COURT FILE NO. 2111-999-11-3831 and 10-3426 DATE: 2014-06-06 Citation: R. v. Pizzacalla , 2014 ONCJ 776 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Appellant — AND — RICKY PIZZACALLA Respondent Before Justice P.H. Wilkie Heard on January 14, 2014 Reasons for Judgment released June 6, 2014 Mr. N. Isak ............................................................... counsel for the Crown, the Appellant Mr. R. Pizzacalla ........................................................................ in Person, the Respondent WILKIE J.: OVERVIEW [ 1 ] These are two appeals by the Crown under

Part III of the Provincial Offences Act (the “ POA ”) from the Respondent’s acquittals following two separate trials on various charges under the Highway Traffic Act (the “ HTA ”) and the Compulsory Automobile Insurance Act (the “ CAIA ”). [ 2 ] All charges relate to certain duties and obligations that these Acts impose upon persons operating a motor vehicle, including the requirements that they be insured and licensed.

In both instances the Respondent’s acquittals rested on the determination that he was not in fact operating a motor vehicle, but rather a “power assisted bicycle”, an electrically powered device commonly referred to as an e-bike, which is specifically exempted from the definition of “motor vehicle” and carries its own definition under the HTA . [ 3 ] It is common ground that e-bikes do not have a VIN or registration number and cannot be licensed.

The operator is not required to have a driver’s licence or carry vehicular insurance. [ 4 ] There was no question the investigating officers in each instance thought that the Respondent was operating a vehicle that was designed and sold as a power-assisted bicycle.

What caught their attention and led to the charges however, was that at the moment of operation in each instance, at least one of the pedals was missing so that the muscular power function of the vehicle was not operable. [ 5 ] The Crown’s position was that without an operable pedalling function, the Respondent’s bike or scooter became a motor vehicle, as defined by the HTA , requiring it to be licensed and requiring the operator, amongst other things to be licensed and insured.

With the pedals removed or disabled, it was argued that the vehicle no longer complied with the definition of a “power-assisted bicycle” and was no longer exempted from the definition of “motor vehicle” and became, in the words of the

section “any other vehicle propelled or driven otherwise than by muscular power.” [ 6 ] Both courts below rejected this position and dismissed the charges, finding that in the circumstances of each case, the Respondent’s vehicle, as modified, remained a power- assisted bicycle. [ 7 ] For the reasons that follow I would dismiss both appeals. In my view the evidence in both instances was capable of supporting a finding that the Respondent was operating a power-assisted vehicle and not a motor vehicle.

I am not satisfied that either Court erred in law in declining to classify the Respondent’s vehicle as a “motor vehicle”. BACKGROUND The First Trial [ 8 ] The first appeal is from the Respondent’s acquittal after trial before Justice MacPhail on May 18, 2012 on three charges that arose from a traffic stop on July 13, 2011.

[ 9 ] He was alleged to be 1) operating a motorcycle without wearing a helmet as provided for in the regulations, contrary to

section 104 of the HTA , 2) operating a motor vehicle without insurance , contrary to

section 2 of the CAIA , and 3) operating a motor vehicle without displaying a licence for the vehicle , contrary to

section 7 of the HTA . [ 10 ] A fourth count of drive while suspended under

section 53 of the HTA, which also would have required a finding that he was operating a motor vehicle and not an e-bike, was stayed at the request of the Crown. This was no doubt because by the time of this trial the Respondent had already been convicted of driving while prohibited under the Criminal Code arising from this incident and based on the same suspension, a finding which turned on the broader definition of “motor vehicle” under the Criminal Code . The Evidence [ 11 ] The defendant represented himself at the trial.

The only evidence came from the arresting officer called by the Crown, who testified that while on traffic enforcement he saw the defendant operating what was described and referred to throughout his testimony as “an e-bike”. However it had only one pedal attached. He saw the rider start from a stop position without utilizing the pedals and conducted a traffic stop in order to inspect the vehicle and the helmet he was wearing. [ 12 ] What the officer found was that the attached pedal was tilted at a 45-degree angle and seemed to be seized in that position.

He turned it by hand and found that it moved loosely and did not make the wheels turn. The missing pedal he subsequently determined was stored away in a trunk or seat compartment at the back of the bike.

