R. v. Persaud, 2015 ONCJ 344

Citation: R. v. Persaud , 2015 ONCJ 344 Case Name: R. v. Persaud Between Regina, and Savitri Persaud Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: April1, 2015. Judgment: June 22, 2015. Charge: Permit Motor Vehicle to be operated without insurance contrary to section 2(1) (

b) of the Compulsory Automobile Insurance Act Counsel Mr. S. Davidson: Provincial Prosecutor Mr. R. Clarke: Agent for the defendant REASONS FOR JUDGMENT P. KOWARSKY J.P. A. THE CHARGE 1 . The defendant is charged with - "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.

B. THE EVIDENCE FOR THE PROSECUTION 2 . The evidence of Officer L. Verdoold may be summarised as follows:

a) He is a Police Officer employed as such by the Toronto Police, and was so employed on the 28 th August 2014.

b) On that date, at approximately 12:16 pm, he was in full uniform, driving a marked police motor vehicle southbound on Highway 400 in the City of Toronto.

c) At that time he observed a Dodge motor vehicle, Ontario Licence Plate Number BCMM675, travelling directly in front of him.

d) He entered the licence plate number using his on-board computer system in order to ascertain the status of the vehicle in the records of the Ministry of Transportation.

e) After so doing, he stopped the Dodge motor vehicle, and requested the Driver’s Licence, Ownership Registration and Proof of Insurance from the male driver, who was the sole occupant of the vehicle.

f) The driver produced an Ontario Driver’s Licence in the name of Nel Prashad, born on December 11 th 1959 with an address of 62 Skyvalley Drive in Brampton, Ontario. The digitized photograph on the Licence matched the likeness of the driver, and the officer was satisfied with his identification.

g) Mr. Prashad did not produce the permit nor any proof of insurance with respect to the vehicle.

h) After a brief conversation with the driver, the officer permitted him to leave without laying any charges.

i) On September 4 th 2014 at approximately 3:35 pm he called State Farm Insurance “and received certain information” and he was not satisfied that the said motor vehicle was insured.

j) He then charged the defendant with "Permit Motor Vehicle to be operated Without Insurance" contrary to section 2(1) (

b) of the Compulsory Automobile Insurance Act. C. EXHIBIT 3 . The Prosecutor tendered a document under the signature of the Registrar of Motor Vehicles and the seal of the Ontario Ministry of Transportation. It is known as a ‘Plate by Date’ Search, and indicates that on the 28 th August 2014, the registered owner of the Dodge motor vehicle, Ontario Licence Plate # BCMM675 was Savitri Persaud, the defendant in these proceedings. The document was accepted into evidence and marked “Exhibit #1. D. CROSS EXAMINATION

4. In response to Mr. Clarke’s questions, the officer testified that:

a) the driver of the motor vehicle on the date and time in question did have the key to the vehicle he was driving;

b) he performed the appropriate checks, and noted that the vehicle concerned had not been reported as stolen or taken withoutpermission;

c) it was possible that the vehicle could have been reported as stolen or taken without permission at a time after he had madethose checks. E. THE PROSECUTION CLOSES ITS CASE 5. After the close of the Prosecution’s case, defence agent, Mr. Clarke asked me to dismiss the charge on the grounds that the prosecutorhad failed to establish any link between the defendant and the driver, and that consequently, the prosecutor had failed to prove that thedefendant permitted the driver to drive her motor vehicle. 6.

The prosecutor objected, and provided the court with two cases in support of his contention that once ownership has been establishedas in this case, if the vehicle was then being driven by another person, it is sufficient proof that the defendant permitted the driver todrive the vehicle while it was not covered by a valid policy of insurance. 7. Although two cases were provided to me by the prosecutor, he relied only on R. v. Bedard, [2009] O.J. No. 4720 (O.C.J.) in supportof his position.

