R. v. Wojtkiw, 2021 BCSC 194

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wojtkiw, 2021 BCSC 194 Date: 20210209 Docket: AJ04573277-1 Registry: Victoria Between: Regina And Terrence J. Wojtkiw Before: The Honourable Madam Justice Murray On appeal from: An order of the Provincial Court of British Columbia, dated October 22, 2019 ( R. v. Wojtkiw, 2019 BCPC 245 , AJ04573277-1 ) Reasons for Judgment Counsel for the Crown: N. Grabe Appearing on his own behalf: T. Wojtkiw Place and Date of Hearing: Victoria, B.C. August 10, 2020 Place and Date of Judgment: Victoria, B.C.

February 9, 2021 Introduction [ 1 ] The Crown appeals the acquittals entered by Judicial Justice H.W. Gordon on October 22, 2019 on charges that Mr. Wojtkiw:

a) Operated a motor vehicle without insurance contrary to s. 24(3) (

b) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 ( MVA );

b) Operated a motor vehicle without a licence contrary to s. 13(1) (

a) of the MVA ; and

c) Passed vehicles on the right off the roadway contrary to s. 158(2) (

b) of the MVA . [ 2 ] In his judgment the Judicial Justice found that the vehicle Mr. Wojtkiw was operating, a “Tag 500” scooter, was a motor assisted cycle (“MAC”) under the MVA and the Motor Assisted Cycle Regulation , BC Reg. 151/2002 ( MAC Regulation ). [ 3 ] The Crown does not take issue with the learned Judicial Justice’s findings of fact. The appeals are based on what it contends were errors of law made by the Judicial Justice, namely his

interpretation of certain provisions of the MVA and the MAC Regulation . Issue [ 4 ] The issue before me is whether the evidence is reasonably capable of supporting the Judicial Justice’s decision. [ 5 ] This appeal turns on whether the scooter Mr. Wojtkiw was riding is a MAC or limited speed motorcycle. The former does not require the operator to have a driver’s licence or insurance while the latter does. [ 6 ] For the reasons that follow, I find that the Judicial Justice unreasonably concluded that Mr. Wojtkiw’s scooter is a MAC as defined under the MVA and the MAC Regulation .

Background [ 7 ] By way of brief background, on July 10, 2018 at 8 a.m., police observed Mr. Wojtkiw driving northbound on the shoulder of Highway 17. The vehicle caught the police officer’s attention as it looked like an electric scooter but bore no licence plate. When the scooter passed the police vehicle on the shoulder the officer clocked his speed with his laser at 48 km/hr on what the officer described as flat ground. The officer pulled Mr. Wojtkiw over.

[ 8 ] Mr. Wojtkiw did not have a driver’s licence. As an aside, he still does not. He explained to the officer that he did not believe that he needed one as he was riding a bicycle, pointing to the pedals. At trial he testified that he has been pulled over on his scooter multiple times by police, but he said they “usually let me go once they see the pedals.” [ 9 ] At the time he was pulled over, the pedals of Mr. Wojtkiw’s electric scooter were unopposed in the 12 o’clock position and were mounted behind the seat of the scooter, making it impossible to use the pedals without adjusting them. [ 10 ] Mr.

Wojtkiw testified that he was riding with the pedals in that position so he could ride close to the curb. He testified that he can change position of the pedals in two minutes using a wrench that he carries with him at all times in case he runs out of power. He said he purchased the scooter because he did not have a driver’s licence and that getting one would be difficult and expensive given his “horrible” driving record in Alberta. He also admitted that he used the battery, not the pedals, to propel it. [ 11 ] Mr.

Wojtkiw testified that his scooter can reach a top speed of 35 km/hr and attributed his speed of 48 km/hr when clocked to the gradual decline of the highway from Piedmont Drive to Sayward Road where he was pulled over. Although he did admit that he was still able to maintain a speed of 48 km/hr for about a kilometre down the highway after the decline. Legislative Framework [ 12 ] In R. v. Ghadban , 2020 BCSC 664 [ Ghadban ], Jenkins, J. set out the applicable legislative framework under the MVA and the MAC Regulation as follows: 6 The relevant provisions of the Act [ MVA ] are as follows.

