R. v. Conroy, 2011 ONCJ 165

Citation: R. v. Conroy , 2011 ONCJ 165 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TIMOTHEY CONROY ********** REASONS FOR JUDGMENT GIVEN BY HIS WORSHIP JUSTICE OF THE PEACE D. D’IGNAZIO at the Ontario Court of Justice, Hamilton, Ontario, on February 8, 2011. ********** APPEARANCES : C. Peters Provincial Prosecutor P. Stunt Counsel on behalf of Timothey Conroy TUESDAY, FEBRUARY 8, 2011 R E A S O N S F O R J U D G M E N T

D’IGNAZIO, J.P. (Orally): These are the reasons for decision in the hearing of Timothey Conroy, the defendant, who, on or about the 3 rd day of June 2010 at the City of Hamilton, was charged with being the owner of a motor vehicle, licence 507M1, Ontario issue, and did permit the said motor vehicle to be operated upon a highway, namely 6 Highway, and did fail to have the motor vehicle insured under a contract of automobile insurance, contrary to the Compulsory Automobile Insurance Act , section 2(1)(b). The defendant was represented by counsel, Mr. Paul D. Stunt.

The defendant testified on his own behalf and called upon Mathew Galbraith to give testimony. The Crown was represented by Mr. Cameron Peters who called upon Ontario Provincial Police Officer Recoskie as a witness. The Crown tendered two documents into evidence, both under the hand and seal of the Ontario Registrar of Motor Vehicles; an Ontario plate registration for plate 507M1, and a vehicle identification registration for Vehicle No. JS1VS56A762104411. Both documents were accepted by the court and marked as Exhibits 1 and 2 respectively.

The merits of the case and submissions were heard on January the 4 th , 2011. The hearing was adjourned sine die to allow both counsel to provide the court with pertinent case law and further submissions. Such were received by the court on January 17 th , 2011 from the Crown, and shortly thereafter from Counsel Stunt. Section 2(1)(

b) of the Compulsory Automobile Insurance Act states that, “Subject to the regulations, no owner or lessee of a motor vehicle shall, (

b) cause or permit the motor vehicle to be operated, on a highway unless the motor vehicle is insured under a contract of automobile insurance.” The defendant argues that he should not have been charged as the owner of the motorcycle in question because, quite simply, he is not the owner. In the alternative, the defendant relies on the defence of due diligence to exonerate him of any fault in this matter. The Crown argues that the issue is ownership of the motor vehicle in question. According to the Crown the owner was and is the defendant, not Mr.

Galbraith and, as such, the owner was rightly charged by Officer Recoskie. The Crown further argues that there is no defence for the defendant in this matter and urges the court to find the defendant guilty. The onus is on the Crown to show this court the defendant’s guilt beyond a reasonable doubt. The facts of what occurred on June the 3 rd , 2010 that led Officer Recoskie to issue the defendant with a summons for the charge in question are largely not in dispute.

In short they are as follows: Officer Recoskie was travelling southbound on Highway No. 6 North in the City of Hamilton when he first observed a motor vehicle, specifically a motorcycle, being driven on that same highway. Shortly thereafter he stopped that motorcycle just north of Milgrove Road in the City of Hamilton. The motorcycle had a licence validation sticker showing an expiration date of November 2008. The driver of the motorcycle identified himself as Mathew John Galbraith with an Alberta licence. Mr. Galbraith stated that it was his motorcycle.

According to Officer Recoskie, he then asked for proof of registration and insurance. Mr. Galbraith could not provide these documents so the vehicle was towed to a compound. According to Officer Recoskie, Mr. Galbraith and the defendant came to see him at the police station some time later. In the voir dire the court heard that the defendant told Officer Recoskie that he bought the motorcycle for Mr. Galbraith who, at that time, was the defendant’s personal assistant.

According to Officer Recoskie, the defendant told him at that time, “I bought it and insured it, gave it to Matt, thought he had transferred it.” This was corroborated by Mr. Galbraith who, in his testimony, stated that the defendant purchased the 2006 Suzuki motorcycle for him. Mr. Galbraith further testified that the defendant then registered and insured it under his, the defendant’s, name because he, Mr. Galbraith, did not have an appropriate licence for the motorcycle at that time. According to Mr. Galbraith, he acquired the requisite licence and took possession of the motorcycle shortly thereafter. Mr.

