Does a Prosecutor Have to Prove Lack of Insurance or Just Failure to Provide Proof of Insurance?
Generally, Once the Prosecutor Proves Failure to Provide Proof of Insurance the Person Charged Must Then Prove That Insurance Did Exist or Prove That Due Diligence Was Used In Attempt to Avoid Driving Without Insurance.
Understanding the Burden of Proof Required In a Driving Without Insurance Case Involves a Rarely Shifted Burden
When charged with driving without insurance, or another traffic violation, Walia Traffic Legal Services may be available to defend the charge. When preparing a defence, Walia Traffic Legal Services will review the alleged facts, the disclosure of evidence from the prosecution office, the applicable laws; and of course, any additional information you provide that may be relevant. When defending a driving without insurance case, the starting point for reviewing the law in Ontario, begins with the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 which is the law that mandates insurance coverage for those who operate an automobile, whether as an owner of the automobile or as a lessor of the automobile. Failure to carry properly valid insurance is a very serious charge whereas those convicted may bear significant penalties including fines from a minimum of five thousand ($5,000) dollars to a maximum of fifty thousand ($50,000) plus a twenty-five (25%) percent victim surcharge; and additionally, a driver's license suspension may be imposed for up to one-year. These potential penalties are specifically stated within section 2 of the Compulsory Automobile Insurance Act which says:
Compulsory Automobile Insurance
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.
“contract of automobile insurance”, with respect to that motor vehicle, means a contract of automobile insurance made with an insurer.
(3) Every owner or lessee of a motor vehicle who,
(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 driver’s licence may be suspended for a period of not more than one year.
The Compulsory Automobile Insurance Act also prescribes an offence for the failure to provide proof of insurance; and accordingly, a person may be charged and convicted despite actually having insurance coverage if the person failed to have, and provide, the proof of insurance coverage when required to do so. The proof of insurance is, generally, provided by showing a Certificate of Insurance, being the standard pink slip for your glovebox that your insurance company provides to you with your insurance policy document. This requirement is prescribed within the Compulsory Automobile Insurance Act wherein it is stated:
Operator to Carry Insurance Card
3 (1) An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,
(a) an insurance card for the motor vehicle; or
(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,
and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.
(3) A person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not more than $400.
Interestingly, especially whereas two different charges exist, a charge per section 2 of the Compulsory Automobile Insurance Act for failure to carry proper insurance and another charge per section 3 of the Compulsory Automobile Insurance Act for failure to provide proper proof of insurance when requested, that such would seem to raise the question as to what happens when a proof of insurance card (pink slip) is provided and is subsequently determined as invalid. This question, can be answered directly, or by analogy, from the recent case of R. v. Belleau, 2019 ONCJ 823 wherein it was said:
 The charge of operate a motor vehicle, while the owner, without insurance under s. 2(1)(a) of the Compulsory Automobile Insurance Act (CAIA) is a strict liability offence. Evidence that the owner operator provided no such proof of insurance coverage when requested establishes the prima facie offence. Once it is established that the driver was the owner of the car and could not produce proof of valid insurance upon demand the offence is complete. The owner/driver has a due diligence defence, but it is wrong in law to say that the Crown must prove the absence of insurance to the standard of proof beyond a reasonable doubt by leading evidence that no insurance company had coverage for the vehicle in question. In R. v. Zachariou 1999 CarswellOnt 6600 MacDonnell J., sitting as a provincial court judge at the time, put it this way:
In my opinion, the objective of placing the burden on the owner of a motor vehicle to establish the existence of insurance for that vehicle is a matter of substantial importance. The fundamental purpose of the CAIA is to ensure that all motor vehicles on the highway are covered by a contract of insurance. Imposing an obligation on the owner to obtain insurance ensures that when accidents happen, as all too frequently they do, compensation will be available — especially for those who are not at fault. Without such a requirement, the personal and financial consequences of motor vehicle accidents would often be devastating. But without a mechanism to enable the authorities to quickly ascertain whether a particular vehicle is insured, the objectives of the CAIA would be seriously undermined. Requiring the owner of a motor vehicle to establish that the vehicle is covered provides the necessary mechanism to prevent that from happening. In my view, placing the burden of proof in relation to the existence of insurance on the defendant serves an important social objective and satisfies the first part of the Oakes test.
See also R. v. Ward 2015 ONCJ 369 (CanLII).
 Her Worship therefore properly found that the Crown had proven the key elements of the offence. Mr. Belleau was driving a car he owned and when asked to provide proof of insurance he couldn’t. When Her Worship found that the prosecution had to prove affirmatively the complete absence of insurance she fell into error. There is no such requirement. Once the demand is made, the owner of the vehicle must prove the existence of insurance, or due diligence on the point, see R. v. Hussein 2003 CarswellOnt 3638 at para. 7 (De Filippis J.). This was an ex parte trial. There was no evidence lead which could be characterized as evidence of due diligence.
What is unique about the law relating to the requirement to carry insurance is that the onus of proof appears reversed whereas the presumption is that where there is failure to provide proof of insurance, lack of insurance is presumed and the operator of the automobile is put to the onus of proving that insurance did exist, or proving a lack of awareness in the absence of insurance coverage and a due diligence effort to avoid the absence of insurance coverage. Contrary to usual rules of law that require the prosecution to prove the case beyond a reasonable doubt, in matters of failure to carry insurance, the ultimate burden of proving the existence of insurance falls upon the operator.
Of intrigue within the Belleau case where the circumstance differed, is the question of what happens where a proof of insurance card is provided upon demand of a police officer; however, the police officer chooses to disbelieve the validity of the card and lays a failure to carry insurance charge. In such a circumstance, where it is proven that an insurance card was provided, would the obligation to prove validity still fall upon the operator? The answer to this question does appear stated within the Belleau case despite differing factual circumstances wherein it is said at paragraph 7, "Once the demand is made, the owner of the vehicle must prove the existence of insurance ...". Accordingly, it seems that if an operator is confronted with demands for proof of insurance, and the operator provides an insurance card that is believed invalid, the operator bears the duty of gathering and providing evidence to verify that the insurance card was valid.
While the general rule of, "Innocent until proven guilty beyond a reasonable doubt", usually puts the onus upon the prosecution to prove that the law was broken, in matters of failure to carry proper insurance coverage, it appears that the operator of an automobile may be required to provide more than just an insurance card and instead also hold the burden of proving that an insurance card is, or was at the time, valid.Learn More About
Driving Without Insurance