Two recent Ontario Provincial Offences Court cases deal with “airport scoopers.”
In most cities, airport fares are a primary source of income for taxi drivers. Taxis picking up fares at Toronto’s Pearson Airport must have the proper GTAA licensing permit. Without that permit, drivers can drop off fares at the airport, but may not legally pick up fare-paying passengers; that is considered “illegal soliciting” and is characterized as “an enormous problem” of long standing.
In R. v. Tariq Shaikh, 2013 ONCJ 33, the court determined that the Provincial Offences Act provides the statutory authority for reverse onus in a Trespass to Property offence, and this does not violate ss 11 (d) presumption of innocence provisions in the Charter.
Shaikh, a taxi driver, had previously been given a written notice of non-entry at the airport, when he was charged with trespassing in 2009. Two exceptions to the notice are made: to be at the airport as a traveller, and for pre-arranged employment purposes with proper authorization.
The defence had argued that the prosecution failed to negative the exception to the airport ban, and that the initial non-entry notice had not been issued for a valid reason.
Ontario Provincial Offences Court Justice of the Peace Quon relied on R. v. Schwartz (1989), 45 C.C.C. (3d) 97 (S.C.C.), which found that “ … where an accused person must establish that they fall within an exemption then there would be no danger that the accused person could be convicted, despite the existence of a reasonable doubt as to guilt, because proof of the exemption applying to the accused person would resolve all doubts in favour of the accused.”
The Legislature was clear in establishing ss. 47(3) of the Provincial Offences Act, Quon determined. “The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.”
In another recent “scooper” case, R. v. Khan, 2013 ONCJ 194 (CanLII), the Ontario Court of Justice found that, although it is not an offence to lie to the police in and of itself, giving a false name, even momentarily, does meet the actus reus of obstructing police.
A Peel Region officer looking for unauthorized taxi drivers thought that she recognized taxi driver Shazad Khan. He gave her a false name, which the officer spent less than two minutes looking up, before correctly identifying himself. Justice B. Knazan found Khan guilty.
In 1997, Peel Regional Police became the police service of jurisdiction at Toronto Pearson Airport. Officers issue trespass notices, carry photos of taxi drivers to whom those are issued, and charge drivers found in violation of the notice and rules.
In an earlier significant case of scooping, R. v. Singh, 2010 ONCJ 159 (CanLII), the court considered five charges against “scooper” taxi drivers, for offences under the HTA (Highway Traffic Act, R.S.O. 1990, CHAPTER H.8), POA (Provincial Offences Act, R.S.O. 1990, c. P.33), and Trespass to Property Act, R.S.O. 1990, c. T.21.
In that case, the questions of onus and constitutionality were determined in part by reference to R. v. Clouston (Ont. Dist. Ct.).
Convictions were entered on all counts.
R. v. Tariq Shaikh:
R. v. Khan: