R. v. Kulbacki, 2012 ONCJ 532

Information No 11-1235 Citation: R. v. Kulbacki , 2012 ONCJ 532 ONTARIO COURT OF JUSTICE EAST REGION HER MAJESTY THE QUEEN V. SHANE-RANDY KULBACKI ****************************** R E A S O N S F O R J U D G M E N T ************************* BEFORE THE HONOURABLE MR. JUSTICE G. RADLEY-WALTERS Released on August 23 rd , 2012 ********************** OFFENCE: S. 259 (4 )(

b) C.C. *************** APPEARANCES: Elizabeth Ives-Ruyter Counsel for the Crown Ian C. Kuehl Counsel for the Accused

R. v. Kulbacki Reasons for Judgment Radley-Walters, G. REASONS FOR JUDGMENT 1 . The accused was charged with driving while disqualified, contrary to section 259 (4) (

b) of the Criminal Code of Canada . This charge arises out of allegations on the 19 th of September, 2011 in the Town of Deep River. 2 . The accused admitted to the Prohibition Order which was in effect on the 19 th of September, 2011. FACTS : 3 . The accused was driving a vehicle described as an “E-bike” while in a parking lot and on a public sidewalk. The accused did not have a helmet on which prompted the stop by the police.

The accused had been prohibited from driving any motor vehicle in Canada for a period of twelve months as a result of a conviction for a section 254 (5) charge of the Criminal Code of Canada on January 21 st , 2011. The prohibition for the accused driving a motor vehicle was still in effect on the alleged offence date. 4 . This was a case in which the accused elected to testify on his own behalf at this trial. The Supreme Court of Canada in the case of R. v. W.D . has provided guidance to trial judges in cases such as the present one before the court on the issue of credibility.

That case stands for the proposition that if an accused person testifies and that testimony raises a defence and the trial judge accepts that testimony then the trial judge must acquit the accused. 5 . The second stage of the analysis relates to the scenario where the trial judge rejects the testimony of the accused. In those cases, the Crown still has a positive obligation to prove beyond a reasonable doubt all of the essential elements of the charge against the accused. If the Crown fails in this task, then the trial judge must again acquit the accused. 6 .

It is only in the case where the Crown has proven beyond a reasonable doubt, all of the essential elements of the charge against the accused that the trial judge may convict the accused. 7 . I accept the evidence of the accused that he had contacted various police forces including the Toronto Metro Police to see whether or not he would be breaching his Prohibition Order by driving an E-bike. I reject, however, the accused’s evidence that the E-bike did not have any power on the date in question and that the accused was only using it as a bicycle.

I accept the evidence of Constable Medeiros that he saw the accused driving the vehicle in question up an incline and that the vehicle maintained its speed even without pedalling. ISSUES:

8 . Is the vehicle that the accused was driving on September the 19 th , 2011 a motor vehicle within the definition of

Section 2 of the Criminal Code of Canada ? 9 . Was the accused driving in contravention of his Prohibition on the 19 th of September, 2011? 10 . Is the accused entitled to the defence of officially induced error? ANALYSIS: 11 . The accused was driving an electric bicycle on the date in question which has the ability to be powered by a small electric motor, or by pedalling the bicycle in the usual fashion, or a combination of both methods of power. The vehicle was brought into the courtroom to be observed and it resembles a European moped with a flat deck to rest your feet on when the electric motor is engaged. 12 . “Motor Vehicle” is described in

Section 2 of the Criminal Code of Canada . It states, “Motor vehicle means a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.” 13 . The manufacturer of the vehicle in question claims that it complies with the definition of, “power-assisted bicycle” within the definition of

Section 1 of the Highway Traffic Act . That definition reads as follows: “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; 14 . A definition of “Power-assisted bicycle” in subsection 2 (1) of the Motor Vehicle Safety Regulations made under the Motor Vehicle Safety Act (Canada) reads 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 mannerthat 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; 15. I find that the vehicle that the accused drove on September 19th, 2011 is a power-assisted bicycle as defined in

Section 1 of theHighway Traffic Act. I accept the evidence that the vehicle in question had a plate attached to it by the manufacturer in compliancewith the definition referred to in clause (

b) of the definition of power-assisted bicycle. 16. The accused testified that the battery for the electric motor in the vehicle in question had a very low charge on it such that theelectric motor would not power the vehicle independently. The accused acknowledged that there was no way for the accused toknow how much the battery was charged. The police officers testified that they saw the accused drive the bike without peddling itand I accept their testimony on this point. 17. This is however a moot point because of the case of R. v. Saunders (SCC), [1967] S.C.R. 284.