In Bedard, the defendant was acquitted of the offence of while being the registered owner of a motor vehicle, hepermitted someone to drive it on a highway in Ontario at a time when it was not covered by a valid policy of insurance. 8. The Crown brought an appeal under

section 116 of the Provincial Offences Act. The appeal court reversed the decision of the courtbelow, and convicted the defendant. F. ANALYSIS 9. With the greatest of respect, for the reasons which follow, in my view:

a) The court in Bedard misapprehended the ruling of Dickson J. in Sault Ste. Marie (City) (SCC), [1978] 2 S.C.R.1299 with respect to the requirements in relation to the prosecution of strict liability offences; and

b) The case at bar is distinguishable from the situation in Bedard. 10. In the paragraph immediately prior to Dickson J’s statement: ..that there are compelling grounds for the recognition of three categories of offences rather than the traditional two the learned Judge of the Supreme Court of Canada stated in relation to strict liability offences as follows: 11. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act,the defendant must only establish on the balance of probabilities that he has a defence of reasonable care. (My underlining foremphasis).

12. In reversing the decision of the court below, the appeal court in paragraph 4 of Bedard, made the following comment: The defence called no evidence but the Justice of the Peace dismissed the charge on the basis that the Crown had produced noevidence that the accused permitted the driver in question to operate the motor vehicle. 13. By so doing, I believe that the court of appeal appeared to indicate that there is no obligation on the Crown to produce evidence thatthe accused permitted the driver in question to operate the motor vehicle.

And at paragraph 6 the Court said: In my view, this case can be disposed of on the basis of R. v. City of Sault Ste. Marie (SCC), 40 C.C.C. (2nd) 353. 14. While I am in total agreement with that statement, it seems to me that the appeal court failed to follow the direction of the S.C.C.when rendering its decision. In my view, the only issue was not whether said

section is a strict liability offence. The only issue besidesthe categorization of the offence is initially to determine whether the prosecution has proven the elements of the offence beyond areasonable doubt. 15.

At paragraph 13 of Bedard, the learned judge appeared to disregard the actus reus completely, when after finding that the offence isindeed a strict liability offence, without any reference to the actus reus, he immediately addressed the defence of due diligence when hesaid the following: It was open to the defendant to demonstrate that she took reasonable care to prevent the operation of the motor vehicle that wasuninsured, that it was operated without her permission, or that she believed in a set of facts which, although mistaken, if true would afford her a defence under the section.

Although the defendant was fully aware of the trial and was present in court, shechose not to do so. Accordingly, on the evidence, she ought to have been found guilty. The appeal of the Crown is allowed and afinding of guilty is entered on that basis alone. (My underlining for emphasis). 16. The way I understand that decision is that it stands for the proposition that whether or not the actus reus has been proven, thedefendant is obligated to testify with respect to a due diligence defence. Because she did not do so, she was found guilty.

With the utmostof respect, the jurisprudence does not support such a finding at all. 17. The overwhelming jurisprudence with respect to the category of the offence under section 2 (1) (

b) of the Compulsory AutomobileInsurance Act, is that it is a strict liability offence. In accordance therewith, I am satisfied that it is a strict liability offence. 18. The reasons for my contention that the court in Bedard misapprehended the strict liability requirements as set in Sault Ste. Marie(supra) are set out below. 19.With effect from the judgment of the Supreme Court of Canada in Sault Ste. Marie (City) (supra) jurisprudence abounds that beforethe defendant is required to endeavour to establish due diligence, the Crown must prove the essential elements of the offence beyond areasonable doubt. 20.

In R. v. Celanese Canada Inc. [2001] O.J. No. 3420 the Ontario Court of Appeal was considering an appeal with respect to a chargeunder section 30(1) of the Ontario Water Resources Act, R.S.O. 1990, which provides as follows: Every person that discharges or causes or permits the discharge of any material of any kind into or in any waters or on anyshore or bank thereof or into or in any place that may impair the quality of the water of any waters is guilty of an offence. 21. Referring to R. v. Sault Ste.

Marie (supra), Carthy J.A., writing for the Court in Celanese, made the following statement atparagraph 12: That seminal judgment fixed the demarcation between the Crown’s obligation to prove the actus reus beyond a reasonabledoubt, and the regulated party’s onus of establishing due diligence on a balance of probabilities

22 . In R. v. Dan Garmache Trucking Inc., [2005] B.C.J. 2288 a decision of the British Columbia Supreme Court, the defendant was charged, as a carrier, with authorizing or permitting the operation of a commercial motor vehicle on a highway, without complying with the requirements of the British Columbia Motor Vehicle Act. The Court noted the importance of maintaining the distinction between the actus reus and the due diligence defence in a strict liability prosecution.

