R. v. Calderone Date:, 2015 BCPC 114

Citation: R. v. Calderone Date: 20150508 2015 BCPC 0114 File No: AH72405022 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC COURT REGINA v. Alejandro Eytcheson CALDERONE REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE BURGESS Appearing for the Crown: Cst. Yakanowsky Counsel for the Defendant: Michael Stephenson Place of Hearing: Kelowna , B.C. Dates of Hearing: 21 Jan. 2014, 19 Sept. 2014 Date of Judgment: May 8, 2015

[ 1 ] Mr. Calderone is before the court on Violation Ticket AH72405022, which is a two- count violation ticket. The violation ticket charges Mr. Calderone as a “cyclist.” [ 2 ] Count one is an allegation of “no driver’s licence” contrary to the Motor Vehicle Act , RSBC 1996, c. 318, Section 24(1). Count two is an allegation of “no insurance” contrary to the Motor Vehicle Act Section 24(3) (b). [ 3 ] The matter was first before the court on 21 January, 2014.

On that date Crown applied to amend the Violation Ticket from “cyclist” to “driver.” The matter was adjourned in order for the disputant to prepare his defence. [ 4 ] The matter was next before the court on 19 September, 2014. On that date the parties presented an agreed statement of fact. Based on the agreed facts and in accordance with Section 100(2) of the Offence Act , RSBC 1996, c. 338 , the Violation Ticket is amended to “driver” from “cyclist.” [ 5 ] After argument, I reserved my decision.

FACTS [ 6 ] The agreed-to facts are that on February 12, 2013, Cst Yakonowsky with the RCMP was at a call operation on Enterprise Way, City of Kelowna, Province of British Columbia at 9:40 a.m. It was daylight. The day was dry. The officer heard the distinct sound of a small gas powered engine. The officer observed Mr. Calderone riding a red and black cycle that was equipped with a gas powered engine. The cycle was being propelled by the gas engine and not by Mr. Calderone using the pedals on the cycle. The engine was under 50 c.c.’s. [ 7 ] There was exhaust coming from the muffler.

The cycle was not equipped with lights or safety devices. The cycle did not have brakes on each wheel. The cycle did not have a licence plate. [ 8 ] The officer stopped Mr. Calderone. Mr. Calderone produced a B.C. Identification Card to the officer. Mr. Calderone did not have a valid driver’s licence. [ 9 ] The Disputant admits that he did not have a valid driver’s licence and concedes on count one. I therefore find Mr. Calderone guilty on count one. ARGUMENT ON COUNT TWO [ 10 ] The Crown argues that the cycle operated by Mr.

Calderone with the gas engine installed is a motor vehicle described as a limited speed motorcycle. The Motor Vehicle Act requires a limited speed motorcycle operator to have a valid driver’s licence, a licence plate, brakes, lights, and safety devices and that the vehicle be insured. [ 11 ] The disputant admits that the cycle was not a motor assisted cycle as defined in the Regulation and agrees that it was a motor vehicle. [ 12 ] The disputant argues that R. v.

Ryan , 2012 Carswell BC 669, 2012 BCPC 67 , 100 W.C.B. (2d) 52, [2012] B.C.W.L.D. 4015, [2012] B.C.W.L.D. 4014, [2012] B.C.W.L.D. 3993, 9 C.C.L.I. (5 th ) 334 stands for the proposition that despite this vehicle being a motor vehicle and lacking the required equipment of a motor vehicle, the requirement for insurance does not apply to this vehicle. ANALYSIS [ 13 ]

Section 119 of the Motor Vehicle Act defines a “cycle” as: “ cycle” means a device having any number of wheels that is propelled by human power and on which a person may ride and includes a motor assisted cycle, but does not include a skate board, roller skates or in-line roller skate. [ 14 ] The device operated by Mr. Calderone, without the addition of the gas engine, would be a “cycle” within the meaning of the Motor Vehicle Act . [ 15 ]

Section 1 of the Motor Vehicle Act defines a “motorcycle” as: “ motorcycle” means a motor vehicle that runs on 2 or 3 wheels and has a saddle or seat for the driver to sit astride. [ 16 ]

Section 1 of the Motor Vehicle Act defines a “motor assisted cycle” as: “ 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). [ 17 ]

Section 182.1 states: 182.1 (1) a person who is under the age of 16 years commits an offence if that person operates a motor assisted cycle on a highway.

(2) A parent or guardian of a person under the age of 16 commits an offence if the parent or guardian authorizes or knowingly permits the person to operate a motor assisted cycle on a highway.

(3) The Insurance Corporation of British Columbia may make regulations respecting motor assisted cycles including, without limitation, regulations prescribing (

a) the criteria that must be met by a device in order to qualify as a motor assisted cycle for the purpose of this Act, (

b) the requirements that must be met in relation to operators of, and equipment of, and equipment attached to, motor assisted cycles, and (

c) restrictions on what may be attached to or carried on a motor assisted cycle. [ 18 ] There is a regulation proclaimed pursuant to

Section 182.1 prescribing the criteria of a motor assisted cycle, being Motor Vehicle Act Regulation B.C. Reg 151/2002 . Under that regulation, there must not be more than one motor for propulsion on the cycle, it must be an electric motor, it must have a continuous power output of not more than 500 watts and the motor must not be capable of propelling the motor assisted cycle at a speed greater than 32 km/h on level ground. The motor assisted cycle must not be equipped with a generator, alternator or similar device powered by a combustion engine. [ 19 ]

