R. v. Osman, 2016 ONCJ 85

CITATION: R. v. Osman , 2016 ONCJ 85 IN THE MATTER OF the Highway Traffic Act, R.S.O 1990, c. H.8 Between Her Majesty The Queen In Right Of Ontario prosecutor and Abdi OSMAN defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Trial held: November 3, 2015. Judgment released: February 12, 2016

Charges: (1) s. 53(1) H.T.A. – “driving while driver’s licence suspended” (2) s. 36 H.T.A. – “using driver’s licence from another jurisdiction while Ontario driver’s licence suspended” (3) s. 35(1)(e) – “possess more than one driver’s licence” (4) s. 78.1(1)) H.T.A. – “drive with hand-held communication device” Counsel: A. Drahovzal, prosecutor the defendant, unrepresented Cases Considered or Referred To: Empey v. Alberta (Transportation Safety Board), [2004] A.J. No. 1275 (A.Q.B.), Verville J. R. v. Lamanna, [2014] O.J. No. 4901 (O.C.J.), per D.A. Harris J. R. v. Montgomery, 2006 ONCJ 203 , [2006] O.J.

No. 2267 (O.C.J.), per MacDonnell, J. R. v. Miller, (ON CA), [1988] O.J. No. 253 (O.C.A.), per Dubin A.C.J.O., Martin and Tarnopolsky JJ.A. R. v. Quick, [2015] O.J. No. 5433 (O.C.J.), M.G. McLeod J. Statutes, Regulations, and Interprovincial Agreements Cited: Canadian Driver Licence Compact, Art. 1, 2.2, 3.2, 3.4, 4, 4.1, 4.1.2, 4.4, 5, 5.1, and 5.2. Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 31, 32(1), 32(7), 34, 35(1)(e), 36, 40(1), 40(2), 46, 52(1), 52(1)(b), 52(2), 53(1), and78.1(1). Reference Material Cited:

Segal, M. The Manual of Motor Vehicle Law, 3rd ed. (looseleaf) (Toronto, Ontario: Carswell, 1982). 2005 Auditor General of Ontario Report that was t abled in the Legislative Assembly of Ontario on December 6, 2005, “Driver Licencing” by The Ministry of Transportation, at pp. 127 to 128 of

Chapter 3,

section 3.06, online: Office of the Auditor General of Ontario website <<http://www.auditor.on.ca/en/reports_2005_en.htm >>. 2007 Auditor General of Ontario Report that was t abled in the Legislative Assembly of Ontario on December 11, 2007, “Driver Licencing Follow-up to VFM

Section 3.06, 2005 Annual Report for Ministry of Transportation, at pp. 369 to 370 of

Chapter 4,

section 4.06, online: Office of the Auditor General of Ontario website < < http://www.auditor.on.ca/en/reports_2007_en.htm >>. Exhibits entered: Exhibit "1" - certified document dated March 23, 2015, issued by the Office of the Registrar of Motor Vehicles for the Ministry of Transportation indicating that Abdi Osman, a male person, born on [date of birth removed for privacy ] had been notified by mail sent to 2560 St. Clair Ave. W., Toronto, Ontario, that effective February 12, 2010, his driver’s licence had been suspended under s. 46 of the Highway Traffic Act for not paying a fine or fines.

The Notice also indicated that Abdi Osman’s driver’s licence would remain suspended until all fines are paid and that a reinstatement fee of $150 would have to be paid in order for Abdi Osman to obtain a licence after the suspension ends (2 pages).

Exhibit "2" - copy of a document sent by e-mail to the defendant on June 29, 2015, authored by John Vu, Enquiry Analyst for the Licensing Administration and Support Office (Ministry of Transportation) located at 2680 Keel Street, Downsview, Ontario, in respect to Ontario Driver’s Licence # [ removed for privacy ] and in reply to the defendant’s letter dated June 16, 2015, about the status of the defendant’s driver’s licence.

The letter also informed the defendant that according to ministry computer records the defendant’s licence was cancelled on September 28, 2009, when it was exchanged for an Alberta driver’s licence (1 page). 1. BACKGROUND [ 1 ] When it involves driving offences, whatever happens out of province doesn’t necessarily stay out of province.

This is because information about convictions and unpaid fines for particular driving offences originating from Ontario are by agreement supposedly shared with other provinces and territories in Canada, so as to ensure that out-of-province motorists who commit driving offences in Ontario cannot escape their legal and financial responsibilities under the law of Ontario. The obligation to share information about motorists stems from the interprovincial and territorial agreement called the “Canadian Driver Licence Compact”, to which the province of Ontario is a party.

Moreover, the sharing of information by various provincial or territorial jurisdictions under this compact aims to keep highways safe by preventing bad drivers from renewing or obtaining driver’s licences.

It was also implemented to ensure that motorists residing in one province or territory who have been issued a driver’s licence from that jurisdiction will not leave their fines incurred in other jurisdictions outside of their province or territory of residence or jurisdiction where they are licenced from going unpaid, by having the provinces and territories who are signatories to the interprovincial compact agreeing to not issue or renew a driver’s licence to those motorists who shirk or malinger in paying off their fines, until such time that those fines have been paid. [ 2 ] In the present case, Abdi Osman (“the defendant”), a professional truck driver and a resident of Fort McMurray, Alberta, had been charged on November 26, 2014, with committing 4 Ontario Highway Traffic Act offences while operating his sister’s motor vehicle in the City of Mississauga .

When the defendant was stopped and charged with the 4 offences, the defendant had used and identified himself with a valid Alberta driver’s licence. However, even though the defendant had been driving with an Alberta driver’s licence, he had been charged nonetheless with the offence of “ driving while his Ontario driver’s licence had been suspended”.

This had been due to the defendant at one time having an Ontario driver’s licence when he was formerly a resident of Ontario, but who had given up that licence when he had moved to Alberta in 2009. [ 3 ] On that November 26th date , the defendant had been stopped and investigated after Peel Regional Police Officer Jamshidi had observed the defendant at 2:07 p.m. driving a motor vehicle on Meyerside Drive in the City of Mississauga while holding a hand-held communication device.

After completing his investigation, Officer Jamshidi then charged the defendant with committing the following 4 offences under the Highway Traffic Act , R.S.O. 1990, c. H.8 (“ H.T.A. ”): (1) driving while under suspension, contrary to s. 53 ; (2) driving under a driver’s licence issued by another jurisdiction while suspended in Ontario, contrary to s. 36 ; (3) unlawfully retaining in

his possession more than one driver’s licence, contrary to s. 35(1) (e); and (4) driving while using a hand-held communication device, contrary to s. 78.1(1) . [ 4 ] Coincidentally, what is peculiar about this case is that the defendant had exchanged his class “AZ” Ontario driver’s licence for an equivalent class 1 Alberta driver’s licence when he had become a resident of Alberta in 2009.

In order to obtain that Alberta licence, the defendant had to physically surrender his Ontario driver’s licence on September 28, 2009, as required by the Alberta Traffic Safety Act , to the Alberta Ministry responsible for licensing drivers in Alberta, before he could be legally issued an Alberta driver’s licence in exchange. When he had surrendered his Ontario licence for the Alberta licence, the Ontario Ministry of Transportation had also cancelled his Ontario driver’s licence on the same day of September 28, 2009 (see Exhibit #2).

Officer Jamshidi also did not find the defendant in the possession of an Ontario driver’s licence during the November 26th traffic stop, nor had the officer seized an Ontario licence at that time from the defendant. [ 5 ] In addition, the defendant had decided sometime prior to August of 2009 to move out west to Alberta to find work in the oil industry or in Alberta’s once booming economy. But, before his planned move, the defendant had been a resident of Toronto, Ontario, and had resided at the Toronto address of 2560 St. Clair Avenue West for 8 years.

In preparing for his move to Alberta, the defendant had testified that a month before he had moved away from Toronto to take up residence in Alberta he had gone to the courthouse on Queen Street in the City of Toronto, in order to inquire about and to pay off all his outstanding parking tickets and any outstanding fines. After he had purportedly paid off his parking tickets and outstanding fines, he said he had believed at this point that he had no demerit points or any outstanding fines; otherwise, as he contends, he would not have been able to get an Alberta driver’s licence.

