Niagara (Reg. Mun.) v. Busch, 2017 ONCJ 547

CITATION: Niagara (Reg. Mun.) v. Busch, 2017 ONCJ 547 DATE: July 27, 2017 Court File: 170123 Case Name: R. v. Busch Between Her Majesty the Queen, and Frank Busch Regional Municipality of Niagara ONTARIO COURT OF JUSTICE S. Lancaster J.P. Trial: June 1, 2017 Judgement: July 27, 2017 Operate Motor Vehicle on a highway without Insurance, number plate and fail to wear seatbelt (Defence relates to self-propelled implement of husbandry) Compulsory Automobile Insurance Act, s.2(1)(

a) Highway Traffic Act, s7(1)(c)(i) & s.106(2) N. Isak .…..….................................................................. for the Prosecution F. Busch ……………..................................................................... Defendant Reasons for Judgment [I] S. LANCASTER J.P.: Frank Busch is before this court charged on January 22, 2017, in the Town of Lincoln, Niagara Region did operate a motor vehicle on the South Service Road without a contract of automobile insurance, fail to affix a valid number plate, and fail to wear a seatbelt pursuant to s.2(1)(

a) of the Compulsory Automobile Insurance Act and sections 7(1)(c)(

i) and 106(2) of Highway Traffic Act (HTA) respectively. This matter returns today for judgement. I. ISSUES: [2] Issues raised during this trial : (

a) Were Mr. Busch’s Charter rights infringed during the traffic stop, specifically, his right to counsel? (

b) Is Mr. Busch’s pick-up truck a motor vehicle or a self-propelled implement of husbandry (SPIH) attracting certain exceptions? II. EVIDENCE: Officer Prikken OPP – Prosecution Evidence : [3] The court heard from Officer Prikken, an Ontario Provincial Police officer, who was conducting general patrol in full police uniform while operating a fully marked police vehicle when he observed a brown Ford F-150 pick-up truck crossing his path when entering a South Service Road service centre. With a clear view through the truck cab window he observed a male driver not wearing his seatbelt.

The truck entered the Tim Horton’s Drive Through service line. A traffic stop was conducted when the same vehicle and driver exited the drive through. The vehicle plate validation was observed to be expired in November 2012. The driver’s licence,

registration and insurance was requested although none were provided. Frank Busch identified himself verbally with a date of birth. The officer was satisfied with the driver’s identity via MTO system photo likeness and confirmed that Mr. Busch had a valid driver licence and that he was the registered owner of the 2007 Ford truck, as shown in Exhibits 1 and 2, certified MTO document. [4] The trial proceeded with a “blended voir dire ” and it was determined that the utterance made by Mr. Busch was made voluntarily, although subsequent to the traffic stop Mr.

Busch submits that his Charter rights were infringed as he was “detained and interrogated” without being informed of his right to counsel, and through his notice of constitutional question he submits that he was denied his “… right to the presumption of innocence with respect to the law”. [5] Mr. Busch noted to the officer that the truck was not insured and, as a “farm vehicle, he did not need insurance”. The

Part 3 summons was issued with Mr. Busch disputing the charges given his belief that his vehicle was a SPIH. Officer Prikken noted that the truck looked like a regular pickup truck with a cab, box, seatbelts, plates, did not appear to be modified in any way to qualify it as a SPIH and did not have an affixed slow-moving vehicle sign. A second officer (P/C Elvis) arrived although had limited involvement. Mr. Busch was not under arrest, and apart from the investigatory detention and conversation leading to the charges, Mr. Busch was free to leave. Frank Busch – Defence Evidence : [6] Mr.

Busch testified that his pickup truck was converted in 2012 by a Mexican seasonal worker, although he didn’t know what specific work had been done. This work prevented the truck transmission from progressing beyond 1 st gear and that driving above 40 kph would damage the transmission or motor. The morning of January 22, 2017 he was travelling to a Jordan area farm to pick up a “sprayer”. A slow-moving vehicle sign was affixed to the truck and as he was low on fuel he stopped at the service centre. On the way his sign was “ripped off” as he moved over to allow a transport truck to pass.