Galbraith explained that the defendant “signed over” the “vendor” part of the registration certificate and gave it to him. According to Mr. Galbraith, it was intended that he would then insure the motorcycle himself and register the motorcycle with the Ministry of Transportation as he was legally obliged to do. Unfortunately, according to Mr. Galbraith, he did neither. He then left Ontario and the motorcycle was stored at the defendant’s house.

The defendant testified that he did indeed buy the motorcycle for Mr. Galbraith for $10,000. He also registered it and insured it in his name and drove it from the place of purchase to his home as Mr. Galbraith could not legally drive the motorcycle at that time. At no time was it his intention to keep the motorcycle for himself. According to the defendant, he has a clean driving record and did everything he could to comply with the law. He gave the motorcycle to Mr. Galbraith along with the signed “vehicle portion” of the registration permit.

He believed, therefore, that the motorcycle was no longer his and that Mr. Galbraith would be registering it in Mr. Galbraith’s name. Ownership of the motor vehicle is indeed one of the main issues here. But what is meant by “ownership”? Surprisingly, neither counsel devoted much time in the form of meaningful argument in this regard. It appears that the Crown simply assumes that the defendant is the owner. Similarly, the defendant assumes that he is not. Regardless, it is important for this court to turn its mind to the issue of ownership in a focused way.

The term “owner” is not defined in the Compulsory Automobile Insurance Act . According to the Highway Traffic Act of Ontario , Annotated, the “owner,” on whom rests the obligation to register a motor vehicle before operating it, is not defined in the Ontario Act. But clearly different considerations arise under

section 192 where the liability imposed on an owner may attach to either the registered or the true owner, depending on the circumstances. It should be noted that the Act does provide a definition for “owner” for the purposes of

section 39.1 which deals with picking up passengers for compensation, specifically, “in the absence of evidence to the contrary, the holder of the permit or the plate portion of the permit for the vehicle” is deemed to be the owner. To understand ownership in the legal sense one must first understand the meaning of “title.” Simply, “title” is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties.

It may also refer to a formal document that serves as evidence of ownership. Conveyance of that document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases both possession and title may be transferred independently of each other. “Possession” is the actual holding of a thing, whether or not one has any right to do so.

The right of possession is the legitimacy of possession, with or without actual possession, the evidence for which is such that the law will uphold it unless a better claim is proven. The right of property is that right which, if all relevant facts were known and allowed, would defeat all other claims. Each of these may be in a different person. So who owns the 2006 Suzuki motorcycle in question; is it the defendant, is it Mr. Galbraith, is it someone else? The answer is not as simple as one would think on first examination.

We have heard in the first instance that a valid sale of the motor vehicle was made to the defendant for the consideration of $10,000. The defendant thus became the owner of the vehicle at common law. He then proceeded to register the motor vehicle, and thus also became the registered owner of the motor vehicle for the purpose of the Highway Traffic Act of Ontario . All this does not appear to be in dispute. The defendant then transferred the motor vehicle to Mr. Galbraith for no consideration. In other words the defendant gifted the motorcycle to Mr. Galbraith, as was his right to do. Mr.

Galbraith accepted the gift and took possession of the motorcycle which made him the new owner of the motorcycle at common law. As the motor vehicle was subsequently not registered in his name after he became the common law owner, Mr. Galbraith was not the registered owner of the motor vehicle for the purpose of the Highway Traffic Act of Ontario . This also does not appear to be in dispute. It may come as a surprise to some but there is no registry or other place in Ontario that one can approach to ascertain definitively who has title to a motor vehicle in a way one can for land.

In fact, no jurisdiction in Canada has implemented a certificate of title system. To

elucidate this point the court refers to the 2006 research paper of Professor Ronald C.C. Cuming, Q.C., College of Law, University of Saskatchewan. This court finds Professor Cuming’s findings informative and persuasive. This court will be quoting his work extensively. According to Professor Cuming, all states of the United States of America have some sort of title certificate system for motor vehicles.

These systems are based on the proposition that “what you see on a title certificate is what you get.” So a person who is disclosed as an owner in the records of the relevant authority, or the paper title issued by the authority, is in law the owner of the vehicle. Professor Cuming states that the principal policy basis for certificate of title legislation is to provide certainty with respect to legal ownership of a motor vehicle. His conclusion is that significant uncertainty as to the ownership of motor vehicles can be very detrimental to Canadians and to commercial activity in Canada.

