



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scantlebury, 2016 ONCA 453

DATE: 20160608

DOCKET: M45910

Lauwers J.A.  (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Kimberly Scantlebury

Applicant

Kimberly Scantlebury, acting in person

Robin Squires,
amicus

Grace Choi, for the respondent

Heard:  May 10, 2016

ENDORSEMENT

A.

Background

[1]

This is a motion for leave to appeal to the Court of Appeal against an
    appeal judgment under the
Provincial Offences Act
,
R.S.O.
    1990, c. P.33 (the POA)
.

[2]

The applicant was charged on July 21, 2014 with operating a motor
    vehicle without insurance, contrary to s. 2(1)(a) of the
Compulsory
    Automobile Insurance Act
, R.S.O. 1990, c. C.25, surrendering false
    evidence of insurance to a police officer, contrary to s. 2(3)(b) of the
Compulsory
    Automobile Insurance Act
, and driving while under suspension, contrary to
    s. 53(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8.

[3]

The applicant did not attend court on her trial date of May 27, 2015. 
    An
ex parte
trial was held in her absence, and Justice of the
    Peace Cruz convicted the applicant of driving with no insurance and of
    surrendering false evidence of insurance to a police officer.  The charge of
    driving while under suspension was withdrawn by the prosecutor.  The minimum
    fine of $5,000 was imposed on each conviction, for a total fine of $10,000.
    With the mandatory surcharge, the applicant owes $12,500.

[4]

The applicant appealed and the appeal was heard and dismissed by Omatsu
    J. on November 26, 2015. The applicant is seeking leave to appeal both
    conviction and sentence to this court.

[5]

The applicant filed an affidavit together with some exhibits intended to
    explain her absence on the date of her trial and her due diligence defence. The
    applicant argues that defence of due diligence was available to her, which she
    tried unsuccessfully to put before the appeal judge.

[6]

The applicant explained that she missed her trial because her mother,
    who lives in the Barbados, was ill with a brain tumour and required treatment
    in Jamaica. She left Canada on February 24, 2015.  She originally intended to
    return on March 11, 2015. However, her mother continued to need her and she
    missed the return flight. She returned on June 7, 2015, some days after the
    trial date.  She explained that she sent a friend to request an adjournment but
    the friend arrived late, after the court closed.

[7]

On the merits of the due diligence defence, the applicant states that
    her insurance lapsed because her bank account was overdrawn. She says that as
    soon as she discovered that the original insurance had lapsed, she immediately
    secured new insurance. The evidence is that the insurance company sent her a
    one month warning letter by registered mail, which she did not pick up. The
    insurance company sought to withdraw premiums from her account just before the
    date that the charges were laid, but the account did not have enough money in
    it. The applicant offers no explanation for the lack of money in her account.
    However, she asserts that she believed there were sufficient funds in the
    account to cover the insurance, and she believed she was covered by valid
    insurance on the date that she was stopped.

[8]

The applicant was present for her appeal. The transcript notes that the
    applicant explained on the date she was pulled over she believed she had valid
    insurance with the same company that had insured her for five years. She
    advised the appeal judge that she did not receive a letter from the insurance
    company or telephone call cancelling the insurance.

[9]

An exchange occurred between the appeal judge and the applicant:

THE COURT:        You dont dispute that you had no insurance,
    and you dont dispute and you cant prove that you did, and you cant prove
    that your insurance papers were false [
sic
], so Im not sure exactly
    what the point would be of having to start over again.

APPLICANT:         Maam, my insurance slip was not false.

[10]

The
    applicant advised the appeal judge she was extremely confused about what was
    happening during the appeal hearing. She also said she could not afford the
    fines. Then she said she that she wanted a trial. The appeal judge suggested
    the applicant could come back on another date and prove her financial
    situation. After indicating that the matter would be adjourned to deal with the
    fine, a perplexing exchange occurred:

APPLICANT:         So, who would I speak to about the fine?

THE COURT:        Well, usually you speak to the prosecutor,
    and you show them some evidence where your financial situation, so they ...

THE APPLICANT: Well, I did that before when I did the appeal
    thing. I wrote down everything about my financial situation when I first got
    the [indecipherable].

THE COURT:        Well, then Im just going to dismiss the
    appeal.

THE APPLICANT: Why, your Honour.

THE COURT:        Okay, thank you.

B.

The Test for leave to appeal

[11]

Sections 131(1) and (2) of the POA

set out the
    test for determining whether leave to appeal should be granted:
:

131. (1) A
    defendant or the prosecutor or the Attorney General by way of intervention may
    appeal from the judgment of the court to the Court of Appeal, with leave of a
    judge of the Court of Appeal on special grounds, upon any question of law alone
    or as to sentence.

(2) No
    leave to appeal shall be granted under subsection (1) unless the judge of the
    Court of Appeal considers that in the particular circumstances of the case it
    is essential in the public interest or for the due administration of justice
    that leave be granted.

[12]

The
    principles for granting leave to appeal leave under s. 131 of the
POA
are set out in
Ontario (Labour)
    v. Enbridge Gas Distribution Inc.
, 2011 ONCA 13, per Watt J.A. at paras.
    33-35. There must be a question of law alone, the resolution of which may have
    an impact on the jurisprudence in a way that is of interest to the public at
    large, and that resolution must be essential, in the sense of material,
    important, in the public interest or for the due administration of justice:
R.
    v. Krukowski
(1991), 2 O.R. (3d) 155
(C.A.),
at
    para. 13.

[13]

However,
    where there has been a failure of natural justice, in the sense that the
    defendant has not been heard, leave may be granted:

R. v. Jamieson

(1981),
64 C.C.C. (2d) 550 (Ont. C.A.),
affd by

R. v. Jamieson
(1982), 66 C.C.C. (2d) 576 (Ont. C.A.).

C.

Analysis

(1)

Conviction Appeal

[14]

Operating
    a motor vehicle without insurance and surrendering false proof of insurance are
    strict liability offences. Upon proof of the facts, the accused will be
    convicted unless she can establish a due diligence defence.  As stated by the
    Supreme Court in
R. v. Sault Ste Marie
, [1978] 2 S.C.R. 1299, the
    court must consider what a reasonable person would have done in the
    circumstances. The Supreme Court noted at p. 1326 that the defence of due
    diligence will be available if the accused reasonably believed in a mistaken
    set of facts which, if true, would render the act or omission innocent, or if
    he took all reasonable steps to avoid the particular event.

[15]

In
    my view, the applicant has not satisfied the test for leave to appeal against
    conviction. A review of the record shows that the applicant cannot succeed on a
    due diligence defence.

[16]

The
    insurance company sent the applicant a registered letter informing her that her
    insurance would be canceled due to the non-payment of premiums. That letter was
    returned to the insurance company undelivered because she never collected it from
    the post office. The applicant did not explain why she failed to do so.

[17]

The
    record also shows that the insurance company made several attempts to withdraw
    money from the applicants bank account that failed due to a lack of funds.
    Again, the applicant offered no explanation as to why she did not remedy this
    situation. Simply put, a reasonable person in the applicants position should
    have been aware that there were insufficient of funds to pay her insurance,
    which jeopardized her coverage.

[18]

Nor
    do I think there was a failure of natural justice related to the trial. The
    applicant had notice of the trial and was obliged to attend or make other
    arrangements, which she failed to do.

(2)

Sentence Appeal

[19]

I
    would grant leave to appeal against sentence, for three reasons. The first has
    to do with the failure of natural justice before the appeal judge.

[20]

The
    applicants sentence appeal invokes ss. 57(3) and 59(2) of the POA. Section
    57(3) of the POA allows a court to make inquiries as to the defendants
    economic situation prior to sentencing. Section 59(2) of the POA provides that,
    in exceptional circumstances, a court may either suspend the sentence or impose
    a fine lower than the prescribed minimum where it would be unduly oppressive or
    not in the interests of justice.