Section 1 of the Motor Vehicle Act Regulation B.C. Reg. 26/58 defines a “limited speed motor cycle” as: “ limited speed motor cycle” 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 1.5kW, (

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

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

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

e) has wheels of a diameter of 254 mm or more. A “limited speed motor cycle” can be powered by either a gas or an electric motor. [ 20 ] I conclude that the cycle as modified and operated by Mr. Calderone is a motor vehicle (which point is conceded by the disputant) and also a limited speed motorcycle within the definition of the Motor Vehicle Act Regulations. [ 21 ] Pursuant to

section 291 of the Motor Vehicle Act , a person must not drive a motor vehicle on a highway unless it is equipped in all respects in compliance with the Act and the Regulations . [ 22 ] Under the Regulations , a motor vehicle must be equipped with certain equipment, such as lights and turn signals (Division 4), brakes (Division 5), horn, mirrors and mudguards (Division 7). In addition, a limited speed motorcycle, being a motor vehicle is required to have a licence plate according to

section 3 of the Motor Vehicle Act . [ 23 ] Section 24(3) (

b) of the Motor Vehicle Act states: 23(3) a person must not drive or operate a motor vehicle or trailer on a highway unless (

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. [ 24 ] The vehicle operated by Mr. Calderone is a motor vehicle more particularly defined as limited speed motorcycle and as such it must meet the requirements of the Motor Vehicle Act and Regulations. [ 25 ] Judicial Justice Gordon in R. v. Ryan dealt with a similarly equipped vehicle as in this case. In that case the accused was likewise charged with no insurance under Section 24(3) (

b) of the Motor Vehicle Act . The Judicial Justice concluded that the vehicle was

a motor vehicle by definition and not a motor assisted cycle. [ 26 ] At paragraphs 17 through 19 the Court states: 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. [ 27 ] With respect, I disagree with the conclusion of the Judicial Justice. [ 28 ] The Legislature, by defining a motor assisted cycle and prescribing the particular power source for such a vehicle and limiting that power source to that of an electric motor of a continuous power output rating of not more than 500 watts and defining a limited speed motorcycle to include either a limited size gas engine or limited power output electric motor, clearly intended the provisions of section 24(3) to apply to these factual circumstances.

If it did not have such intent, it could have included a gas engine as a power source for a motor assisted cycle in the Regulations. [ 29 ] By not including a gas engine as a power source for a motor assisted cycle, the Legislature clearly set out its intention that section 24(3)(

b) applies to these factual circumstances. [ 30 ] This conclusion is supported by the decision of the Supreme Court of British Columbia in R v. Rei , 2012 BCSC 1028 . In R v. Rei , the Honourable Mr. Justice N. Brown dealt with an appeal regarding an electric powered motor assisted cycle from which the Appellant had removed the pedals. The Appellant had been charged on two separate occasions with operating a motor vehicle without insurance. Two separate hearings were held before two different Judicial Justices. Mr. Rei was convicted at both hearings and Mr. Rei appealed those convictions. [ 31 ] Mr. Justice N. Brown in his decision at paragraph 8 quotes

Section 1 of the Motor Vehicle Act and states at paragraph 9: A cycle matching these criteria is classified as a motor vehicle. Anyone driving one, therefore must have a driver’s licence and the owner has to register and insure it. [ 32 ] And at paragraph 20 Mr. Justice N. Brown states: At first look, the police officer’s ticketing of Mr. Rei might seem a case of overly zealous policing or bureaucracy run amok. But the dividing line between cycles that should be registered and insured and their operation confined to licensed drivers, and those that do not, has to be marked in some way.

As the legislation stands, it has marked out the dividing lines between cycles that do not need registration, insurance and a licensed operator and those that do… [ 33 ] In R. v. Fox , 2003 BCPC 346 [2003] BCJ .No. 2346, 45 MVR (4 th ) 199, Judicial Justice of the Peace Joseph-Tiwary, concluded that a go-cart being operated on a highway was a motor vehicle and that it could not be insured. The fact that the go-cart was not insurable was not relevant as to whether or not the vehicle was insured. At paragraph 18, the court states, “The go-cart was a motor vehicle within the meaning of the Act .

The fact that insurance could not be purchased is irrelevant.” [ 34 ] In R. v. Mohammed Al-Faouri , unreported Vancouver Registry File No. AH68042812, Judicial Justice Schwartz considered a cycle similarly equipped as in this case and stated at paragraph 15: This gas powered bicycle which was operated by Mr. Al-Faouri on July 27, 2012 is a motor vehicle within the meaning of the Motor Vehicle Act . It is a type of motor vehicle which is not able to be insured for on-road use so should not be operated on a public roadway.

I have considered each case provided to me, and I find that is not relevant that insurance could not be purchased for this motor vehicle. The court convicted Mr. Al-Faouri of driving without insurance. [ 35 ] The offence of operating a motor vehicle without insurance is a strict liability offence and as such the defence of due diligence is available to the disputant. There was no evidence before the court nor argument regarding due diligence so I need not consider such a

defence here. [ 36 ] The cycle that Mr. Calderone was operating on February 12, 2013 is a motor vehicle as defined in the Motor Vehicle Act . A motor vehicle requires insurance for it to be operated on a highway. It is irrelevant that Mr. Calderone could not insure the vehicle. Mr. Calderone did not have the required insurance for that motor vehicle. Crown has proven its case beyond a reasonable doubt and I therefore find Mr. Calderone guilty on count two. _____________________ Burgess, JJ.