R. v. Anderson, 2016 ONCJ 758

CITATION: R. v. Anderson , 2016 ONCJ 758 DATE: December 26, 2016 COURT FILE No.: St. Catharines 12-0603/13-3306 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — ADAM ANDERSON Before Justice Fergus ODonnell Reasons for Judgment Released on 26 December, 2017 Mr. H. Limheng................................................................................................... for the Crown Mr. Adam Anderson.................................................................................. on his own behalf Fergus ODonnell, J.: Overview 1 . Adam Anderson appeals two sentences imposed on him in 2013 and 2014 for convictions under s. 2(1)(

a) of the Compulsory Automobile Insurance Act (“CAIA”) . On each occasion he was charged as being the owner and operator of a motor vehicle for which there was no insurance coverage in place. The First Offence 2 . Mr. Anderson was found guilty of the first offence after an in absentia trial before Her Worship Justice of the Peace Lavallee on 26 February, 2013. He had been pulled over by Provincial Constable Dan Briggs on Highway 406 in St. Catharines on 4 May, 2012 after Constable Briggs ran Mr.

Anderson's licence plate against the Ministry of Transportation database and found that its insurance status was unconfirmed. Mr. Anderson provided his ownership and driver's licence but not any insurance papers. He was also unable to provide Constable Briggs with any details of his insurance coverage. 3 . Mr. Anderson attended the Ontario Provincial Police (“OPP”) detachment later that same day to complain about the charge laid under the CAIA. He presented an insurance slip. Constable Briggs noted the details and then called the insurance company. A representative of the insurance company testified that Mr.

Anderson did have coverage on the car in question on the day he was charged, but it was only effective about two hours after he had been pulled over. That is to say that Mr. Anderson called and arranged coverage on the car after he was charged and then attended the OPP detachment with "proof" that he had coverage in an attempt to defeat the charge. 4 . This was Mr. Anderson's fourth conviction for the s. 2(1)(

a) CAIA offence, he having been convicted once in 1997 and twice in 1998. The prosecutor sought, and the court imposed, a fine of $20,000 plus costs and surcharge. As Mr. Anderson was not present for the trial, the sentencing court had no information about his personal circumstances. The Second Offence

5. The second conviction that Mr. Anderson appeals was also imposed in absentia, this time on 8 January, 2014 by His Worship T.Froese, also at St. Catharines. Niagara Regional Police Constable Raymond Choy testified that on 10 April, 2013 he ran the plateon a 2003 Corvette being driven by Mr. Anderson in St. Catharines and learned that the validation tag had expired almost one-and-a-half years earlier. Here again, Mr. Anderson had a valid driver's licence and ownership, but failed to present an insurancecertificate. In light of Mr.

Anderson's record for similar offences, which is objectively very bad, the prosecutor sought, andobtained, a fine of $25,000 on the CAIA charge as well as a six month driving suspension. As Mr. Anderson was not present forthe trial, the sentencing court had no information about his personal circumstances. 6. I note that, when one includes the "costs and surcharges", the total of Mr. Anderson's indebtedness amounts to so close to $75,000as not to make a difference. That is an excess of almost seventy per cent over the fines imposed. The Offender 7. Mr. Anderson is forty-two years old.

He told me on the appeal hearing that he was "out of control" with his alcoholism at the timeof these offences. He said that he has no real memory of that year, other than that he had gotten out of rehabilitation shortlybefore. At the time of these trials, both of which he failed to attend, he was living in his car. Although he has struggled withalcoholism for about twenty years, he was sober for about nine months in 2015 and three months as of August, 2016. He has had aresidence for about two-and-a-half years. He lives on $1,000 per months and pays $650 per month rent.

In addition to the nearly$75,000 owed under these convictions, he also owes about $40,000 on credit card debt. 8. Mr. Anderson said that he has not driven for about three years and is in no rush to do so. He has the possibility of employmentthat he can reach without a car. The Offence 9. The penalties for violations of s. 2(1) of the CAIA are harsh. They are meant to be so.

Driving a motor vehicle is by far the mostdangerous activity most of us engage in and most of us engage in it routinely and take it for granted, giving little thought to thedamage that can be caused when car strikes car or car strikes pedestrian or car strikes cyclist and so on. The requirement thatevery owner and operator of a motor vehicle ensure that he or she is covered by an insurance policy is essential to guarantee thatwhen damage is done it will be possible for the victim to be compensated. Given the high costs of injury and damage occasionedby driving, insurance is expensive.