The defendant told the officer he had taken it off because he was afraid it would be stolen. [ 13 ] As a result of his observations and inspection the officer testified that he was satisfied that the vehicle was not able at that time to be propelled by muscular power and he charged the defendant under the HTA and the CAIA . [ 14 ] The evidence relating to the substantive aspects of the charges, that is the nature of the helmet the defendant was wearing, and whether the vehicle was licensed and insured, was so sparse that in my view the charges could all have been dismissed for want of sufficient proof of those matters alone. [ 15 ] Regarding a helmet the officer noted that the defendant was wearing one which he described as “indicative of a bicycle helmet”.

Apart from the colour and the fact that it had the words “super cycle” on it there was no other description offered and no evidence led about how this helmet differed, if at all, from that prescribed for a motorcycle by Regulations under the Act. [ 16 ] There was no evidence directed specifically towards the issue of insurance. The officer said that the defendant identified himself verbally with a date of birth. On several occasions the officer said that the defendant provided him with “no documentation or any form of driver’s licence” and surrendered no documentation for the vehicle.

However there was no mention during his testimony in chief about insurance, or whether he asked the defendant to produce proof of same. The only evidence that touched on the issue came during cross when the defendant asked the officer if he had requested of him licence, insurance and registration, the best the officer could say was that “he probably did”. [ 17 ] There was no direct evidence as to the presence or absence of a licence plate affixed to the vehicle.

The closest the evidence came to inferentially touching on this issue was testimony that the officer accepted the defendant’s word that the vehicle belonged to him. [ 18 ] However, the sufficiency or otherwise of the evidence in these matters was not touched upon in submissions nor referred to by the court in its judgment, the only issue addressed being the threshold one of whether the vehicle in question was a motor vehicle.

The Decision [ 19 ] The court noted that the evidence was that when stopped, the defendant was operating what the officer described as an e- bike, a bicycle powered by an electric motor, but one which, given the state of the pedals, including the complete removal of one of them, could not at the time of the traffic stop be operated by muscular power. [ 20 ] The trial judge assessed the legislative scheme established under the HTA to deal with motor vehicles and power-assisted bicycles and motor-assisted bicycles and rejected the Crown position that an e-bike necessarily became a motor vehicle if it was operated on a roadway with its muscular power function inoperative or disabled. [ 21 ] In this regard he found the differences in the legislative treatment between a “motor-assisted bicycle” and a “power- assisted bicycle” to be instructive. [ 22 ] He deemed it significant that the former is included as part of the definition of “motor vehicle” unless otherwise exempted under the Act while the latter, is specifically exempted under the definition of “motor vehicle” and is separately defined. [ 23 ] He also noted what he deemed to be an important distinction between the definition of “motor-assisted bicycle” and “power-assisted bicycle” when it came to the pedals.

The former requires that it be fitted with pedals that are “operable at all times” while the latter requires only that it have operable pedals affixed to it and that it be capable of being propelled by muscular power. He found that in this case while the muscular power capability was not engaged at the very moment of the police stop, the vehicle retained the potential for it to be readily restored. [ 24 ] The failure of the legislation to require that the pedals be operable at all times he found consistent with the absolute

exclusion of the power-assisted bicycle from the “motor vehicle” definition. [ 25 ] The trial judge approached the case from the point of view that it was the Crown’s burden to prove the Respondent was operating a motor vehicle and concluded on this evidence that they had not done so.

The Second Trial [ 26 ] The second appeal is from the Respondent’s acquittal after trial before Justice Dudar on January 30, 2013 on two charges that arose from a traffic stop on February 22, 2010. [ 27 ] In this instance the defendant was charged with operating a motor vehicle without insurance, contrary to the CAIA and driving a motor vehicle without plates, contrary to the HTA . He was once again self-represented. The Evidence [ 28 ] Once again the Crown called a single witness, the police officer who stopped and charged the accused.

The defendant did not testify but called a witness who owned and operated a store that sold vehicles like the one he was operating. [ 29 ] The evidence was that on the day in question the defendant was seen travelling down the street at about 15 km/h, operating what the officer described as his “power-assisted bicycle”. The officer, who was part of a pilot project targeting these bicycles, noticed there were no pedals attached to it and therefore at that point not capable of being operated by muscular power. He stopped the defendant to investigate.