The Court held that whereas the onus on the Crown was to prove beyond a reasonable doubt that the defendant permitted the operation of the vehicle on the highway when the vehicle did not comply with the requirements of the Act and Regulations, the defendant’s onus was to prove due diligence. 23 . Very recently, in a case called R. v. Gay, [2015] O.J. No. 1937 , the Ontario Court of Justice, sitting as a Court of Appeal, was dealing with a strict liability offence.

After citing numerous sources, the Court held that because it is a strict liability offence, the burden on the Crown is discharged upon proof of the actus reus of the offence. Once the Crown establishes the actus reus of a strict liability offence, the burden shifts to the defendant to show that he was not at fault. Accordingly, if the appellant hoped to avoid conviction, the burden was on him to establish that he exercised due diligence. 24 . In another case just recently released: R. v. Sinnadural, [2015] O.J.

No. 1404 , Libman J. was dealing with an appeal by a person who had been convicted of permitting someone to drive his motor vehicle while it was not covered by insurance pursuant to section 2 (1) (

b) of the Compulsory Automobile Insurance Act. In allowing the appeal and overturning the conviction, the learned judge made the following extremely pertinent comments which, in my view, support my understanding of the law as set out in these reasons: At paragraph 2 : The case that was presented before the Justice of the Peace was that of a woman who the Crown alleges to be the wife of the accused, was driving an uninsured car.

At paragraph 3 : While I am satisfied through the careful argument of Crown counsel that it may well have been available for the justice to reach the conclusion that the operator of the uninsured car was in fact the wife of the registered owner, what did remain a live issue to have resolved was whether the defendant was proven guilty of the strict liability offence of permitting a vehicle to be operated [without insurance]. That is to say, there are different elements of the offence when one is charged as the operator or permitting the other to be the operator.

At paragraph 5 : … as other members of this court have noted, such as Justice Ray, where the element of permitting the vehicle to be driven is alleged, that element must in fact be proven to the satisfaction of the court. 25 . I am satisfied that the determination of guilt in strict liability cases is a two-step process, namely: Step one : The prosecution must prove the actus reus of the offence beyond a reasonable doubt.

Step two: If the prosecutor does succeed in proving the actus reus beyond a reasonable doubt, then and only then, does the onus shift to the defendant to endeavour to establish due diligence on a balance of probabilities. 26 . It follows, in my respectful opinion, that if at the close of the prosecution’s case, the court is not satisfied that the prosecutor has proven the actus reus beyond a reasonable doubt, the defendant is not required to testify at all with respect to a defence of due diligence. 27 .

It is noteworthy that after granting the appeal and entering a conviction, the Court in Bedard added at paragraph 14: The Crown has further submitted that production of the ownership is some evidence that the driver was the agent of the owner. I agree with this contention. The driver had no difficulty producing the ownership and, apparently, knew where to find it with ease. 28 . The distinguishing aspect relative to Bedard, is that in the case at bar, as opposed to the driver in Bedard, the evidence of the officer is that the driver did not produce either the ownership document or proof of insurance.

H. FINDINGS 29 . The first question is: What are the elements of the offence before this court? In order to prove the actus reus beyond a reasonable doubt, the prosecution must prove that:

i) The defendant was the owner or lessee of the motor vehicle at the time that the officer stopped the driver; ii) The motor vehicle was not covered under a valid contract of automobile insurance at the time; and iii) The defendant permitted the driver to drive her vehicle on the highway while the vehicle was not so covered by insurance. 30 . From the evidence before me I find that the defendant was the registered owner of the vehicle at the time the officer stopped it. 31 . The evidence with respect to whether the vehicle was insured at the time is somewhat wanting.