It is particularly expensive if one has a history of Highway Traffic Act offences or CAIAoffences. One very good reason for the high fines under the CAIA is to try to send the message that drivers should not choose todrive without insurance and run the risk of being caught, but view any fine imposed as an acceptable risk or effectively a licensingfee, cheaper than insurance itself. 10. I have referred to the fines as harsh.

They are a minimum fine of $5,000 (plus the aforementioned costs and surcharges) for a firstoffence, with a maximum possible fine of $25,000 for a first offender, rising to a minimum fine of $10,000 and a maximum fine of$50,000 for a subsequent offence. There is no apparent limitation period for treating a subsequent offence as a subsequentoffence.[1] Here, Mr. Anderson's previous convictions were about fifteen years before this brace of convictions. The Issues 11. I believe there are two issues that I must address in determining whether or not to intervene with respect to Mr. Anderson's fines.

The first is whether or not the fines imposed were themselves appropriate in all the circumstances. In determining that question, Imust keep in mind the fact that each of these were "subsequent" convictions to Mr. Anderson's convictions in the 1990s and, assuch the applicable minimum fine for each conviction is $10,000 plus costs and surcharges.

I must also turn my mind to s. 59(2)of the Provincial Offences Act, an enlightened provision that allows a court to depart from a mandatory minimum penalty, "where,in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive orotherwise not in the interests of justice." 12. The Court of Appeal instructs that it is also legitimate for me, in considering the impact of the fines on Mr. Anderson, to considerthe impact of the surcharges: R. v. Henry Heyink Construction Ltd., (1999), (ON CA), 118 O.A.C. 261.

Theinflationary impact of the surcharges and fees that is evident in the present case, i.e. a bump-up of almost seventy percent over theactual penalty imposed, might itself be considered draconian. There was no challenge to the constitutionality of either themandatory minimum or the surcharges, etc. in this case (Mr.

Anderson was self-represented), but it would seem entirely probablethat the safety-valve that exists in the form of the overriding discretion in s. 59(2) of the Provincial Offences Act would immunizeeither feature from a constitutional challenge unlike the flurry of such challenges that has arisen in relation to various CriminalCode and Controlled Drugs and Substances Act mandatory minimums. See, e.g.: R. v. Karami, [1997] O.J. No. 5962. There is nopower to override a mandatory minimum in relation to Criminal Code and CDSA provisions.

The Fitness of the Sentences Imposed 13 . Before getting to whether or not s. 59(2) of the Provincial Offences Act should be engaged to Mr. Anderson's benefit, I should note that I see two independent problems with the sentences imposed on him at trial. First, the sentences imposed on him gave no consideration at all to his ability to pay. That was no error on the part of the justices of the peace since Mr. Anderson did not appear for his trial. (It might, however, have been prudent to have deferred sentencing in a case where penalties this high were being sought and to have summonsed Mr.

Anderson to appear for his sentencing hearings.) In any event, I have the benefit of knowing more about Mr. Anderson's personal and financial circumstances than either of the justices of the peace at trial. 14 . The second problem inherent in the two sentences is that they appear to make no allowance for the enormous gap in time between Mr. Anderson's previous convictions and the present convictions, a gap of fifteen years.

As I have noted, there is no mechanism in s. 2(1) of the CAIA that imposes a time limit for a subsequent conviction to count as a subsequent conviction, meaning that the mandatory minimum for each charge was ten thousand dollars. However, the existence of such a gap is a material consideration that should have affected each justice's decision about how close to the mandatory minimum these new sentences should fall. It was an error in principle not to have taken that into account and the sentences imposed strike me as unsustainable in light of that oversight. 15 .

In my opinion, before considering s. 59(2) of the CAIA, the existence and length of the gap should have led to sentences much closer to the ten-thousand dollar mandatory minimum than the sentences imposed on Mr. Anderson on each occasion. In light of the very long gap, the mandatory minimum already allowed for the fact that the 2013 conviction was Mr. Anderson's fourth conviction for this offence. I must also consider for that count, however, the aggravating fact that Mr.

Anderson sought to deceive the police by going and renewing his insurance after he was charged and attending the detachment later that day with purported proof that he had insurance coverage all along. Mr. Anderson is fortunate that he was not charged with attempting to obstruct justice for those shenanigans. 16 . Taking all of those circumstances into account, I am of the view that an appropriate sentence for the first offence would have been a $12,000 fine (plus surcharge, etc.) 17 . The second offence before me (or Mr.