That case standsfor the proposition that a motor vehicle is still a motor vehicle whether or not the vehicle is actually operable or effectivelyfunctionable on the date in question. 18. In the case of R. v. Saunders (SCC), [1967] S.C.R. 284, Mr. Justice Fauteux stated, “The definition of a motor vehicle is in plain and ordinary language. It contemplates a kind of vehicle, not its actual operability orfunctioning. Its application is not confined to a portion of the Code, it extends uniformly throughout.” 19. Similarly in the case of R. v. Lloyd (SK CA), [1988] 4 W.W.R. 423, 66 Sask. R.100 (ca). Mr.

Justice Wakelingstated that an automobile which is out of gas is still a motor vehicle. 20. In discussing the issue of paramountcy of legislation, Ruth Sullivan in her book, Sullivan on the Construction of Statutes, 5th Edition, stated at page 328, “In dealing with overlap between valid federal and provincial legislation, a primary concern of the courts historically has been securingadequate room for the operation of provincial legislation. Narrowing the concept of conflict to “operational conflict” – compliance withone law involves breach of the other – facilitates this goal.” 21.

Similarly in that text, page 329, she identifies that the current test for the division of powers is described by the majority of theSupreme Court of Canada in British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23 , [2007] S.C.J.No. 23, [2007] 2 S.C.R. 86, at para. 77 (S.C.C.), as follows: “We restated the requirements for federal paramountcy in our reasons in Canadian Western Bank.

The party raising the issue mustestablish the existence of valid federal and provincial laws and the impossibility of their simultaneous application by reasons of anoperational conflict or because such application would frustrate the purpose of the enactment, as explained by our Court in Rothmans,Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R., 188, 2005 SCC 13, at paras. 11-14. (See also Law Society of British Columbiav. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67, at paras. 68-71; Bank of Montreal v. Hall, (SCC), [1990] 1 S.C.R.121).”

22. It is clear that the Province of Ontario has defined the “power-assisted bicycle” for the purposes of provincial legislation includingthe Highway Traffic Act. The definition of a motor vehicle in

Section 2 of the Criminal Code of Canada is the definition that isapplicable to an offence under s. 259 of the Criminal Code of Canada. I find that that E-bike or the power-assisted bicycle that the accused was driving on September 19th, 2011 is a motor vehicle as defined in

Section 2 of the Criminal Code of Canada. The vehicle that the accused drove on September 19th, 2011 is a vehicle that has the capability and in fact was propelled or driven by anelectric motor. I also find that the accused drove this motor vehicle on a highway as defined by

Section 2 of the Criminal Code ofCanada. I find that the accused was prohibited from driving a motor vehicle on the date in question. This would lead one toconclude that the Crown has proven all of the essential elements of the charge against the accused and there should be aconviction. 23. The accused has raised the defence of officially induced error. I find that the accused did call various police detachments inOntario to seek an opinion from police officers as to whether the accused would be in contravention of his Prohibition Order if hedrove a power-assisted bicycle as defined in

Section 1 of the Highway Traffic Act on a highway. I accept the testimony of the accused that the accused was told by various police officers both before and after September 19th, 2011 that he could drive apower-assisted bicycle which is an E-bike on a highway and that the accused would not be contravening the Prohibition Order. 24. I further accept the testimony of the accused that in his mind, on September 19th, 2011, he was not in contravention of theProhibition Order as a result of the advice that he had been given by on-duty police officers responding to his inquiries. 25.

The law regarding officially induced error is set out in the case of R. v. Jorgensen (SCC), [1995] 4 S.C.R. 55. Chief Justice Lamer in that case stated at paragraphs 25, 26, 28, 29, 30, 33, 34, 35, 36 and 37: “C. Officially Induced Error of Law 25 Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of thecases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsiblecitizen will have a comprehensive knowledge of the law unreasonable.

This complexity, however, does not justify rejecting a rule whichencourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat. 26 As complexity of regulation is linked to the justification for this excuse, it is predictable that it will arise most often in therealm of regulatory offences. Nonetheless, this excuse is equally valid for "true crimes" with a full mens rea component.

As theinvolvement of the state in our day to day lives expands, and the number of officials from whom advice can potentially be soughtincreases, the chance that an official may give advice about an enactment which would not be classified as "regulatory" multiplies.

Officially induced error is distinct from a defence of due diligence, and there is no reason to confine it to the regulatory offence context,though it is obvious that for certain crimes, such as those involving moral turpitude, the chances of success of such an excuse will benearly nil. 28 The first step in raising an officially induced error of law argument will be to determine that the error was in fact one of lawor of mixed law and fact. Of course, if the error is purely one of fact, this argument will be unnecessary.