Furthermore, in spite of the cancellation of the defendant’s Ontario drivers licence by Ontario’s Ministry of Transportation on September 28, 2009, the Registrar of Motor Vehicles for the Ministry of Transportation nonetheless suspended the defendant’s Ontario driver’s licence on February 12, 2010, for defaulting in the payment of fines (see Exhibit #1). [ 6 ] However, once he had been told about the suspension, the defendant testified that he had looked into it and discovered that the unpaid fines had been related to 2 tickets he had received in 2007 and 2008, in which the tickets’ fines had together totalled approximately $267.

He then said he had paid off those fines and the $150 reinstatement fee in January of 2015, so that his Ontario licence would no longer be under suspension and to also prevent being charged in the future with the offence of driving while under suspension every time he was in Ontario operating a motor vehicle.

In addition, the defendant surmises that he may have been convicted of those two tickets after he had already been residing in Alberta. [ 7 ] In his defence to the three charges related to the suspension of his Ontario driver’s licence, which are set in in counts #1, #2, and #3, the defendant contends that he had not received actual notice of the suspension, nor did he have knowledge of or been made aware that his Ontario driver’s licence had been suspended, since the suspension had come into effect on February 12, 2010, after he had already been living in Alberta and using an Alberta driver's licence, and after he had already surrendered his Ontario licence to the Alberta Ministry responsible for issuing driver's licences, as well as after his Ontario licence had already been cancelled by the Ontario Ministry on September 28, 2009.

Furthermore, the defendant contends that he had only become aware of his already-cancelled Ontario driver's licence being suspended when stopped and informed of such by Officer Jamshidi on November 26, 2014.

The defendant also contends that he had no knowledge of or been made aware that his Ontario licence had been suspended effective February 12, 2010, since he had been able to renew his Alberta driver’s licence 3 to 4 times without any problem after he had obtained his Alberta licence and without being told by the Alberta Ministry that he could not renew his Alberta licence because his Ontario licence had been suspended for unpaid fines.

And, even though the defendant had not arranged with Canada Post to have his mail forwarded or redirected to another address before he had moved to Alberta, nor had he provided the Ontario Ministry of Transportation with his new Alberta address, the defendant contends that the Ontario Ministry would or should have received his new Alberta address from the Alberta Ministry when he had surrendered his Ontario driver’s licence to them in exchange for the Alberta driver’s licence back in 2009. [ 8 ] In addition, the defendant submits that he should not be found guilty of committing either the offence in count #1 of driving while under suspension or the offence in count #2 of driving with a licence from another jurisdiction while his Ontario driver's licence had been suspended, since he had not been notified or been aware that his Ontario licence had been suspended, as he had honestly believed that he had paid off all his parking tickets and outstanding fines before he left Ontario and because he had been able to obtain and renew his Alberta driver’s licence 3 or 4 times after obtaining his Alberta licence, and because his Ontario licence had been cancelled when he had surrendered it in exchange for that Alberta licence.

And, as for the charge in count #3 for the offence of unlawfully retaining in his possession more than one licence, the defendant argues that he should be also acquitted of this charge because he did not physically have more than one driver’s licence on or with him when he had been stopped by Officer Jamshidi, nor had Officer Jamshidi testified to finding the defendant physically in the possession of an Ontario licence, since his Ontario driver's licence had already been surrendered by the defendant on September 28, 2009, to the Alberta Ministry and then cancelled by the Ontario Ministry of Transportation on the same day. [ 9 ] On the other hand, the prosecution contends that the defendant should be found guilty of committing the drive while under suspension offence in count #1, as the Ontario Ministry of Transportation had complied with the requirements of the H.T.A. in providing notice of the suspension to the defendant by mailing the Notice of Suspension on February 12, 2010, to the defendant’s last known address in Ontario, even though it had been mailed after the date the defendant had already left the province in 2009 to reside in Alberta.

In addition, the prosecution submits that the defendant had only testified to paying off his outstanding parking tickets and fines prior to

leaving Ontario, but not that he had made sure that he had no outstanding H.T.A. tickets or charges to still deal with or that there were no H.T.A. tickets or charges still in the system that had not been dealt with by him before he left Ontario. Moreover, the prosecution submits that it had been the defendant’s responsibility to ensure that all his outstanding H.T.A. tickets or charges were properly dealt with, whether he had resided or not resided in another province.

In addition, the prosecution contends there is no evidence that he had indeed done anything with those H.T.A. tickets or charges that had led to the fines in question going unpaid, and because of his negligence in not dealing with those particular H.T.A. tickets or charges properly, he had been convicted and fined. [ 10 ] Moreover, in reply to the defendant’s assertion that the Ontario Ministry of Transportation would or should have had the defendant’s Alberta address, the prosecution submits that there is no evidence that the Ontario Ministry did actually have the defendant’s new address in Alberta after the defendant’s Ontario driver’s licence had been exchanged for an Alberta one, since the Ontario Ministry had mailed the Notice of Suspension on February 12, 2010, to the defendant’s last known address in Toronto and not to his new address in Alberta. [ 11 ] Furthermore, the prosecution also submits that the drive while under suspension charge contained in count #1 can exist without the defendant having an actual Ontario driver’s licence.

In addition, the prosecution argues that if the suspension of the defendant’s Ontario driver’s licence is valid and the defendant had been aware or is deemed to be aware of the suspension by virtue of s. 52(2) of the H.T.A. , then the charges in both count #1 and count #2, respectively, of driving while under suspension and for driving with a driver’s licence from another jurisdiction when his Ontario driver’s licence is suspended, will have been proven by the prosecution beyond a reasonable doubt.

However, in respect to count #3, the prosecution conceded that it had not proven the charge that the defendant unlawfully retained in his possession more than one licence, since proving that offence required proof from the prosecution that the defendant had two driver’s licences physically in his possession at the relevant time, which the prosecution admits they had failed to do. [ 12 ] Ergo, the key issues to be decided in determining whether the defendant is guilty of committing the offences set out in counts #1 and #2, are firstly, whether the defendant had taken all reasonable care in the circumstance to ensure that his H.T.A. tickets or charges, which led to the defaulted fines in question, had been properly and reasonably dealt with by the defendant.

And secondly, whether the defendant can rely on the Canadian Driver Licence Compact to support his contention that he had no notice or knowledge, nor that he had been made aware that his Ontario driver’s licence had been suspended for unpaid fines until informed of such by Officer Jamshidi on November 26, 2014, especially since the defendant had been able to renew his Alberta driver’s licence several times during the period that his Ontario licence had been under suspension.

And thirdly, whether the defendant should be found at fault for not receiving the Notice of Suspension from the Ontario Ministry, since the defendant contends that the Ontario Ministry would have known about his new address in Alberta from the Alberta Ministry, after he had exchanged his Ontario license for the Alberta licence, so that the Ontario Ministry could have sent the Notice of Suspension to him in Alberta. [ 13 ] The trial of the defendant’s 4 charges had been held on November 3, 2015, in which the defendant had represented himself at the trial.