Anderson's fifth conviction) did not have the aggravating feature of him trying to pull a fast one on the police, but it came less than a year after he had been charged with the 2012 offence. That close repetition, combined with the fact that he also had a previous, albeit dated, history of CAIA violations, warrants a penalty higher than the mandatory minimum of $10,000. In my view an appropriate penalty for that offence would be a $13,000 fine (plus surcharge, etc.). 18 . Accordingly, in my opinion the total penalties Mr.

Anderson should face, before consideration of whether or not mitigation should be extended under s. 59(2) of the Provincial Offences Act is $25,000 (plus surcharge and fees), rather than $45,000. Those sentences are based on the legal reality that for a subsequent offence under s. 2(1) of the CAIA , the minimum sentence is a fine of ten thousand dollars. Is Mitigation of Those Sentences Available Under s. 59(2) of the Provincial Offences Act? 19 . I now come to the issue of whether or not I should grant Mr.

Anderson relief from the minimum penalty regime under s. 59(2) of the Provincial Offences Act, which provides:

(2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence. 20 .

Any consideration of s. 59(2) must keep in mind the language of the section, what circumstances of the defendant are presented as being “exceptional” and the legislative purpose underlying the particular mandatory minimum sentence that the defendant seeks to undercut. The case-law is very clear that the minimum sentences in s. 2(1) of the CAIA are harsh, oppressive, even draconian. However, as I and others have recognized, they are so for a reason. There is nothing inadvertent in the mandatory minimum fines. People operating motor vehicles put other people at risk.

People operating motor vehicles can easily cause great harm to other people. Given the very high costs of long-term attendant care, loss of income, etc. that often results from motor vehicle collisions, the person doing the harm will likely not have the personal financial wherewithal to provide economic redress for the harm done. Insurance provides a reasonable chance that a victim will be put right, at least to the extent that money can put such things right. Insurance is expensive. It is particularly expensive for people who are bad drivers, who are the people who put other people at

the greatest risk. Given all of that, the mandatory minimum fines are intended to avoid the risk that a driver will choose not toobtain insurance on the theory that, if he gets caught, any penalty will be less than the cost of the insurance. The mandatoryminimum sentences are designed to discourage all drivers from even considering that line of thinking. 21. A good

summary of much of this is found in the language of Brown, J. in R. v. Fong, [2004] O.J. 4117 (O.C.J.): 21 The Legislature made a policy decision, in 1996, in proclaiming the minimum sentencing provisions for this offence, to provide fora minimum fine of $5,000. for this offence. Similar to the situation in R. v. Fagbemi, [2000] O.J. No. 2550 (O.C.J.), the financialcircumstances of the defendant are somewhat sketchy. In both Fagbemi and in the subject case, the defendants are students. This courthas enquired into Mr. Fong's ability to pay, and been advised that Mr.

Fong is a student, living in a home owned by his parents, anddriving a vehicle owned by a family member. Mr. Fong plans to commence a part-time employment position in a few weeks. This courtfinds persuasive the reasoning of the court in Fagbemi, supra, which reviewed the imposition of the fines imposed by the justice of thepeace. In the judgment, the court noted : "... minimum fines prescribed by the Compulsory Automobile Insurance Act exceed, by design, the ability to pay ofvirtually everyone in the community likely to commit the offences in question.

The statutory provisions themselves dictate a departurefrom the principles of sentence that normally govern the imposition of fines. As held by the court in Fagbemi, supra, this court is of the view that the specific legislative policy reflected in the statutory minimumfine of $5,000 provided by the Compulsory Automobile Insurance Act, in 1996, reflects a principle of great significance. It reflects achange to the provincial legislative policy as of the changes to the minimum fine in 1996.

As noted in Fagbemi, supra, the increase in thepenalty from a fine of $500., tenfold, to a minimum fine of $5,000.: "was intended to exceed significantly the insurance premiums that would be payable by even the highest-risk group of carowners. The obvious intention was to provide an additional inducement to comply with the statute for those most likely to resistobtaining insurance, including, I would have thought, relatively poor young male students like the appellant. As Robins J.A. stated in R.v. DiLorenzo (1984), (ON CA), 11 C.C.C. (3d) 13 at p. 25 (Ont.

C.A.), with respect to the 3-year minimum licencesuspension for avoiding police engaged in a pursuit, "[t]he Legislature has specifically declared the minimum penalty and no basis existsupon which to vary or modify its manifest intention". 22 The court finds the reasoning in this judgment to be persuasive. Most people in society would have difficulty paying a $5,000. fine.However, the amount of the minimum fine is clearly designed to compel vehicle owners to insure their vehicles, bearing in mind whatmight be a high cost of a premium for insurance coverage for some owners.

