R v Zembal

R. v. Zembal

[1987] O.J. No. 2417
Ontario Provincial Court - Criminal Division — Langdon Prov. Ct. J. | January 30, 1987

Background

Zembal's driver's licence had been suspended under section 29 of the Highway Traffic Act for failing to pay fines. On June 13, 1985, he travelled to Milton and paid all outstanding fines. The very next day, Friday June 14, a police officer stopped him while driving. Technically, his licence hadn't been reinstated yet — that didn't happen until the following Monday, June 17. He was charged under section 35 of the Highway Traffic Act for driving while under suspension.

This wasn't just any traffic ticket. A conviction would trigger a mandatory 6-month licence suspension under section 35(3), plus a minimum $250 fine. For Zembal, this was devastating — he needed his vehicle to get to work and to perform his job, and there was no other work he was qualified to do.

Issues

1. Was Zembal's licence actually "under suspension" when he was driving, given that he had paid all fines and was legally entitled to reinstatement?
2. If technically guilty, would the mandatory penalties violate his Charter rights given the circumstances?

Administrative Delay vs. Legal Suspension

Judge Langdon looked at the statutory scheme and found a critical distinction. Under section 29(4) of the Highway Traffic Act as it existed then, once fines were paid in full, "a justice of the court from which the order was issued shall issue an order to the Registrar directing the reinstatement of the driver's licence and the Registrar shall reinstate the licence." The key word: shall.

The court found that Zembal wasn't really "under suspension" anymore — he was in limbo due to administrative delay. All underlying reasons for the suspension had disappeared when he paid the fines. The judge noted that Zembal could theoretically have sought a mandamus order compelling the Registrar to reinstate his licence immediately. His status was better described as "pending reinstatement" rather than "under suspension."

The court concluded that the prosecution couldn't prove the actus reus (the guilty act) because Zembal's licence wasn't truly suspended when he was driving.

Charter Protection as Backup

Even if the technical offence had been proven, Judge Langdon was prepared to find a Charter violation. The mandatory penalties — a $250 minimum fine and 6-month suspension that would cost Zembal his livelihood — were "hideously disproportionate" to this technical breach during an administrative hiatus. During the delay between payment and reinstatement, "absolutely no legislative object is served by the continuing suspension." This would violate section 7 Charter rights to liberty and security of person, contrary to principles of fundamental justice.

Key Takeaway

Paying your fines creates an immediate legal entitlement to licence reinstatement, even if the paperwork hasn't caught up yet.

If you're caught driving after paying fines but before official reinstatement, you may have a strong defence based on your legal status being "pending reinstatement" rather than "under suspension." The courts recognize that administrative delays shouldn't create criminal liability when you've done everything required to restore your driving privileges.