[21]

The
    applicant was ordered to pay $12,500 in fines. To put this number in
    perspective, the record shows that the applicant earned a total of $4,440
    derived from social assistance payments in 2014 and $7,500 in 2013. Because the
    trial proceeded on an
ex parte

basis, no inquiry was made
    regarding the applicants ability to pay the fine and she received no
    opportunity to make submissions on sentence.

[22]

However,
    this opportunity ought to have existed at the applicants appeal. The
    transcript of the appeal shows that the applicant expressed her inability to
    pay the fine as ordered. The appeal judge clearly understood this, and
    essentially told the applicant several times that she was in fact asking to
    have her fine reduced. Perplexingly, rather than adjourn the proceedings the
    appeal judge initially proposed to permit the applicant to make submissions on
    sentence, the appeal judge summarily dismissed the entire appeal.

[23]

The
    appeal judge dismissed the appeal of a self-represented applicant of extremely
    limited financial means who was convicted at an
ex parte
trial,
    without making any inquiries or permitting the applicant to make submissions on
    a sentence which is almost three times her annual income. In doing so, the
    appeal judge did not consider whether this was an exceptional case which
    warranted the application of s. 59(2) of the POA.

[24]

Second,
    I am troubled by the imposition of two mandatory fines where the underlying
    delict is the absence of insurance in this particular case.

[25]

Ms.
    Scantlebury was charged and convicted under ss. 2(1)(a) and 2(3)(b) of the
Compulsory
    Automobile Insurance Act
. Section 2 reads, in part:

2. (1)
Subject to the regulations, no owner or lessee of
    a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle
    to be operated,

on a highway unless the motor vehicle is insured under a
    contract of automobile insurance.

[]

(3)
Every owner or lessee of a motor vehicle who,

(a) contravenes subsection (1) of
    this section or subsection 13 (11); or

(b) surrenders an insurance card for
    inspection to a police officer, when requested to do so, purporting to show
    that the motor vehicle is insured under a contract of automobile insurance when
    the motor vehicle is not so insured

Is guilty of an offence and is liable on a first conviction to
    a fine of not less than $5,000 and not more than $25,000 and on a subsequent
    conviction to a fine of not less than $10,000 and not more than $50,000 and, in
    addition, his or her drivers licence may be suspended for a period of not more
    than one year.

[26]

In
    this case, while the defence of due diligence would not have succeeded, there
    is no evidence that the applicant did not honestly believe she had insurance
    when she proffered the insurance card. It seems odd to double the fine where
    she would have been spared by simply refusing or failing to produce an
    insurance card.  Even more so because she was obliged by the law to surrender
    the card for inspection under s. 3(1) of the Act.

[27]

Third,
    some guidance on how the totality and the proportionality sentencing principles
    should be applied in these and similar circumstances would be useful.

[28]

I
    would grant leave to appeal sentence to decide whether the appeal judge erred
    in failing to consider the application of s. 59(2) of the POA and whether the
    applicant should have her sentence reduced or suspended as a result.

[29]

The
    Crown submits that leave to appeal should not be granted because there are
    alternative statutory remedies available to the applicant. Specifically, the
    Crown points to s. 69(15) of the POA which provides for relief in the event the
    applicant defaults in paying the fine.

[30]

This
    approach would not appear to be consistent with the objectives of sentencing.
    One of the guiding lights of the
Criminal Code
is that a sentence
    should be proportionate. Section 59(2) of the POA is the codification of this
    principle for non-criminal offences. The Crowns position would result in s.
    59(2) being ignored in favour of requiring defendants to first default on an
    unduly harsh fine before receiving relief. I would view this as an
    unsatisfactory outcome.

D.

Disposition

[31]

The
    motion for leave to appeal against conviction is dismissed and the motion for
    leave to appeal against sentence allowed.

P.
    Lauwers J.A.