He reported that the vehicle was a blue and white 0L02 Sports E-Cycle. Asked to further describe it he said it looked like a scooter, and was battery operated not motor operated.

It had no licence plate. [ 30 ] The officer knew that the operators of power-assisted bicycles were not required to register or insure them and that it was not possible to obtain a licence for them, but obviously had been instructed that without pedals attached and therefore without means to propel the vehicle by muscular power, these vehicles were to be treated like a motor vehicle. [ 31 ] The defendant was asked to produce the ownership and insurance for the vehicle to which he replied that it was not required.

As the officer was in the process of writing up the Provincial Offence tickets the defendant retrieved two pedals from a compartment or storage area under the seat and attached them to the bike. The officer testified that he had intended to have the vehicle towed, but with the pedals reattached he allowed the defendant to ride away. [ 32 ] On this trial the defence called the owner of a local retail outlet which sold power- assisted bicycles to give evidence. He confirmed that he sold the defendant a model with detachable pedals which simply snapped off and on by hand.

He also confirmed that even if attached and operable, the bike can be operated without resort to the pedals. The Decision [ 33 ] The trial judge produced written reasons which were thoughtful and comprehensive. He succinctly and accurately summarized the facts and the position of the parties. [ 34 ] He addressed the question of the onus of proof.

While determining despite some reservations, that section 47(3) of the Act casts the burden on the Respondent to prove the vehicle was a power-assisted bicycle, he also found that the evidence did not lead to any real contest on that issue, since the prosecution was premised on the acceptance that the vehicle in question was an e-bike that had been modified, which of course was the way the investigating officer described it in his evidence. [ 35 ] The court went on to then tackle the essential issue at hand which is whether a power-assisted bicycle retains its status as an exemption to a motor vehicle when operated with its pedals removed or disabled.

Or to put it another way, with its muscular power function inoperable, does it become a motor vehicle? [ 36 ] The trial judge determined that it did not. [ 37 ] He too analyzed the relevant legislation making some of the same comparisons and distinctions that gave rise to the same interpretive uncertainties found by Justice MacPhail on the first trial. [ 38 ] Central to his reasoning was the application of the principles set out in R. v. Van Berlo ( 2010 ONCA 242 ) to the present situation.

In that case the Court of Appeal was called upon to determine if certain changes made to a motor vehicle were substantial enough to turn it into a self-propelled instrument of husbandry. The question, the court determined, was whether the modifications viewed objectively were significant enough to transform the essential function or character for that specific use, although it could retain some limited capacity for other functions.

Applying this test to whether the Respondent had transformed his e-bike to a motor vehicle by removing the pedals and placing them where they were immediately accessible for quick reattachment, the trial judge found that he did not. [ 39 ] In addition, bearing in mind that Regulations were in place to deal with other modifications of these vehicles by prohibiting their operation, the trial judge could not accept that it was the intent of the legislation that this modification involving the pedals, turned the item into a motor vehicle and rendered the operator liable, amongst other things, to a minimum $5,000.00 fine for not having insurance. [ 40 ] In conclusion he found that this was a defective or incomplete power-assisted bicycle that remained equipped with pedals and capable of being propelled solely by muscular power and as such remained exempted from the definition of motor vehicle.

ANALYSIS

The Legislation [ 41 ] The relevant statutory provisions include the following. [ 42 ]

Section 1 of the HTA includes the following

definitions: “motor-assisted bicycle” means a bicycle, (

a) that is fitted with pedals that are operable at all times to propel the bicycle, (

b) that weighs not more than fifty-five kilograms, (

c) that has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel, (

d) that has an attached motor driven by electricity or having a piston displacement of not more than fifty cubic centimetres, and (

e) that does not have sufficient power to enable the bicycle to attain a speed greater than fifty kilometres per hour on level ground within a distance of two kilometres from a standing start; (“cyclomoteur”) “motor vehicle” includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; (“véhicule automobile”) “power- assisted bicycle” means a bicycle that, (

a) is a power-assisted bicycle as defined in subsection 2 (1) of the Motor Vehicle Safety Regulations made under the Motor Vehicle Safety Act (Canada), (

b) bears a label affixed by the manufacturer in compliance with the definition referred to in clause (a), (

c) has affixed to it pedals that are operable, and (

d) is capable of being propelled solely by muscular power; (“bicyclette assistée”) [ 43 ]