Section 1 defines a "motor assisted cycle": "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) 7

Section 119 states: "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 skates; 8 Of note is that a "cycle" must be "propelled by human power". 9

Section 182.1(3) authorizes the Insurance Company of British Columbia to make regulations respecting MACs. 10 The applicable Motor Assisted Cycle Regulation , B.C. Reg. 56/2018 (" MAC Regulation "), which includes amendments to March 22, 2018, states: Motors 1 The motors of a motor assisted cycle must (

a) be electric motors, (

b) have continuous power output ratings that in total do not exceed 500 watts, and (

c) not be capable of propelling the motor assisted cycle at a speed greater than 32 km/hr on level ground. Wheels 2

(1) The wheels of a motor assisted cycle must be 350 mm or more in diameter.

(2) A motor assisted cycle must not have more than 3 wheels in contact with the ground. Motor shut-off requirement 3

(1) A motor assisted cycle must be equipped with a mechanism, separate from the accelerator controller, that (

a) allows the driver to turn the motors on and off from a normal seated position while operating the motor assisted cycle, or (

b) prevents the motors from turning on or engaging before the motor assisted cycle attains a speed of 3 km/hr. (2)The motors of a motor assisted cycle must turn off or disengage if (

a) the operator stops pedaling, (

b) an accelerator controller is released, or (

c) a brake is applied.

Standard of Review [13] Section 822(1) of the Criminal Code, R.S.C. 1985, c. 46, provides that ss. 683 to 689 apply to

summary acquittal appeals.Section 686(1) states that the court may allow an appeal where the verdict is unreasonable and cannot be supported by the evidence, orwhere the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law. [14] The test to determine whether a verdict is unreasonable is whether on the whole of the evidence “the verdict is one that aproperly instructed jury, acting judicially, could reasonably have rendered”: R. v. Yebes, [1987] 2 S.C.R. 68; R. v. Biniaris, 2000 SCC 15,at para. 36.

The appeal judge must consider the trial judge’s reasons, and may examine and reweigh the evidence to a limited extent todetermine whether the trial judge’s decision was unreasonable: R. v. Burns, (SCC), [1994] 1 S.C.R. 656. However, duedeference must be given to the factual findings of a trial judge: Housen v. Nikolaisen, 2002 SCC 33, at paras. 22 and 24. [15] In terms of questions of law, a trial judge is presumed to know the law: HMTQ v. Pomeroy, 2007 BCSC 142.

In Pomeroy, atpara. 39, Romilly, J. stated: A judge is presumed to know and properly apply the law, and to have taken into account all aspects of all relevant evidence. Hence, as ageneral proposition, succinct analysis or silence on a particular issue is not an error in law. Where a comment is open to more than oneinterpretation, the

interpretation consistent with the judge's presumed knowledge of the law prevails. That presumption can only bedisplaced if an error in law is manifest in the judge's comments. [Citations omitted.] [16] With the law in mind I turn to the issue: whether the evidence is reasonably capable of supporting the Judicial Justice’s decision.I will start by considering the trial judgment. Trial Judgment [17] The Judicial Justice’s decision turned on whether Mr. Wojtkiw’s scooter is a MAC under the MVA and the MAC Regulation. [18] The Judicial Justice described the scooter as follows: 11 …The scooter is a Tag 500.

It appears in size and shape to be something between a large scooter and a mini motor cycle, what inanother context would be a mixed breed or mongrel. 12 Like a scooter, it has a flat pan for resting the operator's feet on. The other fact of significance is that the arms of the pedals werenot opposing but were both in the same position at a backward angle. … 14 The spec sheet for the Tag 500 was entered in evidence.