There is a significant public interest in encouraging ownersto have insurance coverage. Likewise, the principles of general deterrence and protection of the public are important in these types ofcases, where it is important to deter other vehicle owners from ignoring their legal responsibility to insure their vehicles. Insurancecoverage of this nature is clearly to the benefit of all users of the road, and pedestrians alike. 23 The issue of ability to pay, within the court's ability to consider the s. 59 Provincial Offences Act provision, must in this court'sview not be considered in isolation.

As noted in Fagbemi, the cost of obtaining insurance should be included in the consideration of thedecision to purchase or use a motor vehicle. A student without means of income, and without proper means of acquiring and insuring amotor vehicle, should not be able to escape the usual penalties for this offence simply by virtue of this circumstance. 22. Section 59(2) must be read in keeping with the language selected by the legislature, namely “exceptional”, “oppressive”, or “nototherwise in the interests of justice” and, as I have said, the policy objectives of s. 2 of the CAIA.

I agree with the observation in R.v. Nemtsov, 2009 CarswellOnt 3321 (OCJ), to the effect that “exceptional” and “oppressive” are lower standards than“catastrophic” and also that a person’s ability to pay may, in some cases, contribute to a determination that s. 59(2) should beengaged to a defendant’s benefit.

At the same time, as has been noted elsewhere, it was the legislature’s intention with a limitednumber of offences (for example, the mandatory minimum penalty of $2,000 for “stunt-driving” in s. 172(2) of the HighwayTraffic Act), to impose a mandatory penalty that is to harsh as to make it clear to motorists that whatever sting there may be in thepenalty for certain regulatory offences, others are considered so anathema to public safety that the penalty will be toxic.

Inconsidering economic circumstances under s. 59(2), I must also keep in mind that the legislature has not seen fit to impose income-based penalties for driving offences as is customary in some other jurisdictions. I also agree that the analysis under s. 59(2) shouldtake into account the fact that a very harsh penalty may be less harsh if a very long time is granted for the fine to be paid.

As Inoted above, the Court of Appeal has also said that the effect of the surcharge is a relevant consideration in determining the fitnessof a sentence and I see no logical reason that it should not be a relevant factor under the s. 59(2) analysis.

23 . In Mr. Anderson’s case I am presented with a defendant with an awful history of non-compliance with the coverage requirements of the CAIA, albeit with a substantial gap between offences 1-3 and offences 4-5. There is the aggravating factor of deceit on the fourth conviction, i.e. the earlier of the two cases before me. The surcharges and fees have almost doubled Mr. Anderson’s indebtedness, for reasons that were not explained, but the fact that they had almost doubled was not in dispute. Mr.

Anderson is a recovering alcoholic, making the fitful progress that some people suffering from that particular addiction make. He has been dealing with alcoholism for over twenty years. He had been living in his car for part of the time around these offences. He felt that his life was entirely out of control at the time and has no real memory of that year. The progress that he has made, uneven as it may be, is to his credit. The gap between his first batch of CAIA offences and these two offences is noteworthy.

He says he has been off the road for three years and does not seek to return to driving, but rather wants to “clean up the debris of those years”, which also includes about $40,000 in other debts. He has considered bankruptcy as a way to eliminate that other debt but does not want to go down that road. Subject to obtaining employment, his income is $1,000 a month, of which $650 goes to rent, in a house he shares with three room-mates. 24 . There is no bright line that delineates where “oppressive” or “exceptional” or “otherwise in the interests of justice” begins.

Every case must be determined on its merits, keeping in mind not only the mitigating potential of s. 59(2) of the Provincial Offences Act , but also the legitimate goals of the legislature and society’s legitimate interest in ensuring that people who choose to drive have a powerful incentive to make sure that they are properly insured. I have already determined that, applying appropriate principles of sentence, Mr. Anderson’s original total fines of $45,000 (before surcharges, etc.) should have totaled $25,000 (plus surcharges, etc.). When I consider the totality of the circumstances before me, including Mr.

Anderson’s illness, I am of the view that applying s. 59(2) of the Provincial Offences Act to his case leads to appropriate sentences of $7,500 (plus surcharges, etc.) for the first offence and to $8,500 (plus surcharges, etc.) for the second offence. This is a reduction of approximately one-third of what the appropriate fines would have been before the application of s. 59(2). Conclusion 25 . The fines are reduced accordingly. Mr. Anderson’s sentence on file number 12-0603 is reduced to $7,500 (plus surcharges, etc.) and his sentence onf file number 13-3306 is reduced to $8,500 (plus surcharges, etc.).

Released: 26 December, 2016