operator of a taxi cab, on October 15, 2012,at 4:30 p.m., at 2300 Yonge Street, in the City of Toronto, contrary to the Toronto Municipal Code , Ch. 545,

Article VIII, s. 545-148 H. He entered a plea of not guilty to this municipal licensing charge. [ 2 ] At the conclusion of this trial, I offered both parties the opportunity to file any jurisprudence that they wished me to consider, and gave them a deadline of November 26, 2013. To date, no supplementary materials have been filed. ISSUE: [ 3 ] The following issues are relevant to this trial: (

a) Did Mr. Khan make discriminatory and insulting statements to his passenger while driving a taxi cab in the City of Toronto? (

b) If the answer to (

a) is yes, did these statements contravene the relevant municipal licensing requirement, that a taxi driver while driving or operating a cab, shall be “civil and well-behaved”? DECISION: [ 4 ] The defendant made the statements as alleged. In so doing, he contravened this municipal licensing requirement. ANALYSIS: The Nature of the Charge:

[5] The City of Toronto Act, 2006, S.O. 2006, ch. 11, Sched. A (the “Act”),

section 2, establishes a framework of broad powers for theCity, in order to provide “good governance,” and as such, is clearly a public welfare statute. Within its broad authority, the City has theauthority to pass by-laws respecting business licensing, as per subsection 8(2) of the Act. [6]

Chapter 545 of the City of Toronto Municipal Code, as amended, is a compilation of such by-laws, and as such, is subordinatelegislation. It establishes the following licensing requirement: S. 545-148 LICENSING H. Every driver licensed under this

chapter and every owner, while driving or operating a cab, shall be properly dressed, neat and clean inperson, and be civil and well-behaved, and while on any public cab stand shall sit or stand sufficiently close to his or her cab so as tohave it constantly under close observation, and such drivers or owners shall not in any way obstruct the use of the sidewalk, or make anyloud noise or disturbance. Meaning of “fail to be civil and well-behaved”: [7] The phrase, “shall…be civil and well-behaved” is not defined within the Municipal Code.

Thus, its meaning is explored below. [8] According to the Paperback Oxford Canadian Dictionary, second edition, Oxford University Press, Don Mills: 2006, “civil” isdefined as follows: civil adj. 1 of or belonging to citizens. 2 of ordinary citizens and their concerns, as distinct from military or naval or ecclesiasticalmatters. 3 polite, obliging, not rude. 4 Law relating to civil law. 5 of or relating to the state (civil authorities). 6 (of the length of a day,year, etc.) fixed by custom or law, not natural or astronomical. 7 Cdn (Nfld) (of the weather or sea) calm. [9] In this context, I am applying the third definition provided of “civil”, and find that it means to be “polite, obliging, not rude.” [10] Similarly, the Paperback Oxford Canadian Dictionary defines “well-behaved,” as follows: well-behaved adj. having or demonstrating good manners or conduct. [11] In considering these dictionary

definitions, and their appropriateness, I rely upon the Court of Appeal’s decision in Greater EssexCounty District School Board v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of theUnited States and Canada, Local 552, 2012 ONCA 482, at para. 50: Context is everything. As the Supreme Court of Canada observed in Bell ExpressVu Limited v. Rex 2012 SCC 42, [2002] 2 S.C.R. 559,at para. 26, citing Elmer Driedger, Construction of Statutes (Toronto: Buttersworth, 1983) at 87, “Today there is only one principle orapproach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament.” [12] Thus, I find that the phrase, “be civil and well-behaved,” within the Toronto Municipal Code, requires taxi drivers to be polite,obliging, not rude, and to demonstrate good manners or conduct. Classification of the Offence: [13] Based on the wording, I find that this is a strict liability offence.

In other words, for a regulatory or public welfare offence of thisnature, there should be “no conviction without negligence.” See: R. v. Pontes [2005] 3 S.C.R. 44 at 74, para. 59. Also see: R. v. SaultSaint Marie (City), (SCC), [1978] 2 S.C.R. 1299, which established the three classifications of regulatory or publicwelfare offences. [14] Rather than put forth a due diligence defence, the defendant denied making the alleged statements, and called a different customeras a character witness. Potential Charter Issues: [15] Since Mr.

Khan denied making the alleged statements, defence counsel did not argue freedom of expression, as per subsection 2(b)of the Canadian Charter of Rights and Freedoms[1] to challenge the constitutionality of this provision, as contained within the TorontoMunicipal Code, which would have been open to him, as per R. v. Vellone, 2012 ONCA 785, at para. 21. [16] Moreover, since this is a strict liability offence, there is no possibility of imprisonment as a penalty. Thus, I am not consideringwhether the legislation comes into conflict with entrenched constitutional rights, as per the test in R. v.