Among other facts listed, it has a 500 watt motor and the maximumspeed is governed to 32 km/hr… [19] The Judicial Justice began his analysis by considering whether the scooter complied with the requirement under s. 1 of the MVAthat an MAC have pedals or hand cranks that would allow it to be propelled by human power. Despite the fact that the pedals had beenrepositioned by Mr.

Wojtkiw (they were side by side and dysfunctional without adjustment), he concluded that the repositioning, whileunconventional, did not preclude the scooter from falling within the definition of an MAC under the legislation. [20] He then went on to consider the issue regarding the scooter’s maximum speed and found that although the specifications said thescooter was governed to 32 km/hr, the scooter could and did exceed that speed independent of the slope of the highway.

Since Mr.Wojtkiw knew the maximum speed requirements of a MAC and he knew his speed exceeded 32 km/hr on July 10, 2018, he could notrely on a due diligence defence. [21] The Judicial Justice found that at some point before July 10, 2018 the speed governor was disabled or had malfunctioned, whichin itself did not preclude the scooter from being a MAC. He reasoned, for example, that “if the braking system was out of proper repair”such that it did not meet the prescribed criteria under the MAC Regulation, that would not “automatically remove” the scooter from beinga MAC.

Lastly, the Judicial Justice held that, regardless of whether the scooter is a MAC, Mr. Wojtkiw could not be found guilty ofdriving without insurance because even if he wished to insure his scooter, ICBC would not insure it. [22] In coming to his conclusion the Judicial Justice disagreed with the result in R. v. Rei, 2012 BCSC 1028, in which Justice N.Brown held that a scooter was not a MAC because the pedals had been removed.

In particular the Judicial Justice disagreed with N.Brown, J’s finding that an essential marker of a MAC is usable pedals to which he stated as follows: 73 I agree with his analysis in paragraph 19 but not with respect to his analysis in paragraph 20. I note in paragraph 19 that he doesnot decide anything if the pedals are attached. He does not say so directly, but in paragraph 20 he infers that a motor assisted cyclewithout pedals is a limited speed motorcycle. The other alternative inference is that the scooter is nothing, neither a motor assisted cyclenor a motor vehicle.

Because if it was motor vehicle it must be insurable if it met the requirements of section 219(1) [of the MotorVehicle Act]. 74 Based on the view taken by ICBC [see paragraph 70 above], if the cycle was unregisterable and uninsurable it strikes me that theMotor Vehicle Act should not be interpreted so as to make it an offence of operating without insurance a motor vehicle for which theoperator could not have obtained insurance even if he or she wanted to. … 77 If the legislation requires a vehicle to be registered and insured, it surely must permit a person to register and insure that vehicle,

which clearly ICBC says cannot be done. 78 Although I have concluded pedals were not an issue in this case, if by removing the pedals the vehicle thereby becomes a limited speed motorcycle, then in my view it should be registerable and insurable as such. I infer ICBC does not consider the cycle to be a limited speed motorcycle. If they did, then the logical conclusion is that it is registerable and insurable. 79 On the reported testimony of Mr.

Carpinetti as recited in Rei , it is no longer a motor assisted cycle, but it remains unregisterable and uninsurable, even if the operator wished to register and insure it. Analysis [ 23 ] In Rei , the court outlined the intent of the legislature with respect to MACs: 16 The provincial regulations derive from federal government Transport Canada provisions, with minor modifications. For example, the federal regulations refer to propulsion coming from muscle power whereas the provincial regulations illustrate the same concept by stating MACs must have a hand crank or pedal attached to them.

It is not the difference in wording that is worth noticing but the concept common between them, human propulsion. This is an essential component of a MAC. This is what sets it apart from all other classes of motorized cycles. The electric motor on Mr. Rei's scooter is supposed to supplement, not supplant, human propulsion. … 20 At first look, the police officers' 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; and one of those essential markers for a MAC being pedals or hand cranks attached to the cycle and usable for their intended purposes. [My emphasis.] [ 24 ] N. Brown, J. held that once Mr.

