R. v. Davidson, 2015 ONCJ 764

COURT FILE No. Halton Region, Central West Region 14-469 DATE: 2015-12-22 CITATION: R. v. Davidson , 2015 ONCJ 764 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MELVIN DAVIDSON Before Justice Alan D. Cooper Heard on October 19, 2015 Reasons for Judgment released on December 22, 2015 Erinn M. O’Marra for the Crown Gerald P. Logan for the defendant Melvin Davidson Case History [ 1 ] Melvin Davidson was stopped by Ontario Provincial Policer officer S.

Jaswal on the westbound Queen Elizabeth Highway, west of Dorval Drive in Oakville, for driving at 130 kilometers per hour in a 100 kilometers per hour zone. [ 2 ] The defendant rolled down his window about one quarter of an inch and the officer asked him to produce his driver’s licence, vehicle ownership and insurance documents. He pulled out of his wallet a document which the officer thought was a driver’s licence and held it to his chest, but the printing was very small, and it was just after 11:15pm, and dark outside. [ 3 ] Officer Jaswal repeated his request and Mr.

Davidson replied that “I am not handing it to you; I am under no contract with you.” He was warned he would be arrested if he did not comply, but the defendant asked the officer to show his identification first. The officer was in uniform and his name was on it. Mr. Davidson then rolled up his vehicle window and locked the vehicle doors. [ 4 ] Assistance was requested, and at 11:33pm Sergeant Clayton and Constable Paul arrived. The defendant partially rolled down one window as he did before. He wanted the officers to produce their identification, and Sergeant Clayton showed him his badge. Mr.

Davidson rolled down his window a bit further and Sergeant Clayton was then able to open the car door. [ 5 ] The defendant held on to his steering wheel and his hands were forcibly removed from it. He was taken out of his car and arrested for failing to surrender his driver’s licence for inspection, contrary to

section 33( 3 ) [ emphasis added ] of the Ontario Highway Traffic Act , and for obstructing a peace officer in the execution of his duty by refusing to surrender his driver’s licence, contrary to

section 129 of the Criminal Code . His wallet was retrieved from the vehicle and there was no driver’s licence in it. Mr. Davidson’s health card was located, and once his identity was established, he was released at the scene. He was also charged with the speeding offence, contrary to

section 128 of the Ontario Highway Traffic Act . [ 6 ] Officer Jaswal was the sole Crown witness and the defence called no evidence. Statutory Provisions [ 7 ]

Section 129 of the Criminal Code reads as follows: 129. Every one who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, (

b) omits, without reasonable excuse, to assist a public officer or peace officer in

the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or (

c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, is guilty of (

d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (

e) an offence punishable on

summary conviction. [ 8 ] The Ontario Highway Traffic Act sets out the following provisions: 33 .

(1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(2) Every accompanying driver, as defined under

section 57.1, shall carry his or her licence and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(3) Every person who is unable or refuses [ emphasis added ] to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification 217 .

(1) Every person called upon to assist a police officer or officer appointed for carrying out the provisions of this Act in the arrest of a person suspected of having committed any offence mentioned in subsection (2) may assist if he or she knows that the person calling on him or her for assistance is a police officer or officer appointed for carrying out the provisions of this Act, and does not know that there are no reasonable grounds for the suspicion.

Arrests without warrant

(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3),[emphasis added] subsection 47(5), (6), (7) or (8),

section 51, 53, subsection 106 (8.2),

section 130, 172 or 184, subsection 185 (3), clause 200 (1) (

a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention. Onus of Proof [9] The onus is on the Crown to prove the guilt of the guilt of the defendant beyond a reasonable doubt on the charge of obstructing a peace officer in the execution of his duty. Speeding is an absolute liability offence; see R. v. Hickey (1976), 13 O.R. (2d) 228 (C.A.). Although there is little case authority on this point, the offence under section 33(3) of the Highway Traffic Act, is at the very least, a strict liability offence.

Defence Submissions [10] Counsel for the defendant argued that his client is not guilty of failing to surrender his driver’s licence even though he did not turn itover to the officer as requested to. Counsel bases his submission on the wording of section 33(3) of the Highway Traffic Act, and on R. v.Plummer, (ON CA), [2006] O.J. No. 4530 (C.A.), which dealt with the

interpretation of section 33(3). Analysis [11] The judgment in Plummer was written by Rosenberg J.A., with Gillese J.A. concurring. MacPherson J.A. rendered a dissentingopinion. Rosenberg J.A. meticulously went through the legislative history of

section 33 of the Highway Traffic Act. He pointed out thatin enacting this section, the Ontario Legislature decided that no one should be arrested for being unable to, or refusing to, produce adriver’s licence for inspection by a police officer, unless a peace officer has made an additional request for reasonable identification. Acorrect name and address is deemed to be reasonable identification. Justice Rosenberg referred to this as the “alternative identificationrequirement.” The court stated the following: 24 In 1969, the government introduced amendments to the Act.

It appears that these amendments were motivated, in part, by therecommendations of Chief Justice McRuer in the Royal Commission Inquiry into Civil Rights: Report Number One, vol. 2 (Toronto:Queen's Printer, 1968). Among other things, he called attention to the random and broad arrest powers in the Act and to the fact thatthose arrest powers could be exercised, not only by constables, but by officers appointed by the Minister for carrying out the provisions of the Act.3 See pp. 728-31 of Report Number One, vol. 2.

