R. v. Ryan Date:, 2012 BCPC 67

Citation: R. v. Ryan Date: 20120313 2012 BCPC 0067 File No: AH62158277 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Shawn Gordon RYAN REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON Appearing for the Crown: S / Sgt Andrew F. Isles Appearing in person: Shawn G. Ryan Place of Hearing: Courtenay, B.C.

Date of Hearing: December 2, 2011 Date of Judgment: March 13, 2012 Introduction [ 1 ] The Disputant, Shawn Ryan, was ticketed in Royston under the Motor Vehicle Act , RSBC 1996 c. 313 , on July 19, 2011 with two counts: driving a motor vehicle on a highway without a driver’s licence , contrary to section 24(1) of the Act and, driving a motor vehicle on a highway when the vehicle was not insured under a motor vehicle liability policy, contrary to

section 24(3 )(

b) of the Act. [ 2 ] The vehicle was, in common parlance, a motor assisted pedal bicycle. [ 3 ] However, the Motor Vehicle Act defines the term “motor assisted cycle” and is more restricted by definition than the meaning in common parlance.

[ 4 ] This bicycle would appear to have met all of the requirements of a motor assisted cycle but for one significant criteria : it had a gas powered engine rather than an electric engine. Legislation [ 5 ] The relevant provisions of the Motor Vehicle Act and Regulations are: Motor Vehicle Act

Definitions 1 In this Act: " motor assisted cycle" means a device (

a) to which pedals or hand cranks are attached that will allow for the cycle to be propelled by human power, (

b) on which a person may ride, (

c) to which is attached a motor of a prescribed type that has an output not exceeding the prescribed output, and (

d) that meets the other criteria prescribed under

section 182.1 (3); "motor vehicle" means a vehicle, not run on rails, that is designed to be self propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment or a motor assisted cycle; " motorcycle " means a motor vehicle that runs on 2 or 3 wheels and has a saddle or seat for the driver to sit astride; "vehicle" means a device in, on or by which a person or thing is or may be transported or drawn on a highway, but does not include a device designed to be moved by human power, a device used exclusively on stationary rails or tracks, mobile equipment or a motor assisted cycle; Offences 24

(1) Except when accompanied by a person authorized by the Insurance Corporation of British Columbia to examine persons as to their ability to drive and operate motor vehicles, a person must not drive or operate a motor vehicle on a highway unless, in addition to any licence or permit which he or she is otherwise required to hold under this Act, the person holds a subsisting driver's licence issued to him or her under this Act of a class appropriate to the category of motor vehicle driven or operated by him or her.

(2) A person who contravenes subsection (1) commits an offence.

(3) A person must not drive or operate a motor vehicle or trailer on a highway unless (

a) the person is insured under a valid and subsisting driver's certificate, and (

b) the motor vehicle and the trailer, if any, are insured under a valid and subsisting motor vehicle liability policy evidenced by an owner's certificate. …

(5) A person who contravenes subsection (3) commits an offence and is liable on conviction (

b) if the contravention is under subsection (3) (b), to a fine of not less than $300 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. Equipment of motor vehicles 219

(1) A person must not drive or operate a motor vehicle or trailer on a highway or rent a motor vehicle or trailer unless it is equipped in all respects in compliance with this Act and the regulations Motor Vehicle Act Regulations

Interpretation 1 In these regulations, unless the context otherwise requires

" limited speed motorcycle" means a motorcycle that (

a) is equipped with a motor having (

i) a piston displacement of not more than 50 cc, or (ii) a power source that produces a maximum of 1.5 kW, (

b) has a power drive system that does not require clutching or shifting by the operator after the drive system is engaged, (

c) has a maximum attainable speed on level ground, with or without pedals, of 70 km/hr, (

d) has a maximum weight of 95 kg excluding fuel or batteries used to store energy for vehicle propulsion, and (

e) has wheels of a diameter of 254 mm or more; Facts [ 6 ] The location of the alleged offences was on a bucolic

section of highway 19A in Royston, south of Courtenay. At this time of day on July 19 it was still daylight. [ 7 ] Staff Sgt Isles was driving northbound on highway 19A in an unmarked police vehicle at 7:30 in the evening, when he spotted what he described as a gentleman, about his age (Mr. Ryan was then 45), pedaling a motor assisted bicycle southbound along the shoulder of the highway at a “higher rate of speed than someone who was pedaling a bicycle” and he did not “see any leg movements, indicating that the person was not pedaling their bike”.