Oakes, (SCC),[1986] 1 S.C.R. 103. WITNESSES: [17] An exclusion order was made prior to the outset of the testimony of the witnesses to this trial. Prosecution Witnesses: [18] The Prosecutor called the passenger, Lisa Bering, and a City of Toronto Municipal Licensing Standards/Provincial Offence officer,

William Bosley. Lisa Bering: [ 19 ] Ms. Lisa Bering testified that on the afternoon of October 15, 2012, she took a taxi from Yonge and Eglinton Centre to her apartment, within the City of Toronto. This ride took approximately 12 minutes. She identified the defendant before the Court as the driver of this taxi. [ 20 ] She provided contextual evidence that during this ride, “without being asked,” he criticized various groups of people, including: Jamaicans, police officers, a Jewish taxi driver, Canadian women, and the City of Mumbai, India.

During cross-examination, she denied that that had engaged in an exchange of views. Rather, and testified that, “I gave absolutely no opinions.” She said that the “statements were coming from him at a steady clip.” She also added that, “It was almost a speech,” and that his tone was “disparaging.” [ 21 ] In particular, she testified that he asked about her background, and she explained that her father was from Mumbai.

He told her that he was from a different city in India, and said that Mumbai was “dirty.” [ 22 ] When she asked him if he took credit cards for payment, he not only told her that he did not accept credit cards, but proceeded to say that a Jewish taxi driver he knew would not allow you to ride in his taxi if you wanted to pay by credit card. He also added that he did not support the fact that credit card users “are the type of people” who pay their bill one month later.

She found his tone about credit card users to be “rude.” She denied that he said he did not take credit cards in his taxi because he lacked the machine to process payment. She agreed to pay him cash for his fare. [ 23 ] He also advised her that he had to “go home to find a wife,” since “Canadian women only want money.” As a Canadian woman, she felt directly insulted by this comment, and she was surprised that this did not occur to him. [ 24 ] He also told her that the police do not care about anyone. He used the word “loudness,” to describe Jamaicans, and then said “something about partying.” Unbeknownst to Mr.

Khan, Ms. Bering was born in Jamaica and found these comments personally offensive, as well. [ 25 ] After this taxi ride, she called his employer, Diamond Taxi, and spoke to someone about his inappropriate comments. She noted that he drove as a Toronto Taxi Ambassador, and was concerned about his influence over tourists to Toronto. She was directed to make her complaint with the Toronto Taxi Commission.

As a result, she “got in touch with William Bosley.” Officer William Bosley: [ 26 ] Officer William Bosley also testified for the prosecution. [ 27 ] He is employed as a City of Toronto Municipal Licensing and Standards Officer/Provincial Offences Officer, and has been an officer for almost four years. He investigated Ms. Bering’s complaint. [ 28 ] Officer Bosley testified that on October 31, 2012, Ms. Bering’s complaint about this taxi driver came in for his review. He asked her to provide a statement, which she did. [ 29 ] Officer Bosley also brought Mr. Khan in for questioning on December 11, 2012.

He has not had any prior dealings with Mr. Khan in the past. He indicated to Mr. Khan that he knew that he was in operation of the Ambassador #177 on the date in question, and that he had confirmed with the President of Diamond Taxi, Jim Bell, through their dispatch records, that he was driving that taxi cab at Yonge and Eglinton at the appropriate time that day. [ 30 ] He testified that he read Mr. Khan a caution prior to interviewing him, and that Mr. Khan agreed to be interviewed. He provided Mr. Khan with a voluntary statement form, and reviewed it with him. Mr. Khan signed it with regard to its contents.

This interview was not videotaped. Officer Bosley admitted during cross-examination that he did not record everything that he had said to Mr. Khan, but rather, recorded Mr. Khan’s comments. The written statement was not made an exhibit at this trial, however. [ 31 ] Officer Bosley identified a certified copy of the plate (Exhibit 1), and a certified licence status letter (Exhibit 2). Officer Bosley also ran some other checks, and compared his file photograph to him. He was satisfied with Mr. Khan’s identity and licence with the City of Toronto. [ 32 ] Officer Bosley ran Mr.