Section 2 of the Motor Vehicle Safety Regulations , pursuant to the Motor Vehicle Safety Act (Canada) , S.C. 1993 c. 16 , defines a “power-assisted bicycle” as follows: “power-assisted bicycle” means a vehicle that: (

a) has steering handlebars and is equipped with pedals, (

b) is designed to travel on not more than three wheels in contact with the ground, (

c) is capable of being propelled by muscular power, (

d) has one or more electric motors that have, singly or in combination, the following characteristics: (

i) it has a total continuous power output rating, measured at the shaft of each motor, of 500 W or less, (ii) if it is engaged by the use of muscular power, power assistance immediately ceases when the muscular power ceases, (iii) if it is engaged by the use of an accelerator controller, power assistance immediately ceases when the brakes are applied, and (iv) it is incapable of providing further assistance when the bicycle attains a speed of 32 km/h on level ground, (

e) bears a label that is permanently affixed by the manufacturer and appears in a conspicuous location stating, in both official languages, that the vehicle is a power-assisted bicycle as defined in this subsection, and (

f) has one of the following safety features, (

i) an enabling mechanism to turn the electric motor on and off that is separate from the accelerator controller and fitted in such a manner that it is operable by the driver, or (ii) a mechanism that prevents the motor from being engaged before the bicycle attains a speed of 3 km/h; ( bicyclette assistée ) [ 44 ] Ontario Regulation 369/09 deals with power-assisted bicycles as follows:

This is the English version of a bilingual regulation. Maximum weight 1. The unladen weight of a power-assisted bicycle must not be more than 120 kilograms. O. Reg. 369/09 , s. 1. Wheel width, diameter 2.

(1) The wheels of a power-assisted bicycle must not be less than 35 millimetres wide. O. Reg. 369/09, s. 2 (1).

(2) The diameter of the wheels of a power-assisted bicycle must not be less than 350 millimetres. O. Reg. 369/09, s. 2 (2). Battery and motor 3.

(1) The battery and motor of a power-assisted bicycle must be securely fastened to the bicycle to prevent them from moving while the bicycle is in motion. O. Reg. 369/09, s. 3 (1).

(2) The motor of a power-assisted bicycle must disengage if pedalling ceases, the accelerator is released or the brakes are applied. O. Reg. 369/09, s. 3 (2). Electric terminals 4. All electric terminals on a power-assisted bicycle must be completely insulated and covered. O. Reg. 369/09, s. 4. Brakes 5. The brakes of a power-assisted bicycle must be capable of bringing the bicycle, while being operated at a speed of 30 kilometres per hour on a clean, paved and level surface, to a full stop within nine metres from the point at which the brakes were applied. O. Reg. 369/09, s. 5. No modifications 6.

A power-assisted bicycle must not be ridden on, driven or operated if it has been modified after its manufacture in any way that may result in increasing its power or its maximum speed beyond the limits set out in clause (

d) of the definition of "power-assisted bicycle" in

section 2 of the Motor Vehicle Safety Regulations made under the Motor Vehicle Safety Act (Canada). O. Reg. 369/09, s. 6. Good working order 7. A power-assisted bicycle must not be ridden on, driven or operated unless it is in good working order. O. Reg. 369/09, s. 7. 8. Omitted (provides for coming into force of provisions of this Regulation). O.

Reg. 369/09, s. 8. [ 45 ] The Criminal Code of Canada defines a “motor vehicle” as follows: “motor vehicle” « véhicule à moteur » “motor vehicle” means a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment; [ 46 ] Under the CAIA “motor vehicle” has the same meaning as it does in the HTA . Discussion [ 47 ] The position of the Appellant as stated in their Factum is that the trial judges erred in law in failing “to classify the vehicles in each of the trials as motor vehicles”.