At the arraignment of the 4 charges, the defendant had entered not guilty pleas on counts #1, #2, and #3 of the

Part III information, which were for driving while under suspension, of using a driver’s licence from another jurisdiction when his Ontario driver’s licence was under suspension, and for unlawfully retaining in his possession more than one driver’s licence. However, the defendant had entered a guilty plea on count #4 of driving with a hand-held communication device, in which sentencing on that offence would be held after judgment is given on the three charges in which the defendant had entered not guilty pleas. In addition, only two witnesses had testified in the trial:

(1) Officer Jamshidi , the investigating officer, and (2) the defendant . After closing submissions were made, judgment was reserved and the matter adjourned to February 12, 2016, for judgment. [ 14 ] These, therefore, are the written reasons for judgment: 2. THE CHARGES [ 15 ] The defendant has been charged under a

Part III information that was sworn on December 10, 2014, with committing the following 4 H.T.A. offences: Abdi OSMAN , of 2560 St. Clair Avenue West, Toronto, Ontario, M6N 1L7 on or about the 26th day of November, 2014 at the City of Mississauga in the Central West Region did commit the offence of: (1) at approximately 2:07 p.m. did unlawfully operate a motor vehicle licence number BTMJ 097 on a highway, namely on Meyerside

Drive, when his driver’s licence was suspended by operation of the Highway Traffic Act contrary to the Highway Traffic Act Section 53 (2) AND FURTHER THAT Abdi OSMAN on or about the 26th day of November in the year 2014, at the City of Mississauga in the Central West Region, did unlawfully drive a motor vehicle on Meyerside Drive, at approximately 2:07 p.m., under a driver’s licence issued by another jurisdiction while suspended in Ontario by operation of the Highway Traffic Act contrary to the Highway Traffic Act Section 36 (3) AND FURTHER THAT Abdi OSMAN on or about the 26th day of November in the year 2014, at the City of Mississauga in the Central West Region, did unlawfully retain in his possession more than one driver’s licence contrary to the Highway Traffic Act Section 35(1)(e).

(4) AND FURTHER THAT Abdi OSMAN on or about the 26th day of November in the year 2014, at the City of Mississauga in the Central West Region, did unlawfully operate a motor vehicle while using a hand-held wireless communications device to wit: a cell phone, contrary to the Highway Traffic Act

Section 78.1(1). 3. ANALYSIS AND DECISION (

A) Has The Prosecution Proven That The Defendant Has Committed The 4 H.T.A. Charges Beyond A Reasonable Doubt? [ 16 ] First of all, there is no dispute by the defendant that he had been operating a motor vehicle on Meyerside Drive on November 26, 2014, at 2:07 p.m. in the City of Mississauga when Officer Jamshidi had observed him holding a hand-held communication device.

In fact, the defendant admits to driving his sister’s motor vehicle while he was holding a cellphone, but disputes receiving actual notice of the suspension, knowing about the suspension, or being made aware of the suspension of his Ontario driver’s licence for unpaid fines, until he was stopped and informed on November 26th by Officer Jamshidi that his Ontario licence had been under suspension. [ 17 ] On the other hand, the defendant submits that there is no evidence that he had been in the possession physically of an Ontario driver's licence when he had been stopped and investigated by Officer Jamshidi, and that the Ontario Ministry would have had his Alberta address from the Alberta Ministry after the exchange of driver's licences and the cancellation of his Ontario licence on September 28, 2009.

(1) The Defendant Had Felt Threatened by Officer Jamshidi [ 18 ] However, before continuing with the determination on whether the defendant has committed these 4 H.T.A. offences beyond a reasonable doubt, a collateral issue that could undermine the prosecution’s case has to be considered first. On this collateral issue, the defendant had testified in the trial proper that he had felt threatened by Officer Jamshidi at some point during the two hours that the officer had stopped and kept the defendant at the location of the traffic stop. Officer Jamshidi’s testimony also indicated that the defendant had been for the most

part cooperative during the traffic stop and investigation, but at some point during their encounter, the defendant became uncooperative. In addition, the issue of whether any threat had been made by Officer Jamshidi to the defendant had been initially raised by the prosecution during the voir dire , which had been held to determine the voluntariness of any utterance or statement made by the defendant to Officer Jamshidi during the traffic stop and investigation.

After the evidence given in the voir dire had been considered, it had been determined that the defendant’s utterance or statements had been given voluntarily to Officer Jamshidi beyond a reasonable doubt.

However, the court had also informed and explained to the defendant, who was self-represented, that if the circumstances warranted it, the issue of voluntariness could be reconsidered after all the evidence and testimony of the defendant in the trial proper had been heard. [ 19 ] On this reconsideration question, no evidence had been presented in the trial proper that would have caused reconsidering the issue of the voluntariness of the defendant’s utterances or statements, although the defendant had testified in the trial proper that he felt threatened by Officer Jamshidi after Officer Jamshidi had informed and warned the defendant about the consequences of being untruthful during Officer Jamshidi’s investigation.

Because Officer Jamshidi had felt the defendant was not being straightforward with him, Officer Jamshidi said he had warned the defendant about the possibility of being charged for obstructing justice if the defendant gave untruthful answers during Officer’s questioning of the defendant. However, after the warning the defendant decided to remain silent and not answer any more of Officer Jamshidi’s questions. This feeling of being threatened, which had been caused by Officer Jamshidi’s warning, did not cause the defendant to involuntarily provide inculpatory statements to Officer Jamshidi; rather, it caused the

defendant to stop making any more statements to Officer Jamshidi. [ 20 ] Moreover, the testimony by the defendant of feeling threatened by Officer Jamshidi appeared to have only been made by the defendant in the trial proper in the hope of having the case dismissed, and it had only became an issue after the court’s comment made in the voir dire that it would reconsider the issue of the voluntariness of the defendant’s utterances and statements if the circumstances warranted reconsideration after the evidence in the trial proper was completed and after the defendant had the opportunity to give complete testimony about the charges and the circumstances in respect to the traffic stop and investigation, since the line of inquiry in the voir dire had been limited in scope. [ 21 ] Accordingly, despite the defendant feeling threatened after Officer Jamshidi’s warning about the consequences from being untruthful, there has been no evidence provided of any specific acts or words from Officer Jamshidi aimed at the defendant that would establish Officer Jamshidi had threatened the defendant during the traffic stop and investigation, which would raise any Charter concerns.

Therefore, the issue of the voluntariness of the defendant’s utterances or statements given to Officer Jamshidi will not be reconsidered.

(2) Count #1: “Driving While Driver’s Licence Suspended” -- S. 53(1) H.T.A. [ 22 ] For count #1, the defendant has been charged with driving a motor vehicle on a highway on November 26, 2014, while his Ontario driver’s licence had been suspended by operation of the Highway Traffic Act , which is contrary to s. 53(1) of the H.T.A.

If convicted of committing this offence the defendant is liable for a minimum fine of $1000 for a first conviction and the suspension of his driver's licence for a period of six months [ emphasis is mine below ]: Driving while driver’s licence suspended 53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable , (

a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and (

b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000, or to imprisonment for a term of not more than six months, or to both. Same

(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

section 41 or 42, even if it is under suspension at the same time for any other reason, is guilty of an offence and on conviction is liable, (

a) for a first offence, to a fine of not less than $5,000 and not more than $25,000; and (

b) for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000, or to imprisonment for a term of not more than six months, or to both. Subsequent offence

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1)(b). Same

(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1)(b). Licence suspended

(3) The driver’s licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto. [ 23 ] Furthermore, it should be emphasized that driving is a privilege in Ontario and is so expressly stated by s. 31 of the H.T.A. Therefore, in order to protect the public from bad drivers the Ontario Ministry of Transportation is legislated to grant this privilege to drive on a public highway to only those persons who demonstrate that they are likely to drive safely [ emphasis is mine below ]: Driving a privilege 31. The purpose of this

Part is to protect the public by ensuring that, (

a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely ; and (

b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions. [ 24 ] In addition, s. 32(1) of the H.T.A. only permits individuals who hold a valid driver’s licence issued to them under the provisions of the H.T.A. to drive a motor vehicle on a highway in Ontario: Driver’s licence 32(1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him or her under this Act. [ 25 ] However, s. 34 of the H.T.A. provides an exception to the requirement of having a valid Ontario driver's licence before someone can legally operate a motor vehicle on an Ontario highway under s. 32, where the person has a driver's licence from another province or territory in Canada, which is still valid and not suspended.

