2011 MBPC 24, 2011 MBPC 24

Citation No. 2011 MBPC 24 Date: March 16, 2011 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Elizabeth Laite, for the Crown ) - and - ) ) Roy Erwin Sveinson ) Self represented ) ) Judgment delivered: ) March 16, 2011 KELLY K. MOAR, P.J. [ 1 ] Mr. Roy Erwin Sveinson is charged with two offences contrary to The Off-Road Vehicles Act C.C.S.M. c. 031 said to have arisen on September 21, 2009 as follows: (

a) That he failed to wear a helmet contrary to s. 28(1) of the Act, and (

b) That he operated an off-road vehicle on or across a roadway or shoulder contrary to s. 33(1)(

a) of the same Act. [ 2 ] The trial of this matter commenced on June 21, 2010 and was adjourned to permit the calling of an additional witness at the request of Mr. Sveinson. On that date the court heard from that witness and then argument at the conclusion of the case. [ 3 ] I am mindful that this is in fact a trial and that it is the Crown who has the onus of proof in these proceedings. [ 4 ] In this case the court heard from two police officers and also from the accused. At the end of the day, the factual underpinning of this case is not really at issue but rather it is the

interpretation to be given to the sections of the Act that is decisive of this matter. CROWN EVIDENCE [ 5 ] The case for the Crown came solely from the evidence of Constable Jared Ostby who I understand had been a member of the Royal Canadian Mounted Police for ten (10) months at the time. [ 6 ] At approximately 16:59 hours on the date in question the officer was sitting in the Royal Canadian Mounted Police detachment when he heard what sounded like a quad drive by.

Upon looking, he observed a three-wheeler being driven by the accused pulling a trailer containing various items. [ 7 ] Given that observation, the officer immediately left the detachment and pursued the operator of the three-wheeler who had initially been northbound on second (2nd) Avenue in the town of Ashern, Manitoba. The off-road vehicle then went west on secondary 325 and then northbound on Highway 6 where a traffic stop was initiated. [ 8 ] At the time of the stop the officer noted the driver not wearing a helmet.

The trailer attached to the three-wheeler contained various items that the officer was advised had been obtained from one of the hotels in the midst of renovations. That hotel was one street to the east of the initial observation and the accused would have been going away from that location at the time. [ 9 ] The driver produced a valid Manitoba Drivers License and the officer did compare the photograph contained therein and was satisfied he was dealing with the person in front of him identified as Roy Sveinson, a male born in 1940. The officer then issued the offence notices now before the court.

[ 10 ] In cross-examination it was clarified that when the officer noted the three-wheeler on Highway 6, it was being operated on the shoulder of the highway. Furthermore that when signalled by the police, the three-wheeler did come to an immediate stop. [ 11 ] During the course of their interaction the officer confirmed that he had been advised by the accused that the materials in the trailer were being transported from the hotel to his own home. [ 12 ] In terms of the trailer itself, the officer was unable to recall if there was a slow moving sign located on the trailer.

DEFENCE EVIDENCE [ 13 ] The accused chose to testify and indicated that he lived approximately fifteen (15) miles from the town of Ashern. On the morning in question he had been out scouting for geese and elk as he progressed through the bush. He had made prior arrangements to attend the hotel to pick up various items and that was his sole reason for being in Ashern on this date. [ 14 ] He did attend to that hotel and stayed for a period of time during which time he had a couple of beer. At some point he loaded the trailer with a number of items and began to proceed on his way home.

It was his intention to check the animals and birds as he progressed on his way home. [ 15 ] At the time of the stop by the RCMP, the accused indicated that the officer made no effort to ascertain what he was doing other than where he was taking the load. He testified that the trailer itself had reflectors and brake lights. Also attached to the rear of both the three-wheeler and the trailer were slow moving signs. [ 16 ] In cross-examination, Mr. Sveinson did confirm that he had been operating the ATV on second (2 nd ) Avenue in the town of Ashern, which is a residential area.