All I have heard is that the officer called a particular insurance company, and received “certain information” which led him to lay the charge against the defendant. Presumably, I am required to infer that the information which the officer received was that the vehicle was not insured at the time of the offence since there is no further evidence before me. The best evidence would have been for a representative of the insurance company which the officer called, to testify in relation to the insurance situation with respect to the vehicle at the time of the offence. 32 .

Moreover, even if I were to accept that the vehicle was not insured at the time, what evidence is there before me that the defendant permitted the driver to drive the car? In essence, the prosecutor, relying on the decision in Bedard , submits that once ownership and lack of insurance are established, if the car was being driven on a highway, the court must find that the owner permitted the driver to drive her car, and therefore, unless she is able to establish due diligence, the defendant must be convicted. I disagree. See: R. v. Kuzmanov, [2012] O.J. No. 5033 (O.C.J.) . 33 .

In Kuzmanov the Court cited the case of R. v. Sawa, [2008] O.J. No. 5994 (O.C.J.) which was an appeal by the Crown of an acquittal on a charge under section 2 (1) (

b) of the Compulsory Automobile Insurance Act. The Crown argued that the Justice of the Peace had erred in law by finding that the evidence presented by the Crown did not establish beyond a reasonable doubt that the defendant had permitted the driver to operate the vehicle. 34 . In Sawa at paragraph 18, agent for the Appellant proffered the following: The Crown’s position was that because of the fact that someone else was driving the vehicle and that there had been no report that the vehicle had been stolen, that that in itself was proof beyond a reasonable doubt that Mr.

Sawa had given the driver permission to operate the motor vehicle. And the Appellant’s position is that that would not be a reasonable inference to make to establish the foundation for a reasonable inference that Mr. Sawa did give permission to the driver to operate that vehicle . 35 . Hogan J. found that there was insufficient evidence that the defendant permitted the driver to drive the vehicle, dismissed the Crown’s appeal, and upheld the acquittal. 36 . In the case at bar, the officer testified that at the time of his investigation there was no report that the vehicle had been stolen or taken without consent.

However, under cross-examination he conceded that it was possible that the vehicle could have been reported stolen or taken without permission sometime after his initial enquiry. Results of such a further enquiry, of which there is no evidence, may well have assisted the court in relation to the element of ‘permit.’ 37 . Ownership and lack of insurance do not automatically lead to a finding that just because the driver was driving an uninsured motor vehicle on a highway, the owner is guilty of permitting the driver to drive her car. See: R. v. Sinnadural [ supra ]. 38 .

In my view, the prosecution must prove beyond a reasonable doubt that the defendant permitted him to drive her vehicle before the

onus would shift to the defendant to establish due diligence. 39 . Such consent may be proven by direct evidence as in the case where the owner was a passenger in the car being driven by the driver when it was stopped by the police. However, consent may also be established by circumstantial evidence. : See R. v. Ehharevba, [2012] O.J. No. 397 (O.C.J.) cited by the court in Kuzmanov (supra) . In Egharevba the court of appeal made the following ruling at paragraph 16: “The ‘word permit’ can be proved by circumstantial evidence but it has to be cumulatively strong enough for an inference of guilt to be drawn.” 40 .

In R. v. Ikponmwosa, [2011] O.J. No. 1367 (O.C.J.) I convicted the defendant of permitting a driver to drive his uninsured motor vehicle on the strength of the circumstantial evidence. 41 . One way or the other, I am satisfied that the onus is always on the prosecution to prove the essential elements of the offence beyond a reasonable doubt before the defendant is required to prove due diligence on a balance of probabilities. 42 .

To the extent that I may be bound by the decision in Bedard, I find the decisions of the same level of court in Sawa and Sinnadural to be more persuasive, and accordingly, I choose to follow those decisions. I. DISPOSITION 43 . For all of these reasons, I am not satisfied that the prosecution has proven the first two elements of the offence as enumerated above, beyond a reasonable doubt. The evidence of the officer as to why he charged the defendant after receiving certain information from the insurance company is not compelling.

Moreover, there is no evidence before the court whatsoever that the defendant permitted the driver to drive her motor vehicle while it was not covered by insurance. Consequently, the charge is dismissed. P. Kowarsky J.P.