As such, an out-of-province licenced motorist is not required to first obtain an Ontario driver's licence before they are legally permitted to drive in Ontario, as long as they have not become permanent residents of Ontario [ emphasis is mine below ]: Exemption as to non-residents, licensing requirements 34(1)

Section 32 and any regulation made thereunder do not apply to any person who is,

(

a) a resident of any other province of Canada, who is at least sixteen years of age and has complied with the law of the province in which he or she resides as to the drivers of motor vehicles; or (

b) a resident of any other country or state, (

i) who is at least sixteen years of age and is the holder of a valid International Driver’s Permit, or (ii) who is at least sixteen years of age and has not resided in Ontario for more than three months in any one year and has complied with the law of the country or state in which he or she resides as to the licensing of drivers of motor vehicles. Exemption of new residents

(2) Section 32 and any regulation made thereunder do not apply to a person for sixty days after he or she has become a resident of Ontario if during such period he or she holds a subsisting driver’s licence in accordance with the laws of the province, country or state of which he or she was a resident immediately before becoming a resident of Ontario . [ 26 ] On the other hand, by virtue of s. 36 of the H.T.A. , if an individual’s Ontario driver's licence is under suspension then they are not permitted to drive in Ontario using a driver's licence issued by another jurisdiction: Driving prohibited while licence suspended 36.

A person whose driver’s licence or privilege to drive a motor vehicle in Ontario has been suspended shall not drive a motor vehicle or street car in Ontario under a driver’s licence or permit issued by any other jurisdiction during the suspension. [ 27 ] Moreover, s. 46 of the H.T.A. provides the basis for the Registrar of Motor Vehicles for the Ontario Ministry of Transportation to suspend a motorist’s Ontario driver’s licence when they do not pay their fine or fines, which have been imposed for a conviction under the H.T.A. and its regulations, or for a conviction under statutes that are listed in the Schedule, such as the Compulsory Automobile Insurance Act [ emphasis is mine below ]: Defaulted fine 46(1) This

section applies if a fine is imposed on conviction for an offence and the offence is an offence , (

a) under this Act or the regulations ; (

b) under any other Act listed in the

Schedule to this

section or under the regulations made under such

an Act; (

c) under clause 17 (1) (

a) or subsection 24 (1) of the Fish and Wildlife Conservation Act, 1997; (

d) under subsection 32 (1) of the Liquor Licence Act; or

(

e) that was committed with a motor vehicle under

section 249 , 249.1 , 249.2 , 249.3 , 249.4 , 252 , 253 , 254 , 255 or 259 of the Criminal Code (Canada) . Order or direction

(2) If the payment of a fine imposed on conviction for an offence is in default, an order or direction may be made under

section 69 of the Provincial Offences Act directing that the convicted person’s driver’s licence be suspended and that no driver’s licence be issued to him or her until the fine is paid . Suspension by Registrar

(3) On being informed of an outstanding order or direction referred to in subsection (2), the Registrar shall suspend the person’s driver’s licence if it has not already been suspended under another order or direction referred to in subsection (2). Reinstatement

(4) On being informed that the fine and any applicable administrative fee for reinstatement of the person’s driver’s licence have been paid, the Registrar shall reinstate the licence, unless he or she has also been informed that, (

a) another order or direction referred to in subsection (2) is outstanding; (

b) the licence is suspended under any other order or direction or under another statute; (

c) interest charged or a penalty imposed under subsection 5 (2) has not been paid; or (

d) an applicable prescribed administrative fee for handling a dishonoured cheque has not been paid. Regulations

(5) The Lieutenant Governor in Council may make regulations prescribing forms and procedures and respecting any matter considered necessary or advisable to carry out effectively the intent and purpose of this section.

SCHEDULE Compulsory Automobile Insurance Act Dangerous Goods Transportation Act Motorized Snow Vehicles Act Off-Road Vehicles Act Public Vehicles Act [ 28 ] In addition, in the situation where an individual has had their Ontario driver’s licence suspended, then according to s. 32(7) of the H.T.A. , it will not be legally valid for purposes of s. 32(1) until the prescribed administrative fee for its reinstatement has been paid:

Contingent validity 32(7) Where a driver’s licence issued under subsection (5) has been suspended, it is not valid for purposes of subsection (1) until the prescribed administrative fee for its reinstatement has been paid. (

a) Can the Ministry of Transportation suspend a driver's licence that it had cancelled earlier? [ 29 ] To prove that the defendant’s Ontario driver's licence had been suspended, the prosecution entered a certified document from the Registrar of Motor Vehicles for the Ontario Ministry of Transportation, which states that the defendant’s Ontario driver’s licence had been suspended effective February 12, 2010, for unpaid fines (Exhibit #1).

However, as evidenced by the Ministry of Transportation e- mail that had been received by the defendant and entered as Exhibit #2, the defendant’s Ontario driver's licence had already been cancelled by the Ontario Ministry on September 28, 2009, when the defendant had surrendered and exchanged his licence for an Alberta driver's licence.

As such, is there a statutory provision in the H.T.A. that would cover this situation of the Ontario Ministry suspending someone’s driver's licence when the Ministry had already canceled that person’s licence? [ 30 ] Although it may seem illogical that a driver’s licence, which had already been cancelled, could still be suspended, there does not appear to be anything in law that would prevent the Ontario Ministry of Transportation from doing such. [ 31 ] To begin with, the defendant’s Ontario driver's licence had been cancelled by the Ontario Ministry on account of the defendant surrendering his Ontario licence to the Alberta Ministry and exchanging it for an Alberta license on September 28, 2009.

Most provincial jurisdictions in Canada require that a motorist surrender their driver's licence issued by their old province of residence to the Ministry of the new province of residence before the Ministry of the new province of residence will issue that motorist a driver’s licence for that new province of residence. Moreover, most provincial jurisdictions require a person who moves to their province from another province to obtain a driver's licence from that new province within a certain time of taking residence in that new province, if they wish to continue driving legally in that new province of residence.

Furthermore, most provincial jurisdictions also prohibit someone from applying for, securing, retaining, or being in the possession of two driver's licences from two different jurisdictions in Canada. [ 32 ] In addition, there is also the prohibition contained in s. 36 of Ontario’s H.T.A. which specifically bars someone from being able to drive in Ontario using a driver's licence from another jurisdiction while their driver's licence has been suspended or while their privilege to drive in Ontario has been suspended, which confirms the notion that someone can have their privilege to drive in Ontario suspended without that person having a valid driver's licence.

In other words, even though the defendant’s driver's licence had already been cancelled because the defendant had surrendered his Ontario licence in exchange for an Alberta licence in 2009, the defendant’s privilege to drive in Ontario can still be suspended without the defendant having a valid Ontario driver’s licence at the time of the suspension [ emphasis is mine below ]: Driving prohibited while licence suspended 36.

A person whose driver’s licence or privilege to drive a motor vehicle in Ontario has been suspended shall not drive a motor vehicle or street car in Ontario under a driver’s licence or permit issued by any other jurisdiction during the suspension . [ 33 ] In addition, the H.T.A. already allows the driver's licence of someone, who does not have a valid driver's licence because it is already under suspension, to be suspended for a further period of suspension.

This is found in s. 53(3) of the H.T.A. , which allows the driver’s licence of a person who is convicted of driving while under suspension for a traffic or Criminal Code offence to be suspended for a period of six months in addition to any other period for which the driver's licence is already under suspension and to also be suspended consecutively to any other existing suspension.

Hence, this particular provision under the H.T.A. explicitly shows that a motorist, who did not have a valid driver’s licence because it was already under suspension, can still have their driver's licence suspended for another period of 6 months. [ 34 ] It is also noteworthy that the definition of “home jurisdiction” contained in

Article 1 of the Canadian Driver Licence Compact in conjunction with

Article 2.2 of the Compact, has made specific reference to the situation where a driver, who had never been issued a

driver's licence by any member jurisdiction to that Compact, has been convicted of committing a traffic offence in one of the member jurisdictions. In that situation, the “home jurisdiction” for the unlicenced driver is defined as the province or territory where that unlicenced driver resides in. Furthermore, the Compact also empowers that province, in which the unlicenced driver resides, from not having to issue a driver’s licence to that unlicenced driver when that unlicenced driver’s right to obtain or hold a driver's licence has been suspended, cancelled, or revoked by the province where they once had a driver's licence or where they had once resided. In addition,