Rei removed the pedals from his scooter, “he removed any effective way for him to propel the scooter himself, and it no longer fell within the class of a MAC.” [ 25 ] In Ghadban , Jenkins, J. came to the same conclusion: 24 After referring to Rei , the trial judge stated: [23] Although the Rei decision is distinguishable on its facts, Mr.

Justice Brown's comments on the legislative intent and meaning of "motor assisted vehicle" arguably indicated an intention to include only devices where their primary means of propulsion is human (the cycle part) and that they are only intended to be "assisted" or supplemented by means of electric propulsion. With that principle in mind, I have concluded that the Motorino XMr is really an electric scooter with attached, removable pedals that may be used for human propulsion, but only if one is moved to do so. 25 In the case of Mr. Ghadban and his Motorino XMr, Mr.

Ghadban testified that in the five years he had owned the Motorino XMr, he had never pedalled the cycle and clearly had no intention of doing so, seeing that the weight of the Motorino XMr, with a driver's weight of 150 pounds, for example, would total over four hundred pounds. 26 On this basis, even if the wheels met the regulation, I agree with the trial judge's conclusion that a Motorino XMr does not comply with the intent of the legislation which was for a MAC to supplement or assist the human power required to pedal the vehicle.

As such, I find the evidence is more than reasonably capable of supporting the trial judge's conclusions. [ 26 ] Mr. Wojtkiw modified his scooter to the extent that it rendered the pedals practically unusable. Although the scooter could be pedalled if he sat towards the back of his seat, he still required a wrench to adjust the position of the pedals—a process that took him at least two minutes and would require him to pull over. [ 27 ] He testified that his scooter weighs approximately 250 lbs., he weighs 140 lbs. and he carries 40-50 lbs. of gear and tools.

With his pedals in an unusable position and the significant weight of his scooter, it is obvious that Mr. Wojtkiw had been using the electric motor to supplant, not supplement, propulsion of the scooter. This he admitted. [ 28 ] As per Rei , usable pedals are an “essential marker” of a MAC: para. 20. Because Mr. Wojtkiw’s scooter does not have usable pedals and the motor does not assist his pedalling, the Judicial Justice erred in finding that the repositioning of the pedals did not preclude Mr.

Wojtkiw’s scooter from being a MAC under s. 1 of the MVA . [ 29 ] With respect to the scooter’s speed, regardless of whether the speed governor was disabled or malfunctioned, it is clear that the motor of Mr. Wojtkiw’s scooter could and did propel him over 32 km/hr on level ground, contrary to the requirements under s. 1 (

c) of the MAC Regulation . On this fact alone, it was not reasonable for the Judicial Justice to conclude that the scooter met the criteria of a MAC under the MAC Regulation . [ 30 ] Finally, whether or not Mr. Wojtkiw’s scooter is insurable by ICBC is irrelevant to whether it is a MAC under the legislation. I acknowledge that a gap in the insurability of limited speed motorcycles may be problematic for Mr. Wojtkiw and those who operate similar scooters. But the fact that Mr. Wojtkiw may not be able to insure his scooter does not make it a MAC. [ 31 ] I am sympathetic to Mr.

Wojtkiw’s concerns about obtaining a driver’s licence and insurance to operate his scooter—if insurance is available. I also understand that Mr. Wojtkiw relies heavily on his scooter to travel throughout Victoria, particularly to travel to and from work. However, I cannot overlook the fact that, as this court has held in Rei and Ghadban , the essential components of a MAC

under the MVA and the MAC Regulation are functional pedals with a motor to assist pedalling, as well as a motor that does not propel the cycle over 32 km/hr on level ground. Mr. Wojtkiw’s scooter does not meet either of these requirements. Conclusion [ 32 ] The Judicial Justice’s decision is unreasonable and cannot be supported by the evidence. [ 33 ] I allow the Crown’s appeal and order a new trial pursuant to s. 834 of the Criminal Code . “The Honourable Madam Justice Murray”