As for the trailer contents, it was confirmed that there was a freezer, storage shelving and the like. [ 17 ] Constable Ronald Alan Poetker was also called as a witness by Mr. Sveinson. He confirmed that he was present at the time the tickets were issued and was the senior officer on site. [ 18 ] During the course of the examination in chief, the officer indicated that he was not aware of the exemptions listed under s. 28(2) of the Act. As for the trailer itself, he did not inventory the contents as it was never seized by the police.

However, he did recall that there was a fridge or freezer, some lumber and other items that he could not recall. As for the trailer itself, he did recall that it did have a slow moving sign affixed to it but was unsure if there was one on the three-wheeler. [ 19 ] The officer could not recall if a safety chain was being used, whether the load was tied down, or whether there was a tarp being used. [ 20 ] As for the driving, he did observe the accused to be operating the three-wheeler on the hard top in town but to the right side.

He was driving below the speed limit and estimated it to be 5 – 10 kilometers per hour. DEFENCE ARGUMENT [ 21 ] The accused indicates that he is a trapper, hunter and commercial fisherman. He is seventy (70) years of age and is entitled to hunt small game year round as a result of his age. [ 22 ] At the time of this incident the upland game season was on and he was the holder of both a trapping and hunting license. [ 23 ] On the date in question he admits that he was operating an off-road vehicle and towing a trailer.

While driving the off-road vehicle it was his intention to be checking for elk and geese on the fields as that was the season. In addition, he was also checking out the various ponds for muskrat as trapping season was opening a week later. [ 24 ] It is his position that the materials he was towing were to be used in his capacity as a fisherman and hunter.

Given that he is then exempt from wearing a helmet as is stated in The Off-Road Vehicles Act . [ 25 ] As for his operation of the three-wheeler, he points to the court that he was doing so while on the extreme right hand side of the road, did not drive carelessly and was on the shoulder when that was available. Section 34(2) of the Act permits him to operate the three- wheeler and therefore the ticket issued under s. 33(1)(

a) is not proper and he should be acquitted. CROWN ARGUMENT [ 26 ] Not surprising, the Crown does not agree with the accused’s

interpretation of the legislation. [ 27 ] The Crown reminds the court that the accused was seen to be operating the off-road vehicle on the residential streets of Ashern by the RCMP. It was confirmed during the course of cross-examination that at the time he was in Ashern he was not in the course of

hunting or farming, but rather was picking up items to transport to his home. [ 28 ] As for the issue of no helmet, the Crown asserts the exemptions do not apply. [ 29 ] Much of the same argument applies to the issue of the three-wheeler and its operation. The sole reason for the accused coming into the town of Ashern was to pick up the items that were contained in the trailer. At that time, the Crown suggests that the accused was not engaged in the act of hunting nor, per se, was he engaged in an agricultural purpose at the material time.

Once again, the Crown asserts that the accused was not within the confines of the exemption and they therefore do not apply in this case. THE APPLICABLE LAW [ 30 ] Section 28(1) of The Off-Road Vehicles Act states: “No person shall ride on or operate an off-road vehicle unless the person is wearing on his or her head a properly adjusted and securely fastened helmet in compliance with the requirements contained in the regulations under this Act.” [ 31 ] Section 28(2) deals with circumstances where helmets are not required and states: “Subsection 28(1) does not apply (

a) to a person operating an off-road vehicle being used in the course of farming, commercial fishing, hunting or trapping operations; or (

b) to the operator or passengers of an off-road vehicle equipped with occupant roll-over protection and seat belt assemblies that meet the safety standards prescribed in the regulations and the seat belt assemblies are being worn in a properly adjusted and securely fashioned manner. [ 32 ] Section 33(1) deals with the operation of off-road vehicles on highways and states the following: “Except as may be authorized under the provision of this Act or under the regulations, no person shall operate an off-road vehicle (

a) upon or across a roadway or the shoulder thereof; (

b) on or across the median of a divided highway; (

c) on the right-of-way if an interchange; or (

d) on or across a sidewalk. [ 33 ] Section 34(1) deals with circumstances where operation on the shoulder may occur, “An off-road vehicle may be operated upon the shoulder only when (

a) the off-road vehicle has more than two wheels and is being used for agricultural purposes; (

b) the off-road vehicle displays to the rear a slow moving vehicle sign; and (

c) the operator is 16 years of age or older and holds a license other than one that has a restriction on operating off-road vehicles. [ 34 ] Section 34(2) defines how the vehicle is to be operated on the shoulder as follows:

