2020 ONCJ 152, 2020 ONCJ 152

CITATION: Hamilton (City) v. Portillo, 2020 ONCJ 152 DATE: February 20, 2020 ONTARIO COURT OF Justice Central West Region City of Hamilton -and- Michael Portillo Proceedings October 2019, 06 December, 2019 Decision issued 20 February, 2020 Appearances: Galbraith, S. for the prosecution Self for the defendant Statutes Considered or Cited: City of Hamilton Bylaw, 01-215 (the “By-law”) Highway Traffic Act (“HTA”) O. Reg. 215/17: PILOT PROJECT - LOW-SPEED VEHICLES O. Reg. 389/19: PILOT PROJECT - ELECTRIC KICK-SCOOTERS O.

Reg. 488/06: PILOT PROJECT - SEGWAYS Case Considered: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 Background and Facts 1. Michael Portillo is charged that on the first day of May, 2019, he drove a toy or similar device on a roadway in contravention of theBy-law. 2. For the reasons set out below, I find the defendant not guilty. 3. Section (20) of the By-law states No person shall play or take

part in any game or sport upon a roadway, and no person shall ride on a roadway in or on a skateboard,roller skates, a coaster, skiis, a toy vehicle or similar devices, except for the purposes of crossing the road, and when so crossing suchperson shall have the rights and be subject to the obligations of a pedestrian. 4. There are also provisions in s.20 of the By-law relating to the operation of motor vehicles on sidewalks, but with the addition ofbicycles, but excluding a number of devices such as baby carriages.

This particular provision also permits use of Segway PersonalTransporters in compliance with O.Reg.488/06. 5. The Court notes that O.Reg.488/06 was revoked on October 18, 2018, and as such is no longer in force. 6. The prosecution witness describes the device in question as a “Segway”, which refers to the term used as an exception to theprohibition of certain devices on sidewalks.

7 . There is no disagreement on the facts, and the defendant concedes that he drove a “device” on a roadway. 8 . The defendant and his witness prefer use of the term “low power mobility device”. 9 . The device in question consists of a platform, mounted between two wheels. The device propels the single rider forward or back according to the depression of the toes on the platform, or to the left or right based on manipulation of a control stick that protrudes up from the middle of the platform to a height somewhere between the knees and waist of the rider.

The platform sits perpendicular to the direction of travel. Propulsion is achieved by a motor, which is energized by a battery. 10 . The defendant and his witness both point to the economics and environmental benefits of this device. There is no dispute on these points. The defence evidence is that they have had conflicting experiences and advice regarding any lawful use of such devices. It is clear that the defendant’s witness has ridden this and like devices extensively, both in the City of Hamilton, as well as in close-by municipalities.

Both witnesses express frustration that it is only in the City of Hamilton they have been confronted by police and, in this case, charged. 11 . Both the defendant and his witness advise that in some instances they have been admonished for driving/riding on sidewalks and advised to ride/drive on roadways; in other instances, they have been told the opposite. While the defendant presented a video recording of one City of Hamilton police officer advising him he could not ride/drive on a sidewalk, this was deemed inadmissible as it is irrelevant to the charge at hand, specifically, riding/driving on a roadway.

In any event, it does not establish that the police officer advised him to ride on a roadway. 12 . Given that the device has a motor, and is intended to carry or transport passengers, it would normally fall within the definition of motor vehicle [1] as set out in the HTA . There is no argument that the device is not a motor vehicle or that it fits within any of the exceptions set out in the definition. 13 . There are two current Regulations that speak to pilot projects in relation to certain devices. The first is O.Reg.215/17 , establishing a pilot project in relation to low speed vehicles [2] .

Subsection 3(2) of that Regulation prescribes that “No person shall drive a low-speed vehicle on a highway under the jurisdiction of a municipality except where it is permitted by a municipal by-law.” 14 . The second is O.Reg 389/19 , which creates a pilot project authorizing the use of “kick scooters” [3] , subject to conditions. Subsection 3(

b) of that Regulation prescribes No person shall operate an electric kick-scooter on a highway, sidewalk, trail, path or walkway or in a public park or exhibition ground unless, (

b) where the highway, sidewalk, trail, path, walkway, public park or exhibition ground is under the jurisdiction of a municipality, such operation is permitted by and in accordance with a municipal by-law. 15 . O.Reg 389/19 came into force January 1, 2020. 16 . The defendant admits to being motivated to having this issue determined by a court in order to obtain guidance as to where he is able to drive/ride his device, given the conflicting advice he has been given. 17 .

The prosecutor inferred that no municipal authorization in respect of low speed vehicles or kick scooters have been established by the City of Hamilton. While the Court can take judicial notice of Regulations , it remains up to the defendant to point to any authorizing Regulation that would permit operation of the subject device on a roadway or highway. The defendant points to no such authorizations or enactments. As a result, I cannot be satisfied that either of the existing Regulations which have been mentioned or any other would seem to apply to the operation of the instant device. Analysis and Decision 18 .

The device in question does not conform with the definition of either a low-speed vehicle or electric kick-scooter (in particular as the platform sits perpendicular to the road and not with the wheels at the front and rear]. For these reasons, these pilot projects do not apply either. 19 . The Prosecutor acknowledges that there is no definition in the By-law for “toy” or similar device. The Prosecution position is that the Court must be guided by principles of statutory

interpretation to determine whether the device in question is subject to the restriction of the By-law. To this end, he points to the decision of the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re) . The oft-quoted guidance in that decision states Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The

Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 20 . To assist in finding the “ordinary sense” of the word “toy”, the prosecutor pointed to a number of dictionary

definitions; in these he focussed his attention on the idea that a “toy” is a “something diminutive” (Merriam-Webster), and “often a small representation of something familiar” (Collins English Dictionary). I find these of little assistance as the prosecutor failed to illustrate what it is that the

subject device represents or miniaturizes. 21 . Other

definitions point to “toys” as “for children or others to play with” ” (Collins English Dictionary), or “for enjoyment or pleasure rather than a serious purpose” (Oxford Learners Dictionaries). Again, I fail to see how these apply, and, indeed, the uncontested evidence establishes that these are purpose-built, utilitarian devices, and, generally but not exclusively, targeted to adults. 22 . What I do find helpful is the existence of the various Regulations , one of which has been referenced in the City By-law .

These are relevant because they establish that the Province maintains jurisdiction over motor vehicles, and their operation can be regulated by municipalities to the extent set out in any governing Regulation . As noted above, there appear to be none in relation to this particular device. 23 . A further review of the By-law draws attention to the fact that the devices which are set out therein are not motorized. This is consistent with the idea that the Province regulates motor vehicles and the City only does so with express authority. 24 .

For that reason, I would find that the By-law cannot and does not apply to this device, and for that reason, find the defendant not guilty. His Worship Donald Dudar Justice of the Peace in and for the Province of Ontario