A prophetic observation if there ever was one. What do we have in Canada? All provincial and territorial jurisdictions in Canada provide for “registration” of a wide range of motor vehicles. A registration, which accompanies the issue of a permit with respect to a motor vehicle, identifies the so-called “owner” of the vehicle and records other information relating to it. Professor Cuming stresses that these systems have not been designed to be and do not function as ownership registries.

The registration of ownership, as provided by this legislation, does not result in the legal conclusion that a registered owner is the legal owner of the vehicle. In some provinces highway traffic legislation clearly distinguishes between registered owner and the owner under general law; for instance, in New Brunswick. In others there is a prima facie presumption that the registered owner is the legal owner for the purposes of the policies implemented by the legislation.

However, the courts have recognized that the determination of ownership for the purposes of the Highway Traffic Act legislation does not control the outcome of a dispute as to who is the owner of the vehicle where the issue is not one addressed in the legislation; specifically Hayduk et al v. Pidoborozny , a 1975 Supreme Court of Canada decision, and Bois v. McDonald, an Alberta Court of Appeal decision [1975].

In fact, for some time now the courts have recognized that there can be more than one owner, the legal owner and the owner deemed to be such for the purposes of highway traffic legislation; again, Furjes v. Goodman et al (1956); Yaeger v. Heilman [1948], the latter is a Saskatchewan Court of Appeal decision and the former is an Alberta Provincial Court decision. These purposes generally include collection of revenue, setting liability for damages caused by the operation of a vehicle and, in some provinces such as British Columbia, for the public auto insurance system to provide insurance coverage.

Although motor vehicle registration systems in Canada were not designed to provide protection to buyers and creditors in determining who actually owns a motor vehicle, it has been recognized in several Canadian jurisdictions, such as Ontario, that the vehicle registration records held by government agencies pursuant to highway traffic legislation can be of assistance to buyers in reducing the risk of loss when buying used motor vehicles.

Section 11.1 of the Ontario Highway Traffic Act requires that every person who sells, offers for sale or transfers a used motor vehicle must provide to the purchaser or transferee a used vehicle information package in respect of the vehicle issued by the Ministry of Consumer and Commercial Relations or the Ministry of Transportation. The package consists of a statement of all registrations relating to the vehicle under the Personal Property Security Act and the Repair and Storage Liens Act and the Ontario registration history of the vehicle.

The purchaser or transferee can determine from this information who was the registered owner at the various stages of the life of the vehicle, so long as it was licensed in Ontario during this time, according to the records of the Ministry of Transportation. While there is no statutory guarantee that any of these registered owners were or is the legal owner of the vehicle for purposes other than the highway traffic legislation, this type of system can be very helpful in giving a large measure of comfort to a potential buyer of a motor vehicle that was originally purchased new from a retail seller in Ontario.

In the aforementioned Supreme Court of Canada decision Hayduk v. Pidoborozny, Justice Ritchie stated, “I think it to be a significant indication of the importance and effect that the Legislature intended to give to registration of ownership of a motor vehicle that proof of such registration is, by the clear terms of this

section of the statute, to be treated as proof of ownership unless and until the contrary be shown.” As previously stated, the court then proceeded to recognize that there may be in fact more than one owner under the provisions of the Act. This notion of dual ownership raised its head once again in the Supreme Court of Canada decision in Honan v. Gerhold et al, 1975.

Although the fact situation in that case is not exactly on point as the case at bar it does warrant consideration. In that case a person by the name of Doman had been the real and registered owner of a vehicle which was involved in an accident for which he was responsible. Previous to the accident, fearing execution of an alimony judgment, he had secured registration of that vehicle in the name of Gerhold by execution of a transfer and payment of sales tax on the transfer and registration costs.