Khan’s history, based on complaints and summonses (Exhibit 3). He testified that code 117 meant that the driver was cautioned, and that code 124 meant that the complaint had been withdrawn. While Mr. Khan has been previously cautioned for this same offence by an officer, this is the first time Mr. Khan has been brought to court for this offence. [ 33 ] In his interview, Mr. Khan was advised of the complaint received by the City of Toronto from Ms. Bering, by Officer Bosley. Initially, Mr. Khan told Officer Bosley that he did not recall the incident. [ 34 ] Officer Bosley gave him the details of the complaint.

The complaint itself was in the form of an email from Ms. Bering. He read Mr. Khan her email, dated October 29, 2012. They also discussed his complaint and summons history. [ 35 ] In response, Mr. Khan told Officer Bosley that he was “not a racist guy.” Mr. Khan said that it was his view that she made this complaint, because he does not accept credit cards as payment. Defence Witnesses: [ 36 ] The defence called Mr. Khan to testify on his own behalf, and a regular client of his, Ms. Linda Hayes. Rafat Khan:

[37] Mr. Khan testified that he has been a taxi driver for 35 years. He said that he has never been to court before in relation to acomplaint, and that he behaves in a “professional “manner. [38] In chief, Mr. Khan recalled picking up Ms. Bering on the date, time and location in question. However, during cross-examination,he contradicted himself and said that he did not recognize her. [39] Mr. Khan denied that he had made comments about Jews, Jamaicans or police officers. He did not specifically address the allegedcomment about Canadian women as mercenary.

However, he did state during his testimony that these were “all false allegations.” Headded that his passengers are of all races. [40] In his original statement to Officer Bosley, Mr. Khan said that he did not want to take Ms. Bering’s credit card to pay her fare,because he did not have the machine to process the charge. However, he admitted in his testimony that he said to her that people usecredit cards because the bill comes at the end of the month.

He added, “I believe in cash and not Mastercard or VISA.” During histestimony, he also expressed concern about credit card fraud. [41] While he originally denied making any statement to her about Mumbai during his interview with Officer Bosley, during cross-examination, he contradicted himself. Mr. Khan admitted to telling her that Mumbai was not a clean city, and added that he did “notmean it as a put down.” He said that he comes from another city in India himself. [42] During cross-examination, when asked how long he had been a taxi driver, he said 35 years.

When the Prosecutor pointed out to himthat in his original statement to Officer Bosley he said that he had driven for 37 years, he replied that he began in 1972. [43] When asked why, in his original statement to Officer Bosley, he admitted to making a statement about credit cards, but at trial, healso admitted to his comment about Mumbai. He did not respond to this question in any meaningful way. Linda Hayes: [44] Linda Hayes testified as a witness for the defence. She was a character witness for Mr. Khan, who has been her regular taxi driverfor over the last three years. [45] Ms. Hayes said that Mr.

Khan takes her for rides about three times per month, and has for more than three years. She has neverheard him make any comments about race or gender. She describes him as a “very nice person,” who only asks about her health. Shesaid that she pays him in cash. [46] She explained that when he gave her a ride about three months ago, he told her that he had a problem with one of his customers, andasked her if she would be a character witness for him. She was unaware that he had been accused of this offence on prior occasions. [47] Ms. Hayes described Mr. Khan as a friend.

ANALYSIS: Findings of Fact and Law: [48] Based on all the evidence before me, I am satisfied that there is no dispute that on the date, time and location in question, Mr. Khanwas appropriately licensed with the City of Toronto and that he drove the taxi in which Ms. Bering was his passenger. [49] Whether or not Mr. Khan made the statements described by the complainant is a matter of credibility. Defence counsel, in his finalsubmissions, re-asserted Mr. Khan’s denial of the allegations, and referred to his character witness, to argue that if Mr.

Khan made ahabit of making inappropriate commentary, that his other passenger, who has ridden in his taxi about 100 times over the past three years,would have also heard him make such comments. Defence counsel also argued that there were gaps in the officer’s notes, and submittedthat the case had not been made out beyond a reasonable doubt. [50] Justice Cory, as he then was, for the majority in R. v.

W.(D.) (S.C.C.), [1991] 1 S.C.R. 742, established the test forthe assessment of credibility, as follows: Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well instruct the jury on the question of credibility along these lines: 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 you 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [51] Mr. Khan contradicted himself during his testimony at this trial twice: first, on the issue of whether or not he recognized Ms.Bering; and secondly, on the issue of whether or not he disparaged credit card users for paying their bills at the end of the month. Mr.Khan also changed his evidence when he admitted at trial that he said Mumbai was not a clean city to Ms.