Article 2.2 recognizes the ability of a province to suspend someone’s privilege of driving in that province, even though they had never obtained or been issued a valid driver's licence [ emphasis is mine below ]: For the purposes of this Compact: … “ Home jurisdiction” means : the jurisdiction that issues a driver’s licence and has the authority to suspend, cancel or revoke it, or the jurisdiction of residence in the case of a person who does not hold a driver’s licence . “Jurisdiction of origin” means: the jurisdiction which has issued the driver’s licence that the driver wants to exchange for a licence of the jurisdiction to which the driver has moved. … 2.2 A party should not issue a driver's licence to the applicant if : — The applicant’s right to obtain or to hold a driver's licence : (

a) is suspended, cancelled or revoked in the applicant’s jurisdiction of origin because of conviction(

s) for an offences(

s) listed in

Article 4; or (

b) would be suspended, cancelled or revoked in the home jurisdiction had the applicant’s record of convictions been the result of the equivalent offences committed in that jurisdiction, and its sanctions applied thereto ; — The applicant is the holder of a valid driver's licence issued in another jurisdiction unless the applicant surrenders such licence. [ 35 ] And, even though there is no provision in the H.T.A. that would specifically deal with this particular situation of suspending a driver's licence, which had already been cancelled, there would have to be, for practical reasons, a system established by the Ontario Ministry to keep track of driving and traffic offences committed by individuals without valid driver’s licences issued by Ontario and their resulting fines or disposition, as well as for out-of-province drivers who do not possess valid driver's licence or who do have a valid driver's licence issued to them by their home province, otherwise unlicensed drivers or drivers from out-of province could drive with impunity or without consequence in Ontario. [ 36 ] Hence, the Ontario Ministry of Transportation would have to have a system of recording information in regards to who has been convicted of committing a driving or traffic offence in Ontario, as well as for the fines and dispositions in respect to those convictions.

Moreover, this system of recording information in respect to driving or traffic offences committed in Ontario would have to include records of people who reside in Ontario, but who had never obtained an Ontario driver's licence from the Ontario Ministry, as well as for people who reside out-of-province and who hold a valid driver's licence from that outside jurisdiction, or who have never been licenced.

It seems, therefore, that the most practical and logical method in recording the convictions for driving or traffic offences committed by unlicenced drivers who reside in Ontario and for ones who reside outside Ontario that either hold a valid driver's licence or who do not have a driver's licence, is simply to create a file in the name of the person and to assign an Ontario driver's licence number for those without driver's licence and for those who reside out-of-province.

In this way, the Ontario Ministry would be able to keep a record of and also create a database of information in respect to those specific driving and traffic offences committed in Ontario, in order to keep track of the disposition of the charges and fines associated with any convictions, and to share that information with other provinces and territories in Canada who are members of the Canadian Driver Licence Compact.

[37] And, if an out-of province driver’s fines are not paid then the Ontario Ministry would suspend that that out-of province driver’sprivilege to drive in Ontario by recording that driving suspension under the assigned Ontario driver’s licence number and name of thatout-of-province driver, and to also forward that information about the driving conviction and fine to the province that issued the licenceto that out-of-province driver or other province where the out-of-province driver resides if the driver does not hold a valid driver'slicence, but only if the Ontario Ministry is obligated to do so under the Canadian Driver Licence Compact. [38] As such, for someone like the defendant, who had previously had an Ontario driver's licence, and who is presently using anAlberta driver's licence, and is then convicted of a driving or traffic offence in Ontario, there would already be an Ontario Ministry fileand existing Ontario driver's licence number for the defendant, so that the traffic ticket issued on that out-of-province driver's licencecould then be recorded in the driver’s name under his pre-existing file and Ontario driver's licence number, in order for the Ministry tokeep track of the ticket and any fines associated with it. [39] Consequently, since the Ontario Ministry of Transportation must have the power and ability to suspend the privilege of driving inOntario to unlicenced drivers, in order to protect the public from bad drivers, then in order for the Ministry to facilitate this measure,unlicenced drivers would have to have a Ministry file created in their name and an Ontario driver's licence number assigned to them forkeeping track of the unlicenced driver’s record of driving, convictions, and fines.

Therefore, if the Ontario Ministry has the implied andnecessary power to suspend the driving privilege of an unlicenced driver, then the Ontario Ministry ought to also be able to suspend thedefendant’s privilege to drive in Ontario, even though the defendant’s Ontario driver's licence had already been cancelled, by suspendingthe previously assigned Ontario driver's licence number assigned to the defendant. (

b) What category of offence is the drive while under suspension offence? [40] As for the type of regulatory offence and the analysis to use, the offence of “drive while under suspension” has been classified asa strict liability offence by MacDonnell J. (as he was then) in R. v. Montgomery, 2006 ONCJ 203 , [2006] O.J. No. 2267(O.C.J.). Therefore, as MacDonnell J. had succinctly explained at para. 11 in Montgomery, the analysis for determining whether theprosecution has proven that the defendant is guilty beyond a reasonable doubt of committing this particular offence involves a two-stageinquiry.

For the first stage of the inquiry, MacDonnell J. held that the prosecution must prove that the defendant’s Ontario driver’slicence had been under suspension and that the defendant had been operating a motor vehicle on an Ontario highway at the relevant timeand place while his Ontario licence had been suspended.

And, if that onus has been met, then the prosecution will have met its burden inproving the actus reus of the offence beyond a reasonable doubt and the burden will then shift to the defendant to prove the defence ofdue diligence on a balance of probabilities, if the defendant does not wish to be found guilty of committing that offence.

However,MacDonnell J. also emphasized that the prosecution is not required to prove that the defendant had knowledge of the suspension, but thatin most cases it will attempt to do so with the aid of s. 52(2) of the H.T.A. [emphasis is mine below]: Driving while under suspension contrary to s. 53 of the Highway Traffic Act is a strict liability offence within the meaning of theclassification scheme described by the Supreme Court of Canada in R. v. City of Sault Ste. Marie, (SCC), [1978], 2S.C.R. 1299, 40 C.C.C. (2d) 353: see R. v. Middlebrook; R. v. Miller; R. v. Laporta (1988), (ON CA), 5 M.V.R. (2d)236 (Ont.

C.A.); R. v. MacDougall, (SCC), [1982] 2 S.C.R. 605; R. v. Lowe (1991), (NS CA), 29M.V.R. (2d) 265 (N.S.C.A.). Because it is a strict liability offence, the burden on the Crown is discharged upon proof of the actus reus ofthe offence, namely (

i) that the defendant’s license to drive was suspended, and (ii) that while it was suspended, he drove. The Crowndoes not have to prove knowledge of the suspension, although in most cases it will attempt to do so with the aid of s. 52(2) of theHighway Traffic Act. (

c) The Ontario Ministry of Transportation Is Required Under The H.T.A. To Notify The Defendant Of The Suspension Of HisDriver's Licence [41] By virtue of s. 52(1) of the H.T.A., the Ontario Ministry of Transportation is required to notify the defendant of the suspension ofhis Ontario driver's licence.

This requirement of providing notice to the defendant is sufficiently given if the notice is deliveredpersonally to the defendant or if the notice is sent by ordinary mail addressed to the defendant at the latest current address of the personappearing on the records of the Ministry [emphasis is mine below]: Service of notice of licence suspension 52(1). Where a person’s driver’s licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(

a) in the case of a suspension under

section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry; (

b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry . (

i) The Notice of Suspension sent to the defendant on Feb. 12, 2010 (Exhibit #1) [ 42 ] The prosecution provided a certified document issued by the Registrar of Motor Vehicles for the Ontario Ministry of Transportation, which has been entered as Exhibit #1 and which is produced below, as evidence that the Deputy Registrar of Motor Vehicles had notified the defendant by ordinary mail sent out on February 12, 2010, that the defendant’s driver’s licence had been suspended effective February 12, 2010, for unpaid fines. The notice had been sent to the defendant’s last known address of 2560 St. Clair Ave. W., Toronto, Ontario, as required under s. 52(1) (

b) of the H.T.A. (see Exhibit 1): [Page 1] I hereby certify from the records of the Ministry of Transportation required to be kept under the Highway Traffic Act that the drivers licence of ABDI OSMAN, a male person, born the [date of birth removed for privacy], whose latest address is 2560 St. Clair Ave. W, Toronto, Ontario was suspended effective the 12 th day of February 2010 pursuant to a Court Order under the Highway Traffic Act for default of payment of fine.