This occurred on the shoulder of the northbound side of the highway. [ 8 ] When he stopped the gentleman, S/Sgt Isles could see that the bicycle was a Schwinn Mountain Series bicycle that had a gas motor conversion added to it. [ 9 ] From pictures of the bicycle entered in evidence, in addition to the drive chain to the rear hub from the sprockets on the shaft of the pedal on the right side of the bicycle, there is a chain drive from a small gas motor attached to the inside of the frame to the rear wheel hub on the left side of the bicycle. [ 10 ] There is a small motor cycle type gas tank attached to the top of the frame and a wire-mesh basket attached behind the seat, resting on the rear mudguard. [ 11 ] Mr.

Ryan gave evidence that he had added to the stock Schwinn 21 gear pedal bicycle a 49 cc gas motor that he had bought over the internet. [ 12 ] The bicycle was equipped with a left side mirror, a front and back light, front disc brakes and rear caliper brakes. It was not equipped with signal lights. [ 13 ] Mr. Ryan says he cannot achieve more than 20 mph [32 k/h] with the motor assist. [ 14 ] I find on the evidence that Mr. Ryan was operating this bicycle using the gas motor.

He testified that he had crossed from the southbound side to the northbound side of the highway in order to cross the Trent River bridge using the sidewalk, which was only on the side bordering the northbound lane. It is uncontested that this bicycle was uninsured under the Insurance (Vehicle) Act and that Mr. Ryan was not licensed to drive a vehicle under the Motor Vehicle Act . [ 15 ] I also find this bicycle is a motor vehicle by definition. It is not a motor assisted cycle [which is not a motor vehicle, nor even a vehicle, by definition]. But it is the kind of vehicle that could not be insured, even if Mr.

Ryan had wanted to. He did inquire and was advised that it could not be insured. Analysis and Decision

[ 16 ] One issue is whether on these facts, Mr. Ryan can be guilty of operating a motor vehicle on a highway without motor vehicle insurance. [ 17 ] It strikes me that the prime purpose of section 24(3) of the Act is to require everyone who is operating a potentially harmful or lethal apparatus on a highway [those places where others of the public are also likely to be found] to have insurance to compensate those who might be injured by their actions.

In British Columbia the basic insurance can only be provided by the Provincial Government through its Crown Corporation, ICBC. [ 18 ] The Legislature has chosen not to impose that requirement of insurance on those operating a bicycle, even a bicycle powered by a low powered electric engine. But the very same bicycle powered by a low powered gasoline engine cannot be operated on a highway. It has made a bright-line decision to differentiate the two.

Because this gas powered bicycle cannot be equipped in all respects in compliance with the Motor Vehicle Act and Regulations [s. 219(1)], it cannot be insured for operation on a highway. [ 19 ] If a motor vehicle, which cannot be insured because it does not meet the statutory standards to do so, is operated on a highway, can the driver be convicted of operating that motor vehicle on a highway without insurance. In my view, the driver cannot.

I conclude that that provision was not intended by the Legislature to apply to that factual circumstance. [ 20 ] There are likely other offences which apply [section 219(1) is surely one of them] and of which the driver is guilty, but not this offence. [ 21 ] To use an analogy, it is the same as charging a driver for crossing a double solid line, or driving in the wrong lane of travel, when the vehicle slides out of its lane of travel on ice or snow. There maybe grounds for charging the driver for driving at a speed excessive for the conditions, but not for either of those two offences. [ 22 ] I acquit Mr.

Ryan of operating a motor vehicle contrary to

section 24(3 )( b). [ 23 ] Does the same or similar principle apply to driving such a vehicle without a driver’s licence ? In my view, it does not. The purpose of requiring the operator of a vehicle to have a driver’s licence is to ensure that every such operator has the required skill sets to operate that type of vehicle. Hence the different classes of licence required for different types of vehicles, and restrictions within a class. [ 24 ] Because this motorized bicycle is by definition a motor vehicle, the operator is required to have a driver’s licence . Mr.

Ryan was therefore required by law to have a driver’s licence when operating it on a highway, even though he was illegally doing so [section 219(1)]. [ 25 ] Although it was not argued, from the evidence in the case I find that Mr. Ryan has established due diligence. He asked those who reasonably might be expected to know, including police officers, if he was operating a motor assisted cycle. They advised him it was a motor assisted cycle. To be fair, others who also would be knowledgable had advised him it was not.

This is a grey area of law and even in the administration of the provisions and it is not surprising that he received conflicting advice. Both he and his mother had researched the matter fairly extensively. They mistakenly put too much reliance on what might be acceptable federally under its standards than what is required under provincial law. I find Mr. Ryan made reasonable efforts to learn what this vehicle was or was not. He was mistaken and that mistake led him to believe he was a bicyclist and not a motorcyclist. [ 26 ] For this reason I also acquit Mr.

Ryan of operating a vehicle on a highway without an appropriate driver’s licence . ___________________ H. W. Gordon Judicial Justice