He saw the officer as he pulled into the service centre. As the gas bar was busy he entered the Tim Horton’s Drive Through line to get a coffee, then was stopped by the officer. [7] During the conversation with the officer, and when asked he noted that his truck speed was not “governed” but was restricted in another way. Mr. Busch submits that officer Prikken had the opportunity to inspect the vehicle but chose not to, saying he could not tell the difference between the pickup truck and a SPIH. He further submits that he was not given his right to counsel and as such his constitutional rights per s.10(

b) and s.11(

d) have been infringed. [8] Exhibit 3 was tendered to the court, an affidavit from the owner of A&D Automotive with an attached May 8, 2017 invoice of an inspection of Mr. Busch’s truck. The Invoice notes that the “automatic transmission shifter / will not move past drive to low or second gear … when driving vehicle stays in first / low gear, does not shift into higher gears … Looks like a regular F-150 with a slow-moving vehicle sign on it .. doors / box / glass not removed”. It is noted that Exhibit 3 is assigned little weight as the author is not before the court to be cross examined.

It is noteworthy that the inspection was conducted 5 months after the offence date and it refers to a slow moving vehicle sign on it, whereas the evidence confirms the sign was not present during the traffic stop date. [9] On cross examination regarding his slow moving vehicle sign, Mr. Busch noted that a small log that he drove over caused a bump “knocking off his sign”.

Regarding his need for a pickup truck for farming, he requires it given the “steep, bumpy farm terrain where his pumpkins and melons would roll off a flatbed truck”. [10] The Law : The Canadian Charter of Rights and Freedoms (Charter) S.10 Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right. S.11 Any person charged with an offence has the right (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Highway Traffic Act (HTA) S.7.

(1) Permits, etc., required - No person shall drive a motor vehicle on a highway unless, (

a) there exists a currently validated permit for the vehicle; S.7.

(2) Self-Propelled Implement of Husbandry – subsection (1) applies to a self-propelled implement of husbandry that is operated on

a highway other than when travelling from farm to farm in relation to the specific use for which it was manufactured, designed,redesigned, converted or reconstructed or in travelling to or from such places as may be necessary for the maintenance or repair of thevehicle. S.106 (2) Use of seatbelt assembly by driver – Every person who drives on a highway a motor vehicle in which a seat belt assembly isprovided for the driver shall wear the complete seat belt assembly as required by subsection (5). Subsection (5) relates to how the seatbelt assembly shall be worn. Compulsory Automobile Insurance Act (CAIA) S.2(1) – subject to the regulation, no owner or lessee of a motor vehicle shall (

a) operate the motor vehicle on a highway unless the motor vehicle is insured under a contract of automobile insurance. Provincial Offences Act (POA) S.47.

(3) Burden of proving exceptions, etc., - The burden of proving that an authorization, exception, exemption or qualificationprescribed 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 setout in the information. Cases Cited (Prosecution): 1. R. v. Ladouceur, (SCC), [1990] S.C.J. No. 53 – Charter-related 2. R. v. Harris, 2007 ONCA 574 , [2007] O.J. No. 3185 – Charter-related 3. R. v. Yousofi, [2011] O.J.

No. 1862 – Charter-related 4. R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 – Charter-related 5. R. v. Vanberlo , 2010 ONCA 242 , [2010] O.J. No. 1307 6. Matheson v. Lewis, 2014 ONCA 542 , [2014] O.J. No. 3304 Cases Cited (Defence): 7. R. v. Luymes, [2010] OICJ 282 III FINDINGS: (

a) Were Mr. Busch’s Charter rights infringed during the traffic stop, specifically his right to counsel? [11] Mr. Busch’s Notice of Constitutional Question submits that his Charter rights have been infringed during the traffic stop. Theonus in this regard is on Mr. Busch to establish that infringement on a balance of probabilities. The Supreme Court in R. v. Ladouceuraddressed random police stops of motorists and the brief roadside detention undertaken for road safety reasons. At paragraph 52, “In my view the random stop is rationally connected and carefully designed to achieve safety on the highways.

The stop impairs as littleas possible the rights of the driver. In addition, the stops do not so severely trench on individual rights that the legislative objective isoutweighed by the abridgement of the individual’s rights”. The Supreme Court in R. v. Suberu notes at paragraph 23, “… detention does not mean that every interaction with the police will amount to a detention for the purpose of the Charter.

In R. v.Mann (2004 SCC 52), Iacobucci J. notes: “… the police cannot be said to ‘detain’, within the meaning of ss 9 and 10 of the Charter,every suspect they stop for purposes of identification, or even interview”.