The argument that they ought to have done so, based on the evidence before them, is based on two propositions. [ 48 ] The first is that the evidence clearly showed that the Respondent’s vehicle at the time of the police stop did not in all respects meet the definition of a “power-assisted bicycle”. Two key elements were said to be missing. It did not have “affixed to it pedals that were operable” as required by subsection (

c) and was not “capable of being propelled solely by muscular power” as per subsection (d). [ 49 ] The second proposition is that once the vehicle no longer fully complies with the definition of “power-assisted bicycle”, it loses its exempted status and becomes just another motor vehicle. [ 50 ] I agree that the Respondent’s vehicle in each instance, without a pedalling function was not complying with all aspects of the definition, but I am not satisfied that the courts below erred in law in refusing to find the vehicle thereby reverted to a motor vehicle. [ 51 ] It should first be noted that there is an argument to be made that the Respondent’s vehicles, even as modified, still met the definition of an e-bike.

Both courts considered whether the definition, when placed in the context of the legislative scheme as a whole,

could be interpreted broadly enough to include a vehicle with pedals temporarily removed or disabled.

Both allowed that there might be some ambiguity as to whether the vehicle as configured in these two instances still fit the definition. [ 52 ] In this regard both trial courts saw no reason not to ascribe to the word “capable”, some aspect of future as well as present capability, particularly when, as here, the existence and proximity of the pedals and the potential for them to be reattached meant that the potential for muscular power was not remote. [ 53 ] Both courts not unreasonably in my view drew support for this position from a comparison with the definition of a “motor-assisted bicycle” which required not only the pedals be operable but also that they be “operable at all times”, giving rise to whether the failure to specify as much with the e-bike was a deliberate omission of significance.

No doubt if the legislative intent was to confine the notion of “capability” to the present tense only, this could have been accomplished by requiring operable pedals to always be attached. [ 54 ] Turning to the requirement that the pedals be “affixed” to the bicycle, here too some ambiguity about how to interpret that word arose, this time from paragraph (

a) of the definition which incorporates the definition of “power-assisted bicycle” found in the Motor Vehicle Safety Regulations made under the federal Motor Vehicle Safety Act . That definition, which also requires that the vehicle be “capable of being propelled solely by muscular power”, does not mandate pedals be “affixed” but merely that the vehicle be “equipped” with pedals, a notion which would seem to fall short of necessarily requiring them to be actually attached at all times.

On the evidence in both these trials, it would be hard to argue that the Respondent, even without both pedals attached, was not complying with this requirement. [ 55 ] Indeed this proved important to Justice Dudar, who determined that the Respondent had established that his vehicle was a power-assisted bicycle in that it was “equipped with pedals” and was “capable of being propelled solely by muscular power”. [ 56 ] To further muddy the waters it might be noted as well that there are other aspects of the federally incorporated definition which contemplates that vehicles that operate without the need for any pedalling function at all will still meet the definition of “power- assisted bicycle”. [ 57 ] This can be seen from paragraphs (d) (ii) and (iii) of the legislation which provides for two types of vehicles, one that requires the use of muscular power for the motor to be engaged and the other, instead of the pedals, to use what is called an accelerator controller to get it going.

In the latter situation, while the vehicle would be equipped with pedals and capable of being propelled by muscular power, it would still be a power-assisted bicycle even if it was driven without resort to pedalling at any time. [ 58 ] This has been the case since 2001 when Regulations under the Motor Vehicle Safety Act were amended to remove power- assisted bicycles from the limited-speed motorcycle subclass and thereby relieve them from having to comply with the same federal safety standards that applied to full sized motorcycles.

As was noted in the commentary to the Regulations in the Canada Gazette on March 29, 2001, Initially the amendment "was limited to power-assisted bicycles that require muscular power in order to engage the motor. Partly in response to the numerous comments requesting that the Department do so, the scope of this amendment was broadened to include power- assisted bicycles that use an accelerator control to engage the motor, and thus do not have to be pedalled. There were two main reasons for this decision.

The first was that an exhaustive study of electric bicycles conducted by the Centre d’expérimentation des véhicules électriques du Québec (CEVEQ) showed that these two types of power-assisted bicycles offer comparable levels of safety. The second reason was that, in accordance with its 2000 Sustainable Development Strategy, it is the Department’s policy to promote and encourage the use of alternative modes of transportation that can reduce traffic congestion in urban areas, while also protecting the environment.