I further certify that a notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 12 th day of February 2010 to ABDI OSMAN at 2560 St. Clair Ave. W, Toronto, Ontario which then was the latest address on the records of the Ministry and that the said suspension was in effect on the 26th day of November 2014. I further certify that the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation. Given under my hand and the seal of the Ministry of Transportation.

This 23 rd day of March 2015. Heidi Francis Registrar of Motor Vehicles ……………………………………………….. [Page 2] Notice of Suspension of Driver’s Licence Tel. (416) 235-2999 1-800-387-3445

Date 2010/02/12 Reference of driver’s licence number [ removed for privacy ] Date of birth [ removed for privacy ] Sex MALE Suspension No. 0037748 OSMAN, ABDI 2560 ST CLAIR AVE W TORONTO ONT. M6N 1L7 YOUR DRIVER LICENCE IS SUSPENDED UNDER

SECTION 46 OF THE HIGHWAY TRAFFIC ACT FOR NOT PAYING A FINE OR FINES EFFECTIVE FEB. 12, 2010. DRIVER’S LICENCE SUSPENSIONS WILL ALSO AFFECT YOUR COMBINED PHOTO CARD, KNOWN AS AN ENHANCED DRIVER’S LICENCE (EDL), IF YOU ARE AN EDL HOLDER YOUR LICENCE WILL REMAIN SUSPENDED UNTIL ALL FINES ARE PAID. FINE PAYMENTS MUST BE MADE TO A PROVINCIAL OFFENCES ACT COURT OFFICE. CALL YOUR LOCAL PROVINCIAL OFFENCES ACT COURT OFFICE FOR FINES INFORMATION AND PAYMENT LOCATIONS. NOTE: AFTER FINES PAYMENT IS RECEIVED A MINMIMUM OF 4 DAYS IS NEEDED TO PROCESS REINSTATEMENT OF YOUR

LICENCE. REINSTATEMENT FEE OR MONETARY PENALTY: DUE TO YOUR SUSPENSION(S), YOU MUST PAY A $150 FEE OR PENALTY TO OBTAIN A LICENCE AFTER YOUR SUSPENSION(

S) ENDS.

PLEASE SEE THE BACK OF THIS FORM ON HOW TO PAY. 02839632 JUDY TAGGART DEPUTY REGISTRAR OF MOTOR VEHICLES (ii) The Defendant Is Deemed To Have Received The Notice of Suspension On The 7th day After It Was Mailed Out [43] And, according to s. 52(2) of the H.T.A., the defendant is deemed to have received notice of the suspension on the seventh dayafter the Ontario Ministry of Transportation mails the notice to the defendant’s last known address, unless the defendant establishes thathe, acting in good faith, did not receive the notice through absence, accident, illness or other cause beyond his or her control [emphasis ismine below]: Deemed date of service 52(2) Notice sent by registered mail under clause (1)(

a) or by mail under clause (1)(

b) shall be deemed to have been given on theseventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, throughabsence, accident, illness or other cause beyond his or her control, receive the notice. [44] In respect to service of the suspension, Exhibit #1 proves that the Registrar of Motor Vehicles for the Ontario Ministry ofTransportation had complied with s. 52(1)(

b) of the H.T.A. by mailing the Notice of Suspension on February 12, 2010, to thedefendant’s latest current address appearing on the records of the Ministry, which had been 2560 St. Clair Ave.

W. in the City ofToronto. [45] Accordingly, the prosecution has fulfilled the regulatory requirements of proving that the defendant had been given notice bymail that his Ontario driver’s had been suspended, which notice was deemed to have been given to the defendant on the seventh dayfollowing the notice being mailed out on February 12, 2010. (iii) The Defendant Has The Burden On A Balance Of Probabilities To Prove That He, Acting in Good Faith, Did Not ReceiveThe Notice of Suspension Because of Absence, Accident, Illness Or Other Cause Beyond His Control [46] Moreover, after finding and adopting the holding in R. v.

Montgomery, 2006 ONCJ 203 , [2006] O.J. No. 2267 (O.C.J.)as to what the law is for the offence of drive while under suspension, McLeod J. reiterated in R. v. Quick, [2015] O.J. No. 5433 (O.C.J.),at paras. 6 and 7, that once the prosecution has proven the actus reus of the offence, namely (1) that the defendant’s Ontario driver'slicence was under suspension and (2) that while the defendant’s Ontario driver's licence was under suspension he drove a motor vehicleon an Ontario highway, then the burden shifts to the defendant to prove he was not at fault on a balance of probabilities [emphasis ismine below]:

… Nonetheless the law is clear. In R. v. Montgomery 2006 ONCJ 203 , [2006] O.J. No. 2267, Justice MacDonnell clarified thatbecause this offence is a strict liability offence "the burden on the Crown is discharged upon proof of the actus reus of the offence,namely (

i) that the defendant's license to drive was suspended, and (ii) that while it was suspended, he drove". He went on to state that"the Crown does not have to prove knowledge of the suspension", that having established the suspension based on MTO records, theburden shifted to the defendant to show that he was not at fault. In reaching his decision, Justice MacDonnell invoked the Ontario Courtof Appeal decision in R. v. Miller (ON CA), [1988] O.J. No. 253 and other relevant jurisprudence. Issues similar tothe one's emerging from the present case were also dealt with by Justice Harris in a set of POA appeals - R. v.

Lamanna, Jane andCaldwell, [2014] O.J. No. 4901. As in the present case, these defendants were tried in absentia. Unlike the present case, the presidingJustice actually refused to admit the driving record - thereby setting the stage for acquittals. On the appeal, Justice Harris found thatonce the prosecution met the statutory requirements, a Justice of the Peace had no basis for refusing to receive the records; and once therecords were admitted, the prosecution's case was made out. The onus then shifted to the defendants to establish due diligence - whichobviously failed because they didn't attend the trial.

Justice Harris acknowledged that Justice Fairgreve took a somewhat differentposition on the law in the case of R. v. Bellomo [1995] O.J. No. 313 - but he found that position couldn't be maintained, not least becauseit was effectively overruled by Justice MacDonnell's decision in R. v. Montgomery. I agree completely with Justice Harris. … Once the record was in evidence, the prosecution's case was made out. In the absence of any evidence suggesting that Mr.

Quick wasunaware that his licence had been suspended or that could otherwise support the defence of due diligence - a conviction should havefollowed. [47] Furthermore, in R. v. Miller, (ON CA), [1988] O.J. No. 253 (O.C.A.), the Court of Appeal for Ontario had todecide together the appeals of three different motorists, who had all been convicted of committing H.T.A. offences related to theirdriver’s licences being suspended or not renewed by the Ministry of Transportation.

In respect to the appellant named Laporta, the Courtof Appeal held at paras. 5 and 6, that s. 34, which is similar to s. 52(2) of the present H.T.A. (except that sending the notice by regularmail instead of sending the notice by registered mail is now permitted for giving notice to the defendant of the suspension of thedefendant’s Ontario driver's licence) did not infringe ss. 7 or 11(

d) of the Charter, nor did it create a reverse onus with respect to provingan essential element of the drive while under suspension offence, since the drive while under suspension offence is a regulatory offencein which the defence of due diligence is applicable and that the absence of notice is relevant to the due diligence defence [emphasis ismine below]: ... The additional point raised in Laporta was that s. 34 [which is similar to s. 52(2)] contravened the presumption of innocenceprotected by s. 11(d), and also contravenes s. 7 of the Charter.

Section 34 [which is similar to s. 52(2)] provides for a presumptiveinference of service of notice of suspension where it is given by registered mail unless the accused establishes on a balance ofprobabilities that he did not, for the reasons set forth in the section, receive the notice. In our view, s. 34 [which is similar to s. 52(2)] does not create a reverse onus with respect to an essential element of the offence under s.35.