[12] While Mr. Busch’s routine traffic stop involved a brief roadside detention causing him to be ‘delayed’ or ‘kept waiting”, hiss.10(

b) Charter rights to retain and instruct counsel and be informed of that right are not triggered. The charges involving Mr. Busch arenot ‘arrestable offences’ and he was not under arrest. Regarding Mr. Busch’s s.11(

d) Charter right to a fair public hearing by anindependent and impartial tribunal is achieved through his trial and not during the police investigation leading to his charges. (

b) Is Mr. Busch’s pick-up truck a motor vehicle or a self-propelled implement of husbandry (SPIH) attracting certainexceptions? [13] The HTA s.1(1) offers the following

definitions: A “motor vehicle” includes an automobile, a motor cycle, a motor assisted bicycle unless otherwise indicated in this Act, and any othervehicle propelled or driven otherwise than by muscular power, but does not include … a self-propelled implement of husbandry ... A “self-propelled implement of husbandry” means a self-propelled vehicle manufactured, designed, redesigned, converted orreconstructed for a specific use in farming”. [14] Mr. Busch testified that he modified his pickup truck for farm use, and uses it for farm purposes.

The evidence shows that apartfrom the modification to the transmission Mr. Busch’s truck is substantially similar to most other 2007 F-150 pickup trucks. Theevidence suggests the transmission modification prevents use of forward gears beyond first gear, and that travelling beyond 40 kphwould lead to transmission or engine damage, although the modification is not in effect a speed limiter. At issue is whether Mr. Busch’struck falls within the SPIH exception. Given Mr. Busch’s comments regarding the officer’s opportunity to inspect his truck to confirmthe truck’s modifications, to be clear the onus is on Mr.

Busch to establish his vehicle qualifies for the SPIH exception, as per POA s.47.(3). Mr. Busch’s truck is a self-propelled vehicle. [15] R. v. Vanberlo is an Ontario Court of Appeal case that deals with a pickup truck that was modified in several ways, includingengine fuel conversion, gearing changes, adding a heavy-duty towing hitch, large tread tires and a 4-wheel drive conversion for farminguse.

In that case the Court of Appeal found the modification did not satisfy the exception. “In my view, to be converted for a specificuse in farming a vehicle must be changed significantly enough that, viewed objectively, its essential character or function has beentransformed for that specific use, although it may retain some limited capacity for other functions. The transformation cannot just be forgeneral use in farming, it must be for a specific use” (par. 19). [16] While Mr.

Busch submits that travelling to get gas is consistent with HTA s.7.(2) reference to “travelling to or from such places asmay be necessary for the maintenance or repair of the vehicle”, I would not qualify refueling as ‘maintenance’. A plain dictionarydefines maintenance as “the care or upkeep of machinery or property: with proper maintenance the car will last for many years”. Mr.Busch noted the initial reason for the transmission modification was to prevent seasonal workers from driving too fast and causingdamage to the farm property. He didn’t show how his truck use is limited to the farm.

As per Vanberlo, “It is obvious that the vehiclewas not manufactured or designed for a specific farm use, nor could it be said that the modifications amounted to a redesign, conversionor reconstruction for a specific use in farming” (par.8). Mr. Busch likewise failed to show how installing a plastic box liner that isregularly purchased and used by truck owners for everyday non-farming use amounts to a “redesign, conversion or reconstruction for aspecific use in farming”. While Mr. Busch testified that he was travelling from his farm to another to pick up a sprayer, it is plain to seethat Mr.

Busch’s truck can be used for many functions, including picking up coffee at the Tim Horton’s Drive Through. IV JUDGEMENT: [17] Mr. Busch’s pick-up truck falls within the definition of a motor vehicle and Mr. Busch has not met his onus by proving that histruck attracts the self-propelled implement of husbandry exception. As such his pickup truck requires a valid vehicle permit, insuranceand that he wear his seatbelt when driving it on a highway. Considering the evidence and R. v. W(D.), (SCC), [1991]S.C.J.

No. 26, regarding defence evidence credibility I am satisfied the prosecution has proven its case beyond a reasonable doubt thatthe offence elements have been made out and convictions will be entered on all three counts. Mr. Busch may wish to review Mathesonv. Lewis to appreciate the risks associated with driving his truck on a highway without a contract of insurance.