Both types of power-assisted bicycles represent viable alternatives, with some users even preferring the power-assisted bicycle equipped with an accelerator control as a means of transportation to and from work. [ 59 ] Given this, one might be inclined to interpret the requirements under the federal definition that the vehicle be “equipped with pedals” and “capable of being propelled by muscular power” to include situations where there was a potential, as opposed to a present capability, of using the pedals, which of course is what the Respondent argued here fit the facts before the courts regarding his vehicles. [ 60 ] The Province of course is entitled to set any technical requirements they choose for these vehicles including specifications that are more restrictive than those in the “federal” portion of the definition.

Having said that, when attempting to resolve any ambiguity in the wording of the overall definition, it is perhaps of significance that the Province has chosen to adopt and incorporate as part of the definition of these vehicles, a federal definition which is at odds with the notion that the use of pedals is a necessary essential characteristic of their operation. [ 61 ] The Crown’s position is that these attempts to massage and broaden the words of the definition are inappropriate, that words such as “equipped”, “operable”, “capable” and “affixed” which define an exception under the Act ought to be given a narrow interpretive approach so as not to undermine its overall object and purpose which is to ensure the safety of those operating these vehicles as well as the public.

See Van Berlo ( supra ). Giving these words a narrow

interpretation they say, means that they must describe the vehicle at the time of actual operation and not in terms of its potential to be reconfigured for some future operation. [ 62 ] While there are persuasive aspects to many of the arguments referred to above arising in part from what appear to be inconsistencies between different parts of the definition, it seems to me that the Respondent’s vehicles at the very least did not comply with the requirement that the pedals be “affixed”.

It must be conceded that giving that word its plain and ordinary meaning requires a “power-assisted bicycle”, to have both pedals actually attached if it is going to comply with all aspects of the legislation. [ 63 ] That being so one must then consider the second proposition upon which the Crown's position rests, namely that a vehicle without operable pedals “affixed” ceases thereby to get the benefit of the e-bike exemption and must automatically revert as it were, to “any other vehicle propelled or driven otherwise than by muscular power” and hence a motor vehicle.

[ 64 ] I would note that in their written submissions the Crown went so far as to say that any deviation of any sort from the specifications set out in the definition, (and not just those dealing with the muscular power function,) would mean that the vehicle would no longer fit the definition and be considered a motor vehicle. To illustrate the overreach of this argument one need only note that one of the specifications in the definition is that the vehicle bear a label from the manufacturer.

It cannot in my view be seriously asserted that the operator of a power-assisted bicycle, meeting all technical and mechanical specifications, would be deemed instead to be operating a motor vehicle and exposed to prosecution for among other things, not having insurance, because the manufacturer’s label had come off. [ 65 ] Although the language in each case was different, the essence of both decisions to acquit the defendant lay in the refusal to accept that the absence of a presently operable pedalling function caused the bike to become “any other vehicle propelled or driven otherwise than by muscular power.” Both courts determined that in the circumstances before them the vehicle remained in essence an e- bike, a two-wheeled vehicle, with handlebars to steer, powered by an electric motor and equipped with a pedalling function. [ 66 ] In my view neither court erred in law in doing so for the following reasons. [ 67 ] First, I agree with Justice MacPhail, who emphasized in his reasons the importance of the fact that a power-assisted bicycle was specifically exempted from the definition of “motor vehicle”. [ 68 ] The Crown’s argument in essence is that power-assisted bicycles driven without resort to muscular power must be caught by the catch-all

section of the definition of “motor vehicle”. Yet that definition recognizes that there is a class of vehicles, power-assisted bicycles included among them, that are quite capable of being driven without muscular power, which nonetheless are going to be exempted from the definition and not considered motor vehicles. Indeed it is only because these vehicles have that capability that they need to be exempted.

It would be illogical in my view, to bring them back within the definition of “motor vehicle” because they possess the very quality that earned them the exemption in the first place. [ 69 ] Second, I agree with Justice Dudar that support for this conclusion is found, in the reasoning applied by the Court of Appeal in R. v. Van Berlo ( supra ). In my view removing the pedals or a pedal so as to temporarily disable the muscular power function, especially in circumstances where they are readily available for reattachment, is not enough to transform the essential function of the item for use as a motor vehicle.

