R. v. Cabeldu, 2016 ONCJ 756

CITATION: R. v. Cabeldu , 2016 ONCJ 756 DATE: November 29, 2016 Provincial Offences #2762210B ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TYRA-LEE CABELDU R E A S O N S F O R J U D G M E N T BEFORE JUSTICE OF THE PEACE J. ZIEGLER on November 29, 2016, at GUELPH, Ontario

APPEARANCES : P. Cassata Provincial Prosecutor Tyra-Lee Cabeldu & John Green In person & friend ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR JUDGMENT Page 1

Transcript Ordered: December 5, 2016 Transcript Completed: December 8, 2016 TUESDAY, NOVEMBER 29, 2016 R E A S O N S F O R J U D G M E N T ZIEGLER, J.P. – (Orally): First, I am going to say that I live in Ontario and I’m going to take judicial notice of the fact that a large number of plates on Ontario motor vehicles have plate covers that obstruct the “Yours to Discover”.

Second, I’m going to take note that in respect to the prosecution’s submission that we don’t have proof that these vehicles aren’t in for repair, and that they’re just sitting there with those plate covers on, and not driven with those plate covers on, which is the indication, is totally unrealistic and a superfluous argument because I have not seen a group of people with screw drivers putting plate covers on and off when they go to parking lots – not at the police station, not at this court house, not anywhere in the City of Guelph have I seen people taking off their plate covers which gives rise to my earlier statement that as a judicial officer I have noticed, and as an individual in the Province of Ontario, I’ve noticed a large number of people have plate covers and obstruct “Yours to Discover”.

As a judicial officer I have convicted people for obstructing the plate with tinted plate covers, but I’ve never had THIS issue put before me.

Looking at the Act, and I have the evidence of the officer that she gave this ticket having not given a speeding ticket, and the defendant’s testimony that the officer made a comment to her that the speed device was bouncing back and forth between her and a pickup truck in front of her, and then she noted the plate and charged her with having a plate - which is marked as exhibit – well we have Exhibit 1, the front of the plate, and Exhibit 2, the rear plate where none of the words “Yours to Discover” are visible, but the “Ontario”, name of the province, and the plate number and the validation tag is visible.

In my view the purpose of the

Section is to make sure that the validation tag and numbers of the plate are visible, and in fact, Section 13(3) says: The number plate shall not be obstructed by any device that prevents the entire number plates including the numbers from being accurately photographed using a photo-radar system. And 3.0.1: The number plates shall not be obstructed by any device that presents the entire umber plates including the numbers from being accurately photographed using a red light camera system. Certainly these plates can be photographed using a red-light camera system, and what’s important is the numbers, which in my view is the purpose of the section. However, the

Section does say in 13(2): Every number plate shall be kept free from dirt and obstruction and shall be affixed so that the entire plate, including the numbers, is plainly visible at all times - the entire plate - and the view of the number plate shall not be obscured or obstructed by spare tires, bumper

bars, any part of the vehicle, any attachments to the vehicle or the load carried. Now I don’t have any case law being presented to me. But in my view this

section is meant to cover Ontario, the numbers and the validation tag, and it’s rare, as I indicated before, to find anybody, in my experience, being charged with “Yours to Discover” being blocked by a dealer plate to be contrary to the Section; and if that were the case, there would be some case law to direct me on the matter. And in my view because the purpose of the

section is satisfied with the plate cover that was only obstructing “Yours to Discover”, I am dismissing the charge. ... SUPPLEMENTARY REASONS ATTACHED Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Jacoba Near (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Tyra-Lee CABELDU in the Ontario Court of Justice (Name of Case) (Name of Court) held at 59 Carden Street, Guelph (Court Address) taken from Recording Digital Recording , which has been certified in Form 1.

December 8 , 2016 (Date) (Signature of Authorized Person(s)) ZIEGLER, J.P. (Written) I am submitting these supplementary reasons in my decision regarding the charge against Tyla-Lee Cabeldu made November 29 th 2016, in the Guelph POA, in respect to the charge of obstruct plate under

Section 13 of the Highway Traffic Act . I left some important evidence and submissions in respect to that evidence unaddressed in my oral decision and realized immediately after trial that evidence formed part of my reasoning to dismiss the charge. The defendant, Miss Cabeldu, had a private friend assist her in her trial, Mr. John Edward Green. He is not a paralegal but examined the officer and made submissions for Miss Cabeldu, as well as provided his own evidence of plate covers based on pictures he took and observations he made regarding plate covers.

I permitted him to enter two pictures as an exhibit which he had taken of Miss Cabeldu’s plates, Exhibits 1 and 2, front and back of her plates with plate covers on them, as well as Exhibit #3 which is a picture of a plate on a reddish pickup truck showing the front plate with validation sticker on this pickup truck.

He testified that the truck was parked in the parking lot of the OPP Detachment and that he counted 12 out of 21 vehicles parked on November 3 rd , 2016 in one of the OPP parking lots in Wellington County had plate covers which covered the words “Yours to Discover” on their plates, which is similar to the obstruction alleged in the current case. The plate in Exhibit 3 on a vehicle parked in the OPP parking lot on the date and time Mr. Green took the picture, and testified that the plate cover was a cover created by law enforcement officers to raise money for charity.

The wording on the plate cover supports this testimony. The plate cover covers the words “Yours to Discover” in the same manner and appears to be similarly constructed and attached as the “offending” plate covers which are illustrated in Exhibits 1 and 2. Mr. Green made observations that many vehicles he observed in the OPP parking lot, and many other vehicles he observed since these charges were laid, travelling on streets in Guelph and surrounding area have similar plate covers covering the words “Yours to Discover” by dealership advertising or as in Exhibit 3 for other purposes. I found the evidence of Mr.

Green to be credible and relevant to the charge. Indeed I took judicial notice that plate covers are prevalent in Ontario covering the words “Yours to Discover” and I am unaware of having seen an obstruct charge of this nature in my court, except for tinted plate covers over the entire plate. The covers in question do not obstruct the numbers or the validation sticker, they only cover the words “Yours to Discover”.

No case law was cited to support the finding of guilt on similar charges and I note no evidence was presented that these plate covers which I found to be used commonly in the Province were discouraged by the police through enforcement initiatives similar to ride programs, or seatbelt enforcement, or stop sign initiatives, or hand held communication device enforcement. In arriving at my decision based on this evidence which I accept, I conclude that the intent of the

section was to prevent numbers and validation stickers from being obstructed. I note other subparagraphs in the

section address things like preventing obstruction for photo radar, red light camera enforcement and identification for toll roads, none of which are inhibited or obstructed by the plates in question. I concluded that the plate covers in this case do not interfere with the intent of the statute, and I find in addition that there is no cited authority to support that there is any enforcement of this

section based on its literal reading. If a higher Court finds that I have made an error in law, then I wish to put on record that with the same facts as presented to me in this case in the same or similar circumstances I would have suspended sentence. *************