Unlike Professor Barton, I donot agree that officially induced error should be used to eradicate the distinction between mistakes of fact and mistakes of law. Thisdistinction is important for all the reasons that I believe the principle that ignorance of the law does not excuse must stand firm. Distinguishing between mistakes of fact and those of law remains conceptually important. Mistakes of law will only be exculpatory innarrowly defined circumstances. 29 Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legalconsequences of her actions.

By requiring that an accused must have considered whether her conduct might be illegal and sought adviceas a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for anaccused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible. 30 The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official. One primary objective of this doctrine is to prevent the obvious injustice which O Hearn Co. Ct.

J. noted -- the state approving conductwith one hand and seeking to bring criminal sanction for that conduct with the other. In general, therefore, government officials who areinvolved in the administration of the law in question will be considered appropriate officials. I do not wish to establish a closed list ofofficials whose erroneous advice may be considered exculpatory. The measure proposed by O Hearn Co. Ct. J. is persuasive. That is,

the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for adviceabout the particular law in question. Therefore, the Motor Vehicle Registrar will be an appropriate person to give advice about drivingoffences, both federal and provincial. The determination of whether the official was an appropriate one to seek advice from is to bedetermined in the circumstances of each case. 33 Once an accused has established that he sought advice from an appropriate official, he must demonstrate that the advice wasreasonable in the circumstances.

In most instances, this criterion will not be difficult to meet. As an individual relying on advice has lessknowledge of the law than the official in question, the individual must not be required to assess reasonableness at a high threshold. It issufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless itappears on its face to be utterly unreasonable. 34 The advice obtained must also have been erroneous. This fact, however, does not need to be demonstrated by the accused.

In proving the elements of the offence, the Crown will have already established what the correct law is, from which the existence of errorcan be deduced. Nonetheless, it is important to note that when no erroneous advice has been given, as in MacDougall, supra, this excusecannot operate. 35 Finally, to benefit from this excuse, the accused must demonstrate reliance on the official advice.

This can be shown, forexample, by proving that the advice was obtained before the actions in question were commenced and by showing that the questionsposed to the official were specifically tailored to the accused's situation. 36 In

summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after theCrown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she madean error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on thatadvice in her actions. Accordingly, none of the four justifications for the rule that ignorance of the law does not excuse which Stuartoutlined is undermined by this defence. There is no evidentiary problem.

The accused, who is the only one capable of bringing thisevidence, is solely responsible for it. Ignorance of the law is not encouraged because informing oneself about the law is a necessaryelement of the excuse. Each person is not a law unto himself because this excuse does not affect culpability. Ignorance of the lawremains blameworthy in and of itself. In these specific instances, however, the blame is, in a sense, shared with the state official whogave the erroneous advice. D. Procedural Considerations 37 As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment.

Both function asexcuses rather than justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should notbe attributed to the actor. (See R. v. Mack, (SCC), [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment,the accused has done nothing to entitle him to an acquittal, but the state has done something which disentitles it to a conviction (Mack, atp. 975). Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay ofproceedings rather than an acquittal.

Consequently, as a stay can only be entered in the clearest of cases, an officially induced error oflaw argument will only be successful in the clearest of cases.” 26. I find that the error in this particular case arose as an error of law. The error relates to whether or not the definition under

Section 2of the Criminal Code of Canada relating to motor vehicle is the applicable law or alternatively because the offence related tomotor vehicles on a highway, did the definition of power-assisted bicycle under the Highway Traffic Act apply. I further find thatthe accused did consider the legal consequences of his actions in advance of driving the E-bike because I accept his evidence thathe spoke with the police officer prior to driving the E-bike. 27.

I also find that the accused sought advice from an appropriate official namely, a police officer in the Toronto area whose role itwas to enforce the Highway Traffic Act and the Criminal Code of Canada and advise members of the public regarding both ofthese Acts. I am satisfied that the advice that the accused received from the police officer in Toronto was reasonable in thecircumstances given that these E-bikes are a relatively new phenomenon and the rules regarding them are somewhat confusing. As I have already found the advice from the police officer clearly was erroneous.

Finally, I am satisfied that the accused relied onthe advice from the officers before taking out the E-bike on the date in question.

28 . Under all of the circumstances, I accept the accused’s defence of officially induced error and I note that the proper procedure in this case is to register a judicial stay of proceedings rather than an acquittal. 29 . A Judicial stay is hereby registered. _________________________________________ The Honourable Mr. Justice G. Radley-Walters