It also seems to me contrary to the finding in Van Berlo that the classification of any vehicle can turn a matter as ephemeral as the snapping on or off by hand of a single pedal. [ 70 ] Indeed I find it difficult to accept the Crown’s assertion that the absence of pedalling function alone, without more, alters the fundamental classification of this vehicle when the federal portion of the definition specifically includes a class of these vehicles that require no muscular power function to operate. [ 71 ] Furthermore, it seems to me that the Legislature would have to speak much more clearly than it has to infer an intention for a deviation of this sort from the definition to displace an exemption from the “motor vehicle” definition.

After all, Regulations have been enacted to create offences where persons would deliberately modify one of these vehicles in other ways which would have the effect of taking it outside the definition. [ 72 ] An example is Regulation 369/09 which prohibits under penalty of a fine the operation of any e-bike with an electric motor that has been adjusted or changed to exceed specifications thereby permitting it to go faster.

The specifications regarding the motor are built right into the definition of “power-assisted bicycle” meaning that with modifications to increase the speed, the vehicle would no longer be in compliance. Tellingly, even with an obvious safety issue such as this, the legislative response is not to deem the item a “motor vehicle”, but to prohibit its operation. [ 73 ] The Regulations, do not address the removal or disabling of the pedals but there is no reason why they could not do so. [ 74 ] It seems to me as well that these matters must be assessed for their practical effect.

It makes no sense from the point of view of effective enforcement or from the requirement of owners and operators to be in compliance, that a vehicle’s status could be switched back and forth so readily, particularly when one considers the extremely serious consequences for what, as in this case, could be a temporary designation or classification as a motor vehicle. [ 75 ] While it is not this court’s place in this context to give direction to the Legislature, it is hard to avoid the common sense observation that if the absence of an operable pedalling function is deemed to create a pressing problem, a more proportionate response, and one more in keeping with the exempted status of these vehicles, is to prohibit the sale of those with detachable pedals or simply make it an offence to operate without them. [ 76 ] While these reasons are sufficient to dispose of the appeals, I would make the following additional observations. [ 77 ] I realize that the facts in the two cases under consideration are not identical and that there is no evidence on the first trial of how quickly or easily the pedalling function could be restored.

However given that in both instances the pedals were present I am satisfied that little if anything turns on this.

In either case the vehicles as configured do not comply with all aspects of the definition, but given the obvious existence of a pedalling capability I am satisfied the courts made no error in determining that the vehicles retained their essential function for use as an e-bike. [ 78 ] Secondly, I am not unmindful that, although not pressed in argument, one of the positions adopted by the Crown was that the onus in these matters, arising from section 47(3) of the HTA , was on the Respondent to establish that his vehicle was a power- assisted bicycle and thereby exempted from the definition of “motor vehicle”.

Accepting that is correct, albeit with the same reservations expressed by Justice Dudar in his analysis, it is also true that at the first trial, the court incorrectly placed the onus on the Crown to prove that the Respondent’s vehicle was a motor vehicle. I am satisfied however that the result would have been the same even had he not done so. The uncontradicted evidence on both trials from the arresting officers in each case was that the Respondent when stopped was operating an e-bike. This provided a sufficient basis for the court to make that finding.

The result in neither case turned on the application of the onus of proof. Both trials proceeded through submissions on the understanding that the Respondent was operating a power-assisted bicycle, modified by the removal of pedals.

[ 79 ] Finally, I will briefly comment on the related decision of R. v. Pizzacalla, [2012] O.J. No. 2342 , where Justice Nadel found this same Respondent, operating his e-bike, guilty of driving while disqualified arising from the same events as the first trial under appeal. The conviction was confirmed on appeal to the Superior Court, [2013] O.J. No. 451 . In my view the result in the matter before this court is not inconsistent with the determination in that case that the same vehicle, was a motor vehicle.

The difference is accounted for by the wider definition of “motor vehicle” under the Criminal Code which contains no exemption for the power-assisted bicycle. In my view a power-assisted bicycle, even with operable pedals, unless it is being operated without engaging the electric motor at all, will always be captured by the Criminal Code definition of “motor vehicle”.

As noted by both courts in that case, the situation may have been different had the disqualification giving rise to the prohibition stemmed from a Provincial licence suspension which would have brought the HTA definition of “motor vehicle” into play. [ 80 ] For all of the above reasons these appeals are dismissed. Released: June 6, 2014 Signed: “Justice P.H. Wilkie” _________________________ Justice P.H. Wilkie