McRuer C.J.H.C. was of the view that arrest without warrant should berestricted to cases where the driver "without showing reasonable cause, does not properly identify himself and the owner of the vehicle,and those cases in which the driver does not appear to have any legal right to have the vehicle on the highway" (p. 731). 25 The relevant amendments were as follows. First, Bill 105 would have repealed s. 14(2) and substituted the following: •

(2) Every person who is unable or refuses to produce his licence in accordance with subsection 1 shall, when requested by a constable,identify himself by some other means satisfactory to the constable.

Second, the arrest powers in the Act were to be amended to permit, for the first time, the power to arrest for failing to identify. Third,like the present legislation, the arrest power in [then] s. 156 distinguished between constables and everyone else, including officersappointed for carrying out the provisions of the Act. A constable could arrest without warrant on the basis of reasonable and probablegrounds. Anyone else could arrest only where he or she found a person actually committing the offence.

Fourth, the governmentproposed to remove the arrest power for certain offences, such as failing to provide a notice of change of ownership. Finally, the specificpenalty provision in s. 14 was replaced with a general penalty provision in s. 154 of a fine of not less than $20 and not more than $100.Section 14(1) was unaffected by the proposed amendments. 26 There was opposition to the new s. 14(2) because it appeared to give constables discretion to decide what form of identificationwould be satisfactory. This kind of unfettered discretion was said to be inconsistent with the McRuer Report.

Accordingly, the Ministerof Transport proposed the following version: •

(2) Every person who is unable or refuses to produce his licence in accordance with subsection 1 shall, when requested by a constable, givereasonable identification of himself and, for the purposes of this subsection, the correct name and address of such person shall be deemedto be a reasonable identification. 27 Several points emerge at this point in the Act's history. While a constable or "officer appointed for carrying out the provisions ofthis Act" could make a demand to a motorist to produce the licence under s. 14(1), the reasonable identification provision was limited toa request from a constable.

Thus, the warrantless arrest power in [then] s. 156 could only be triggered by the actions of a constable.Finally, the new version of s. 14(2) eliminated a constable's discretion to decide what constituted reasonable identification by deemingthe correct name and address to be reasonable identification. [12] Rosenberg J.A.’s conclusion on the

interpretation of

section 33 was as follows: 43 In my view, the proper

interpretation of s. 33(3) requires that the officer must make a specific request for identification other than adriver's licence. Until that request for alternative identification has been made and the person has refused to comply, there is nocontravention of the subsection. It follows that there can be no power to arrest without a warrant until the officer has made the requestfor alternative identification. The appeal judge erred in law in his

interpretation of s. 33(3). [13] In the present case, Mr. Davidson was also asked by officer Jaswal to produce his vehicle ownership and insurance documents, so one might think this would meet the alternative identification requirement. Not so, according to Rosenberg J.A., who said the following: 45 I have considered whether the fact that the officer also asked for ownership and insurance, which might provide identification,7 could constitute a request of alternative identification. However, I conclude that it cannot. Such an

interpretation of the demand would beinconsistent with the concluding words of s. 33(3), which provide that the correct name and address of the person is deemed to bereasonable identification. As I have pointed out, the legislative purpose of including this phrase was to avoid the exercise of an unfettereddiscretion whereby the officer could determine the form of alternative identification that would be sufficient.

Further, while an officercan make a demand under s. 7(5) of the Act that a driver surrender the ownership permit for inspection, contravention of that provision isnot an offence for which a person can be arrested without warrant. Similarly, under s. 3(1) of the Compulsory Automobile Insurance Act,R.S.O. 1990, c. C.25, the operator of a motor vehicle on a highway must carry evidence of insurance and a police officer may demand itssurrender.

But, contravention of s. 3(1) is not an offence for which a person can be arrested without a warrant. 46 As the appeal judge observed, s. 33 imposes positive legal duties on drivers to identify themselves. But, those duties are onlytriggered in the specific circumstances set out in ss. 33(1) and (3). In this case, while the s. 33(1) duty was triggered, the s. 33(3) dutywas not.

The appeal judge said in his reasons: • A demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/hefails to identify herself/himself will be sufficient to trigger the arrest power in s. 217(2). However, in this case the warning Constable Allcroft gave to the appellant was tied to the failure to produce his licence, ownership andinsurance, not to a failure to provide alternative identification by way of his name and address. Thus, the arrest power was not triggered. [14] Since Mr.

Davidson was not asked to give his name and address, after refusing to produce his driver’s licence, the alternativeidentification requirement was not met, and there was no power to arrest him under

section 217 of the Highway Traffic Act. Obstructing a Peace Officer Engaged in the Execution of hisDuty [15] If there was no power to arrest Mr. Davidson, then officer Jaswal was not engaged in the execution of his duty. For a similar casesee R. v. Hayes, (ON CA), [2003] O.J. No. 2795 (C.A.).

[16] The Crown asked me to distinguish R, v. Plummer because in the case at bar officer Jaswal needed to know the identity of thedefendant in order to issue the speeding ticket. However, I do not agree that such a distinction can be drawn. Had the request foralternative identification been made, and the defendant refused to give his name and address, he could have been arrested. If he liedabout his name he could have been charged with obstructing a peace officer in the execution of his duty. See R. V. Walcott, 2006 ONCJ367 , [2006] O.J. No. 3947 (O.C.J.).

Conclusion [17] The defendant is found not guilty of failing to surrender his driver’s licence for reasonable inspection, and not guilty of obstructinga peace officer in the execution of his duty. During the trial, counsel for the defendant indicated that he was not contesting the speedingcharge, even though a plea of not guilty was entered. Accordingly, the defendant is found guilty of driving a motor vehicle on a highwayat 130 kilometers per hour in a 100 kilometers per hour zone. Released: December 22, 2015 ___________________________ Signed: “Justice Alan D. Cooper”