





CITATION:
R. v. Ade-
Ajayi
, 2011 ONCA 192



DATE: 20110310



DOCKET: C53225



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Doherty and Blair JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



Alex Ade-Ajayi



Appellant



Alex Ade-Ajayi, in person



Joanne Stuart, for the Crown



In-Writing appeal heard the week of March 7, 2011.



On appeal from the order of Justice B. Cavion of the Ontario
          Court of Justice, dated October 28, 2010, dismissing an appeal from the fine imposed
          by Justice of the Peace C. Flaherty on February 18, 2004 following a guilty
          plea for driving without insurance.



By the Court:



Overview

[1]

The appellant seeks an order suspending the $5,000 fine
    imposed on him by Justice of the Peace C. Flaherty on February 18, 2004, following
    a guilty plea for driving without insurance, the appellant being the owner or
    lessee of the vehicle in question.  On
    October 28, 2010, Justice B. Cavion of the Ontario Court of Justice dismissed
    his sentence appeal.  With the consent of
    the Crown, leave to appeal from that decision was granted by Sharpe J.A. on
    January 21, 2011.

[2]

A $5000 fine is the minimum fine for a first offence by
    an owner operating a motor vehicle while uninsured:
Compulsory Automobile

Insurance
    Act
, R.S.O. 1990, c. C.25,
s
. 2(3).

[3]

The court has jurisdiction, however, to reduce or
    suspend a fine imposed in such circumstances pursuant to s. 59(2) of the
Provincial Offences Act
, R.S.O. 1990, c.
    P.33, which reads as follows:

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.

Background

[4]

The appellant arrives in this Court, on this appeal,
    after a circuitous voyage.

[5]

In 2002 he was charged, as a result of two separate
    instances, with operating a motor vehicle while uninsured, being the owner or
    lessee of the vehicle.  The appellant was
    relatively newly-arrived in Canada at the time.

[6]

He pleaded not guilty to the first of these charges on
    the basis that the vehicle ownership had been transferred to his
    girlfriend.  He was not able to provide
    evidence to that effect, however and was convicted and fined.  It is important to the sequence of events
    that followed that this conviction was subsequently overturned on appeal, in May
    2007, on the basis that the appellant was not, in fact, the owner of the
    vehicle at the relevant time.

[7]

In the meantime, the appellant had pleaded guilty to
    the second charge referred to above.  He
    was sentenced to pay a fine of $5000.  The
    Crown accepts that this plea was treated as a second offence, because the
    appellants first conviction had not, at that stage, been overturned.  A second offence calls for a minimum fine of
    $10,000.  In the circumstances, the Crown
    sought a fine of $7500.  The Justice of
    the Peace imposed a fine of $5000.

[8]

The appellant appealed this second fine, but his appeal
    was dismissed at the first level.  He
    then appealed to this Court, alleging that he had not received a fair hearing
    and that he had been sentenced on the basis of the now-overturned prior
    conviction.  In February 2009, with the
    Crowns consent, this Court allowed the appeal and sent the matter back to the
    Ontario Court of Justice to have the sentence appeal heard anew.

[9]

Cavion J. presided over the re-hearing of the sentence
    appeal on October 28, 2010.  He dismissed
    it on the basis that the appellant had made no payments towards the fine in the
    intervening 6 years and that the amount of the fine was appropriate in the
    circumstances (there had been an accident, in which the appellant was at fault,
    and it was important to uphold the importance of motor vehicles being insured
    while on the roads).  However, he did not
    address the point on which the matter had been sent back for re-hearing,
    namely, the significance, if any, of the now-overturned prior conviction.  This left the appellant with the impression again
    that he had not received a fair hearing.  He appealed once more to this Court.  However, in consultation with duty counsel
    during that process, he realized that he had, in fact, not been sentenced as a
    second offender, but that the $5000 fine was the minimum imposed by statute for
    a first offence for driving while uninsured.

[10]

The appellant now pursues the appeal on the basis that
    this Court should exercise its discretion to reduce the fine, or suspend it, in
    light of his financial situation and the hardships caused to him by the various
    convoluted turns in his appeal process (which, among other things, cost him $2,600
    in paralegal fees).

Disposition

[11]

Given the history of the matter, the Crown, as noted,
    consented to the granting of leave to appeal and now consents to the appeal
    being allowed.  It is the Crowns
    position, however, that the fine should not be suspended, but rather reduced to
    $2500.

[12]

In the particularly unusual circumstances of this saga,
    we accept the Crowns submission.

[13]

The fines imposed under s. 2(3) of the
Compulsory Automobile Insurance Act
are
    designed to underscore the importance of every vehicle operated on the public
    roadways of Ontario being insured:
Regina
    v. Zwicker
(1994), 17 O.R. (3d) 171 (C.A.).  The idea behind the high level of minimum fines is to make it more
    financially onerous to offend the legislation than to bear the required cost of
    insurance premiums: see
R. v. Baritz
(2006), 37 M.V.R. (5th) 121, at para. 31 (Ont. C.J.).  A reduction in the minimum fine should not
    lightly be imposed, therefore.  The court
    may reduce or suspend a minimum fine, however, where it is of the opinion that
    exceptional circumstances exist so that to impose the minimum fine would be
    unduly oppressive or otherwise not in the interests of justice:
Provincial Offences Act
, s. 59(2).

[14]

Here, the appellants financial resources are limited,
    at best.  While he has been employed in
    the past as a welder and forklift driver, he suffered a welding injury to his
    eye in 2008 and can no longer work in that capacity.  He is seeking disability support from the
    Ontario Disability Support Program, and is currently enrolled in an aviation
    management program at Georgian College in an effort to retrain himself.  He is married  although he and his wife are
    in the process of obtaining a divorce  and has two small children to
    support.  Currently, student loans are
    his only source of income.  Nevertheless,
    his retraining prospects create the potential for an ability to pay the fine,
    or some portion of it, over time.

[15]

Appeals to this Court on matters under the
Provincial Offences Act
are very much
    the exceptions, and particularly so with respect to sentence.  Trial judges must decide whether the
    circumstances of a particular case call for something less than the minimum
    fine.  This Court will not second guess
    that assessment absent factors that meet the leave to appeal criteria set out
    in s. 139 of the
Provincial Offences Act
.

[16]

However, in this case, as the Crown points out, it
    appears that the original sentencing judge, dealing with what was then thought
    to be a second offence, intended to impose a fine that was half the minimum,
    namely $5000 instead of $10,000.  We
    agree with the Crown that, given the present landscape, a reduction to $2500
    strikes an appropriate balance between the individual circumstances of the
    appellant and the legislative purpose behind the significant minimum fines
    called for in the
Compulsory Automobile
    Insurance Act
.  In the particularly
    unusual circumstances of this case a reduction to $2500 is in the interests of
    justice.

Disposition

[17]

We accordingly allow the appeal and reduce the penalty
    imposed to a fine of $2500.  As the
    Justice of the Peace did, we accord the appellant a period of one year from
    this date to make the payment.

D. OConnor A.C.J.O.

D. Doherty J.A.

“R.A. Blair J.A.”

RELEASED:  March 10,
    2011