Section 35 is a regulatory offence to which the defence of due diligence is applicable; absence of notice is relevant to such a defence.Section 34 [which is similar to s. 52(2)] in our view does not contravene either ss. 11(

d) or 7 of the Charter, and this appeal must also bedismissed. (

d) The Prosecution Has Proven The Actus Reus Of The Drive While Under Suspension Offence Beyond A Reasonable Doubt [48] For the first stage of the inquiry into whether the defendant should be found guilty of committing the offence of drive whileunder suspension, the prosecution has met its burden in proving beyond a reasonable doubt that the defendant’s Ontario driver’s licencewas under suspension on November 26, 2014 (see Exhibit #1), and that Officer Jamshidi had observed the defendant operating a motorvehicle at 2:07 p.m. on November 27, 2014, on Meyerside Drive in the City of Mississauga when his Ontario driver's licence had beenunder suspension. [49] Therefore, the second stage of the inquiry will now have to be undertaken to determine whether the defendant has met his burdenof proving on a balance of probabilities that he was not at fault. (

e) Has The Defendant Proven On A Balance Of Probabilities The Defence Of Due Diligence?

[ 50 ] In respect to the Notice of Suspension that had been mailed out to the defendant by the Registrar of Motor Vehicles for the Ontario Ministry of Transportation and on how that is relevant to whether the defendant has proven that he had not been at fault for committing the drive while under suspension offence, MacDonnell J. held at para. 12 in R. v.

Montgomery , that evidence that the accused did not receive the notice of suspension, which had been mailed out by the Registrar of Motor Vehicles for Ontario, would be an important circumstance to consider in relation to whether the accused has proven the defence of due diligence on a balance of probabilities.

However, MacDonnell J. also emphasized that such evidence would not necessarily discharge the burden on the accused unless the accused also establishes that he did not otherwise know of the suspension and that his lack of knowledge had not been due to his negligence [ emphasis is mine below ]: In the case at bar, there is no dispute that the evidence proved the actus reus of the offence of driving under suspension beyond a reasonable doubt. 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 – i.e., that he was not negligent – in relation to whether his license was under suspension. Evidence that the notice of suspension mailed by the Registrar of Motor Vehicles was not received would be an important circumstance to consider in relation to this issue: R. v. Middlebrook, supra.

However, such evidence would not necessarily discharge the burden on the appellant unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his negligence . [ 51 ] Moreover, it had been approximately 5 or 6 months after the defendant had moved to Alberta and after the defendant’s Ontario driver's licence had been surrendered and cancelled on September 28, 2009, that the Registrar of Motor Vehicles for the Ontario Ministry of Transportation had suspended the defendant’s Ontario licence on February 12, 2010, for unpaid fines.

To notify the defendant of the suspension, the Registrar of Motor Vehicles had sent out the Notice of Suspension by ordinary mail to the defendant’s last known address of 2560 St. Clair Avenue West, Toronto, on February 12, 2010, as required under s. 52(2) of the H.T.A.

And, even though the defendant had testified that he had not been residing at that Toronto address after September 28, 2009, the defendant is nevertheless deemed under s. 52(2) to have received service of the Notice of Suspension on the seventh day after the notice had been mailed to the defendant’s last known address, unless the defendant can establish on a balance of probabilities that he, acting in good faith, did not receive the notice through absence, accident, illness or other cause beyond his control. [ 52 ] To establish that he did not actually receive the Notice of Suspension (Exhibit #1) mailed out by the Ontario Ministry of Transportation, nor that he knowledge of or been made aware of the suspension, the defendant had testified that he had only become aware that his Ontario driver’s licence had been suspended when he had been stopped by Officer Jamshidi on November 26, 2014, and informed by the officer that his Ontario driver's licence had been suspended.

And to further support his contention that he did not actually receive the Notice of Suspension, the defendant argued that the Notice of Suspension had been sent to his old Toronto address on February 12, 2010, which is months after he had already moved to Alberta in 2009, and months after his Ontario driver's licence had already been surrendered in Alberta, as well as already being cancelled by the Ontario Ministry on September 28, 2009. [ 53 ] And, to further prove the defendant’s contention that he had no knowledge of or been made aware that his Ontario driver’s licence had been suspended, the defendant contends that from the date he had initially received his Alberta driver’s licence on September 28, 2009, until the day that he was stopped and charged by Officer Jamshidi on November 26, 2014, he has had to renew his Alberta driver’s licence 3 or 4 times, since he is legally required in Alberta to renew his licence every 2 years because he is a professional truck driver and over 45 years of age, and that he had been able to renew his Alberta licence each time without problem or without the Alberta Ministry refusing to renew his Alberta licence because of the Ontario suspension.

And, because he would not have been allowed to obtain or renew his Alberta licence if his Ontario licence had been suspended or not valid, then the defendant contends that he could not have known or been made aware that his Ontario licence had indeed been suspended, since he had been permitted to renew his Alberta driver’s licence on all those occasions of renewal after he had moved to Alberta. [ 54 ] On the other hand, Officer Jamshidi testified that from his conversation with the defendant during the traffic stop of November 26, 2014, Officer Jamshidi had reason to believe that the defendant had been aware of his suspension and that the defendant had only obtained an Alberta license to avoid the problems associated with his Ontario driver’s licence.

However, there is no evidence nor particular admissions or statements made by the defendant to Officer Jamshidi that would support Officer Jamshidi’s belief that the defendant had known about the suspension of his Ontario licence before Officer Jamshidi had charged the defendant on November 26, 2014. [ 55 ] Moreover, before the defendant had moved to Alberta, the defendant had believed that he had no demerit points and that all his parking tickets and outstanding fines had been paid, since he had attended at the courthouse on Queen Street in Toronto about a month before he left Ontario to enquire about his outstanding parking tickets and fines and then paid them off.

In addition, he said he knew he had to clear up his parking tickets and outstanding fines in order to ensure that his Ontario driver’s licence would be in good standing, so that he would then be able to exchange it for an Alberta licence. [ 56 ] However, Officer Jamshidi had also testified that some provinces would issue and exchange a driver’s licence from another province with the expectation that the motorist would later pay off their fines that are owing to another province. However, no weight

can be put on this particular evidence, since Officer Jamshidi had not been qualified as an expert on the procedures of other provinces or the Alberta Ministry in issuing an Alberta driver’s license to a motorist who moves to Alberta from Ontario. [ 57 ] In addition, when asked why he did not inform the Ontario Ministry of Transportation of his new address in Alberta, the defendant testified that the Alberta Ministry would have informed the Ontario Ministry of Transportation of his new Alberta address after he had exchanged his Ontario licence for the Alberta licence. [ 58 ] Also, when asked why he did not make arrangements with Canada Post to have his mail forwarded to his new address or to another address, which could forward mail to him, the defendant replied that he had not make such arrangements and that the mail in any event would have only been forwarded by Canada Post for 5 to 6 months. [ 59 ] In addition, there has been no evidence presented that the defendant had provided his change of address to the courthouse that had jurisdiction over the H.T.A. tickets or charges that had resulted in the unpaid fines. (

i) Was the defendant diligent in dealing with the H.T.A. tickets or charges that had led to the unpaid fines? [ 60 ] Once again, it should be emphasized that the defendant has the burden on a balance of probabilities to prove that he was not negligent in dealing with all his H.T.A. tickets or charges, especially the ones that ultimately led to convictions and fines that resulted in the fines going unpaid and the resulting suspension of his Ontario licence by the Ontario Ministry of Transportation.