Doman retained sole control of the vehicle and continued to operate it, but Gerhold had insured the vehicle and remained its registered owner. The court found Gerhold to be jointly responsible with Doman for damages resulting from the accident. He was deemed to be an owner for several reasons, amongst which was that he had insured the vehicle and was the registered owner. The case law appears to be quite consistent and determinative in finding that the meaning of the term “owner” is not fixed but is capable of a flexible

interpretation to meet cases as they arise. This court is satisfied that in the circumstances of this case there were two owners of the 2006 Suzuki motor vehicle at the time Officer Recoskie issued the summons to the defendant. Mr. Galbraith was the common law or legal owner of the motorcycle as a result of the defendant transferring it to him in the way previously indicated. The defendant, in turn, was the registered owner of the motor vehicle, as evidenced by the uncontested declarations in Exhibits 1 and 2. The court is therefore satisfied the defendant was an owner for the purpose of section 2(1)(

b) of the CAIA. The Crown has proven the guilty act beyond a reasonable doubt. There is no reasonable doubt in my mind. I have considered the Supreme Court of Canada decision in R. v. W.(D.) in arriving at this decision. The defendant seeks relief from this consequence by fastening on the defence of due diligence. I agree that this is an offence of strict liability and that the defence of due diligence is available to the defendant, R. v. Bedard [2009]. The test for this defence is on a balance of probabilities. Relying on the seminal case of R. v. Sault Ste.

Marie the defendant contends that he took all reasonable steps to avoid the commission of the prohibited act; he had a belief and a mistaken set of fact which, if true, would render the act or omission innocent; he did what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act. The answer is clear enough to this court. With respect, the court is satisfied that the wrong committed by Mr. Galbraith does not exonerate or otherwise cancel the wrong committed by the defendant.

The defendant cannot succeed in a defence of due diligence for the following reasons: First, the defendant did not take all reasonable steps to avoid the commission of the prohibited act. The case of Budny v. Senchal

(1990) Ontario General Division decision is instructive on this point. In that case A was the registered owner of a vehicle. He gifted the vehicle to B. B was to have certified the vehicle, change its registration and transfer the insurance. B did not do so. B was involved in an accident. One issue to be determined at trial was the ownership of the vehicle. Judgment was granted against both A and B because the safety check was not performed, the insurance not placed and there was no registration to effect in the name of the donee.

A was the registered owner within the meaning of section 166(1) of the Highway Traffic Act , now section 192(1) . According to the court A was negligent in allowing the licence plates to continue to be registered in his name, allowing those same plates to continue to be affixed to the car and allowing his insurance to expire rather than cancelling it. In this case, once the defendant transferred the motorcycle to Mr.

Galbraith it was his responsibility to do several things: Purchase a Used Vehicle Information Package; give the completed Used Vehicle Information Package, along with the vehicle portion of the registration permit, to the transferee; remove the licence plates from the motorcycle; remove the plates as registered to himself, and; cancel his insurance as an indication that he was no longer the owner of the motorcycle. He did none of these. It should be noted that the defendant had another opportunity to remove himself as the registered owner of the motorcycle.

A licence plate renewal application is mailed to the registered owner of a motor vehicle by the Ministry of Transportation approximately 60 to 90 days prior to the plate expiry, usually on the registered owner’s birth date. The defendant stated that he wasn’t aware of the notification as he let Mr. Galbraith handle his mail at the time. As such he did not know that he was still the registered owner or else he would have taken action to rectify the situation. The Crown asked the court to consider the decision in R. v.

Courtaulds Fibres Canada , a 1972 [sic] Ontario Provincial Court decision where the court held that, “Reasonable care and ... diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and

continuing action.” The court is satisfied that the defendant’s actions cannot even remotely be so described. Second, the defendant may truly have had an honest belief and a mistaken set of facts which if true would render the act or omission innocent, but this is not, in and of itself, sufficient. The Crown rightly points to the Ontario Superior Court of Justice sitting as

summary conviction appeal court finding in R. v. Stelco [2006] decision to address this aspect of the due diligence defence. In that decision the court found that in order to sustain a due diligence defence the defendant had to show that his actions or inactions were objectively reasonable; “Due diligence imports a standard of objective reasonableness, [an] honest subjective belief is not enough.” This court is satisfied the defendant has not met this required standard. Third, the defendant did not do what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act.

The Supreme Court of Canada decision in R. v. Pontes [1995] sets out factors to determine what actions or inactions are required to constitute a strict liability offence. Specifically, Justice Gonthier states, “[An offence of strict liability] requires the minimal mental element of negligence in order to ground a conviction.

Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonable person would take.” The actions of the defendant as highlighted above clearly shows the he did not take those steps that a reasonable person would have been expected to take. The court is satisfied that the Crown has proven the guilty act beyond a reasonable doubt. The defendant’s due diligence defence cannot succeed for the reasons provided. There will be a finding of guilt. There will be a conviction entered.