Bering, from his interviewwith Officer Bosley, at which time he denied having made that statement to Ms. Bering. [52] During his testimony, he failed to address whether or not he disparaged Canadian women as mercenary, although he did deny

making disparaging comments about Jews, police officers and Jamaicans, and generally denied the allegations. However, I am satisfiedthat he intended to deny the alleged statement about Canadian women, as well, when he made his blanket denial statement. [53] In contrast, Ms. Bering’s testimony was clear and cogent throughout the trial, and it was also consistent with the email that she sentOfficer Bosley, dated October 29, 2012, which was read out in court, but not made an exhibit. At no time was she shaken in hertestimony, unlike Mr.

Khan, who did not fare well during cross-examination, and whose memory was selective. [54] For these reasons, I rely upon the third part of the test in R. v. W.(D.), since the testimony of Mr. Khan contained materialinconsistencies, and also contradicted the information he had provided to Officer Bosley, in which he denied making the statements andclaimed that the complaint was the result of Ms. Bering’s pique at having to pay his fare in cash because he did not have a credit cardmachine in his vehicle. Standard of Proof [55] The prosecutor must prove that the offence has been made out beyond a reasonable doubt.

In R. v. P.G. 2013 ONCA 520 .Justice Epstein, for the Court of Appeal, summarized this standard as follows, at paragraph 21: In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, Iacobucci, J. explained that one effective way to define the standard of proof is toexplain that it is much closer to absolute certainty than to a balance of probabilities. However, it is clear that there is more than oneeffective way to explain reasonable doubt. Instructions that include the word “sure” together with the other aspects of the standard ofproof description set out in R. v.

Lichus, (SCC), [1997] 3 S.C.R. 320 at para. 39, have been held to provide the jurywith the necessary standard of proof guidance. See: R. v. Hall (2004). (ON CA), 193 O.A.C. 7 (C.A.) at paras. 34-36 and R. v. Archer (2005), (ON CA), 202 C.C.C. (3d) 60 (Ont.C.A.) at paras. 36-38. These decisions aredispositive of this argument. [56] I am satisfied, beyond a reasonable doubt, that Mr. Khan made the statements as alleged by Ms. Bering. [57] Mr.

Khan’s comments to his passenger were not “civil” in that they were impolite, and they violated the Human Rights Code,R.S.O. 1990, c.H. 19 based on the intersection of various enumerated grounds (race, ancestry, place of origin, sex and creed) and theright to equal treatment with respect to services, under

section 1, which states: Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry,place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status,family status or disability. [58] The Human Rights Code is a fundamental law, and its primacy has been affirmed by the Legislature, both in terms of itsapplicability to private citizens and to public bodies, see: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006SCC 14, at para. 13.

While human rights issues are not directly brought before me in this court, I rely upon paragraph 14 ofTranchemontagne for the principle that I have a “responsibility of applying the Code in order to render a decision that reflected thewhole law of the province.” [59] This sort of commentary is inappropriate for a licensed taxi driver to make to a passenger, on any lawful standard.

Since his licenceis held with the City of Toronto, his commentary also falls under sections 2.3 and 4 of the City of Toronto’s Human Rights and Anti-Harassment/Discrimination Policy. [60] The issue of civility within the legal profession has been considered by the Supreme Court of Canada in Dore v. Barreau du Quebec,2012 SCC 12, [2012] 1 S.C.R. 395. In that case, the decision by the Barreau to reprimand a lawyer for a vituperative letter he sent to ajudge, was upheld.

Justice Abella, writing for the Court, found that the excessive degree of vituperation in the letter’s context and tone,warranted the reprimand, and represented a proportional balancing of the lawyer’s expressive rights with the statutory objective ofensuring that lawyers behave with “objectivity, moderation and dignity.” [61] Mr.

Khan’s negative comment to his passenger about credit-card users did not meet the definition of “well-behaved,” since it is notappropriate to chastise customers about their spending practices when working in a service industry. [62] As for his views about Mumbai, it also fell short of being “well-behaved,” since he knew that his passenger’s father was from thatcity, when he described it as “dirty.” Although it was not her place of origin, he knew it was her father’s place of origin, when he said itwas “dirty.” ORDER: [63] Accordingly, I find that the offence of “fail to be civil and well-behaved” has been made out beyond a reasonable doubt, and I

hereby enter a conviction. Dated at Toronto, this 10 th day of February, 2014. ____________________________ Mary A. Ross Hendriks, J. P.