“Where an off-road vehicle is being operated on the shoulder as permitted under subsection (1), the operator shall drive (

a) in the same direction as vehicular traffic on that side of the roadway; and (

b) at a speed not exceeding 40 km/h. EVIDENTIARY FINDING [ 35 ] As I said at the outset, the evidentiary underpinning of this case is not at issue. [ 36 ] The evidence of the accused was not challenged to any serious degree on the points that he is an individual who is engaged in agricultural, hunting and trapping activities. That on the date in question he was the operator of an off-road vehicle, as that is defined within the Act, that he is a licensed driver and over the age of 16 years.

It is also not in dispute that while he was operating that vehicle he was not wearing any form of helmet [ 37 ] It is also not disputed that he did operate that vehicle within the town of Ashern and drove on the hard top noted to be Second (2 nd ) Avenue. It is also not contested that the accused attended to the local hotel and did obtain a series of items that he loaded onto the trailer attached to his off-road vehicle. [ 38 ] The evidence of the police officers in this case was somewhat sparse in terms of details and they could not recall the trailer contained therein a freezer, shelving units and the like.

I accept that assertion by the accused that the trailer had on it a slow moving sign attached to it. That was something noted by Constable Poetker but not by Constable Ostby. As well, I accept the testimony of the accused that there was a further slow moving sign that was affixed to the actual off-road vehicle. [ 39 ] Finally, there is ample evidence to support that at no time was the off-road vehicle being operated recklessly or carelessly.

In fact the evidence of the officers was that they observed it to be operating properly and speed wise, did not top ten (10) kilometers per hour during their observation period. ANALYSIS [ 40 ] The accused in this matter does not contest that he was operating an off-road vehicle as that is defined within the Act.

Additionally he does not contest that at the time of the traffic stop he was operating the vehicle on the shoulder of Highway 6 and while doing so was not wearing a helmet. [ 41 ] The issue is this case comes down to whether the accused fits within the exceptions contained in the Act in that he was operating the off-road vehicle while in the course of farming, commercial fishing, hunting or trapping operations at the time. [ 42 ] That being said, I will initially deal with the assertion by the accused that s. 34(1) contains within it two separate and distinct exceptions as to when an off-road vehicle may be operated on the shoulder. [ 43 ] The accused suggests in argument that s. 34(1)(

a) contains a separate and distinct exception as to when an off-road vehicle may be operated on the shoulder and that by implication s. 34(1)(

b) and (

c) contain a second exception. [ 44 ] In essence what the accused suggests is: (

i) That if the off-road vehicle is being used for agricultural purposes, that alone would permit it to be operated upon the shoulder. (ii) Secondly, if it is not being used for agricultural purposes, it can still be operated on the shoulder as long as it has a slow moving sign affixed and the driver is over the age of 16 years and properly licensed. [ 45 ] Statutory

interpretation requires the court to consider the entirety of the Act and interpret the sections contained therein so as not to take away from the intent of the Act. [ 46 ] The name of the Act itself indicates that it governs certain types of vehicle(

s) that are not ordinarily found to be on public roadways. It permits incidental use of the roadways by this defined class of vehicles under very specific situations and for limited purposes as may be seen in a few examples set out in sections 32(1), 32(2) and 33(1) and 35(1).