This burden to prove that he was not negligent includes the defendant having to also establish that he, acting in good faith, had not received the notice of suspension through absence, accident, illness, or other cause beyond his control. [ 61 ] To reiterate, the defendant contends that he had believed he had taken care of all his parking tickets and outstanding fines before he had moved to Alberta in 2009 or he would not have been issued an Alberta driver's licence, and that did not receive actual notice of the Notice of Suspension because he had already moved to Alberta and that his Ontario licence had already been surrendered and cancelled 5 to 6 months before the suspension notice had been mailed out, nor did he have knowledge of or been made aware of his Ontario suspension based on the actions of the Alberta Ministry in renewing his Alberta licence 3 or 4 times and in not preventing him from renewing his Alberta licence on account of the Ontario suspension. [ 62 ] And, because the defendant had been able to renew his Alberta licence during the period that his Ontario driver's licence had been under suspension, also raises the question of whether provinces do exchange information among themselves about a motorist’s driving or traffic offences, convictions in respect to these offences, and information about any outstanding fines, where the motorist has committed these driving or traffic offences outside of the province or territory in which the motorist resides or is licenced, and whether the province where the motorist resides or is licenced will issue or renew a driver’s licence to the motorist, if the fines of that motorist incurred in another province are not paid off. [ 63 ] It should also be evident that the defendant in not actually receiving the Notice of Suspension or that his lack of awareness about his Ontario licence being suspended for unpaid fines does not necessarily create reasonable doubt, nor will it lead to an acquittal, especially if he had been negligent or not diligent in dealing with all of his H.T.A. tickets or charges that he had received, before he had moved to Alberta. (ii) W ould the Ontario Ministry of Transportation have known about the defendant’s new Alberta address? [ 64 ] No evidence had been produced that the defendant had ever informed the Ontario Ministry of Transportation of his new Alberta address after he had moved to Alberta in 2009.

Furthermore, the defendant had admitted at trial that he did not arrange to have his mail forwarded by Canada Post from his 2560 St. Clair Ave.

West, Toronto address to his new Alberta address or to another address where his mail could be forwarded to him because Canada Post would only forward mail for no more than 5 or 6 months. [ 65 ] However, the defendant contends that the Ontario Ministry of Transportation would have known about his new address in Alberta, since the Alberta Ministry responsible for issuing driver's licences in Alberta would have provided the defendant’s Alberta address to the Ontario Ministry, when the defendant had surrendered and exchanged his Ontario licence for the Alberta licence with the Alberta Ministry.

At first glance, the defendant’s contention is not illogical in light of the interprovincial agreement called the “Canadian Driver Licence Compact”, in which both Alberta and Ontario are signatories to that agreement, and where under such

agreement driver's licences can be surrendered and exchanged by motorists who move from one province to another, and whereby information on specific driving or traffic offences committed by motorists in a province or territory outside their own province of residence or province where they are licenced are supposed to be shared with the province or territory where the motorist resides or is licenced. (

a) Reciprocal Agreements Between Ontario And Other Jurisdictions In Respect To Sharing Information And The Sanctioning Of Drivers For Offences Committed In Each Other’s Jurisdiction [ 66 ] In respect to interprovincial agreements between provinces and territories in Canada in respect to sharing information on motorists who commit driving offences, for cooperating in the sanctioning of drivers who commit driving offences outside their province of residence or province where they are licenced, and for facilitating the exchange of driver’s licences, s. 40(1) of the H.T.A. authorizes the Minister of Transportation for Ontario to enter into such a reciprocal agreement with the government of any province or territory of Canada in respect to such endeavors, while s. 40(2) of the H.T.A. makes the provisions of the H.T.A. subject to any such reciprocal agreement [ emphasis is mine below ]: Agreements with other jurisdictions 40(1) The Minister may enter into a reciprocal agreement with the government of any province or territory of Canada or of any state of the United States of America providing for , (

a) the sanctioning by the licensing jurisdiction of drivers from that jurisdiction who commit offences in the other jurisdiction ; and (

b) on a driver’s change of residence, the issuance of a driver’s licence by one jurisdiction in exchange for a driver’s licence issued by the other jurisdiction . Effect of agreement

(2) The provisions of this Act and the regulations with respect to the licensing of drivers are subject to any agreement made under this

section . (

b) The Canadian Driver Licence Compact [ 67 ] On September 27, 1990, most Canadian provinces, including, the provinces of Ontario and Alberta, became signatories to the Canadian Driver Licence Compact, which sets out guidelines for the way provinces administer driver’s licences and records when drivers move from one province to another, the sharing of information about motorists who are convicted of specific driving offences, and the obligation to deny the issuance or renewal of driver's licences to motorists until outstanding fines are paid. [ 68 ] The wording of this interprovincial agreement can be found in Murray Segal’s reference book, “The Motor Of Vehicle Law, 3 rd ed.” (looseleaf) (Toronto, Ontario: Carswell, 1982), at pp. 4-32 to 4-38.

The relevant parts of the Canadian Driver Licence Compact is reproduced below [ emphasis is mine below]: Canadian Driver Licence Compact (Amended June 2001] The Canadian Driver Licence Compact, an agreement among most provinces and the territories to exchange traffic offence information, was signed earlier this year by Ontario.

Under the compact’s terms specified infractions committed under the highway traffic acts of each participating province will result in the application of demerit points to the driver’s home province record. As of June 1, 1991, Ontario began exchanging traffic offence conviction information with Manitoba, Alberta and Newfoundland. As well as the safety-related features of the Compact, it provides for easy transfer of driver licence information of people relocating to other provinces. Ontario has a separate agreement with Quebec, supra.

In June 2001, the Canadian Council of Motor Transport Administrators approved changes to the Canadian Driver Licence Compact designed to increase road safety and move further towards the one driver licence-one driver record concept. Under the changes, the jurisdiction where the offence has taken place is now obligated to notify the home jurisdiction, which will then take action as if the offence had remained unpaid in the home jurisdiction. In addition, the changes also allow the home jurisdiction a number of options to either withhold or suspend the person’s driving privileges or deny vehicle registration.

In the original agreement,

Article 5 was written in permissive language which allowed jurisdictions the option of not taking action for unpaid fines.

The following is the Canadian Driver Licence Compact between the provinces and territories: Council of Ministers Responsible for Transportation and Highway Safety ENTERED INTO this 27th day of September, A.D. 1990 between: The Government of Ontario herein represented by the Minister of Transportation and; The Government of Québec herein represented by le Ministre des Transports and; The Government of Nova Scotia herein represented by the Minister of Transportation and Communications and; The Government of New Brunswick herein represented by the Minister of Transportation and; The Government of British Columbia herein represented by the Solicitor General and; The Government of Manitoba herein represented by the Minister of Highways and Transportation and; The Government of Prince Edward Island herein represented by the Minister of Transportation and Public Works and; The Government of Saskatchewan herein represented by the Minister Responsible for Saskatchewan Government Insurance and; The Government of Alberta herein represented by the Solicitor General and; The Government of Newfoundland and Labrador herein represented by the Minister of Works, Services and Transportation and; The Government of Yukon herein represented by the Minister of Community and Transportation Services and; The Government of Northwest Territories herein represented by the Minister of Transportation.

WHEREAS the jurisdiction which are signatories wish to: 1. Promote compliance with traffic laws and improve highway safety within their respective borders; 2. Facilitate, for their respective residents who hold valid drivers’ licences, the issuance of a licence by a party jurisdiction to which they are moving ; 3. Pursue compatibility by the implementation of the one driver licence and one driver record concept; 4.

Further highway safety by treating offences for which their residents have been convicted of in the jurisdiction of any other party as if they had been committed in the home jurisdiction for the purposes of updating and maintaining driver’s licence records and imposing sanctions ; 5. Strengthen cooperation between the parties so that residents are encouraged to satisfy penalties imposed as a result of convictions for certain traffic offences committed outside their home jurisdictions .

THEREFORE, acting by and through their respective ministers, pursuant to and in conformity with their respective laws, as amended from time to time, they hereby undertake to pursue the courses of action provided for herein .

ARTICLE 1 —

DEFINITIONS For the purposes of this Compact: … “Conviction” includes: an admission, finding or determination of guilt or the voluntary payment of a fine for an offence mentioned under

Article 4 committed in the jurisdiction of one party by a resident of any other party, and “convicted” has a like meaning. “Home jurisdiction” means: the jurisdiction that issues a driver’s licence and has the authority to suspend, cancel or revoke it, or the jurisdiction of residence in the case of a person who does not hold a driver’s licence. “Jurisdiction of origin” means: the jurisdiction which has issued the driver’s licence that the driver wants to exchange for a licence of the jurisdiction to which the driver has moved. … “Party” means: a jurisdiction signatory to this Compact. “Valid licence” means: a licence that has not expired and is not suspended, cancelled or revoked by the jurisdiction which issued it.

A

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