[ 47 ] With all due respect to the accused, if I were to accept his argument it would essentially defeat the purpose of the Act and make the limitations of use set out in the Act moot. [ 48 ] Individuals over the age of 16 years not engaged in agricultural activities could simply affix a slow moving sign onto the off- road vehicle and then have carte blanche in terms of operating the vehicle on the shoulder of roadways. [ 49 ] The rules of statutory

interpretation call upon the courts to consider and apply the simple or general meaning. Upon a reading of s. 34(1) it is the absence of the term “or” that prevents one from considering the sections as setting out two exceptions as suggested by the accused. The

section has to be read in context and in its entirety and in my view sets out one exception and that is when an off-road vehicle is being operated for agricultural purposes on the shoulder it must be operated by a licensed driver over the age of 16 years with a slow moving sign affixed. To attach any other meaning would lead to absurdity, inconsistency and make much of the Act moot. [ 50 ] As for the activity being engaged upon on the date in question, the accused asserted in his evidence that he is a farmer, hunter and trapper.

His purpose for coming into Ashern was to attend the hotel to pick up various items from the local hotel. [ 51 ] While on his way into town that morning he scouted for elk and geese.

Once in town he attended to the hotel to pick up various items that included a freezer to be used for the storage of wild meat (page 21 of transcript dated June 16, 2010, line 34 – page 22, line 1). [ 52 ] Additional materials obtained were “storage shelving and a whole bunch of other stuff” (page 22 of Transcript dated June 16, 2010, lines 19 – 20) which he intended to be used “in the planning for the operation of my hunting.” It was his stated intention to continue his scouting activities while on his way back home. [ 53 ] In cross-examination the accused did agree that he was not farming while in the town of Ashern, nor was he hunting.

He agreed with crown counsel that he was in a residential area of Ashern for much of the day. In fact, accepting that he came into town in the morning and did not leave until 5:00 p.m., it is apparent he was in the residential portion of Ashern for a minimum of five (5) hours. [ 54 ] Section 33(1) of The Off-Road Vehicles Act prohibits the operation of those vehicles generally upon a roadway or the shoulder. Roadway is defined as any portion of a highway that is designed for and ordinarily used for vehicular traffic.

That definition would therefore encompass Second (2 nd ) Avenue along with Road 325 and Highway 6, which is sufficient for the purposes of this case. [ 55 ] Although the accused may have started out carrying out various functions that are noted exceptions to the use of an off-road vehicle, once he entered into the town of Ashern, his use of the off-road vehicle is limited, an example being s. 32(2) which states he may only operate in a parking lot to gain access to or from an off-road vehicle use area.

In other words, he does not enjoy unrestricted use of the off-road vehicle once he enters upon a roadway, such as those contained in the town of Ashern. [ 56 ] As for his attendance to the hotel in question, his own evidence indicates that he was there to pick up numerous items that he intended to return to his farm.

He remained at that location for a number of hours before returning back home. [ 57 ] I accept that the accused may have once again intended to look for wildlife and the like when on his way home, however what is clear is that while on the roadways of Ashern and out onto Highway 6, the accused has admitted he was not engaged in farming nor had he been hunting. [ 58 ] Any assertion that the materials he obtained from the hotel were to be used in his hunting or farming life, although possible, are not part and parcel to carrying on hunting or farming activities. [ 59 ] The Act sets out various limits to the use of off-road vehicles in what may be termed as heavily populated areas.

It is that

interpretation that must be held out and any suggestion that the accused can assert an exception to the Act merely by claiming to be someone or perhaps doing something peripherally would defeat the purpose of the Act. [ 60 ] The accused is permitted to be without a helmet when out in the bush area hunting or when on a roadway if he is actively working a farming operation but neither of those activities were the primary purposes for his visit to Ashern.

The fact he stayed at the hotel for such a lengthy time supports the conclusion that his purpose for being in Ashern had changed and he was no longer in a position to avail himself of the exemptions for those engaged in a particular occupation. [ 61 ] In my view, Mr. Sveinson was not utilizing his off-road vehicle in the course of farming, commercial fishing, hunting or trapping operations and therefore was obligated to wear a helmet.

A conviction will be entered on that count. [ 62 ] In addition, given my findings, a conviction will also follow on the count of operating an off-road vehicle on a roadway or shoulder as once again he was not engaged in the activity of farming at the time. ORIGINAL SIGNED BY: KELLY K. MOAR, P.J.