R. v. Bott, 2011 ONCJ 558

COURT FILE No.: Kitchener 4460 999 00 3061008A DATE: 2010·08·13 Citation: R. v.

Bott , 2011 ONCJ 558 ONTARIO COURT OF JUSTICE BETWEEN: R. — AND — IAN BOTT Before Justice of the Peace M A Cuthbertson Heard on 26 April 2011 Reasons for Judgment released on 15 September 2011 Charge: Fail to Wear a Proper Helmet, s. 104(1) HTA References cited: Federal Motor Vehicle Safety Standards (FMVSS) Sec. 571.218 Standard No. 218 Snell Memorial Foundation, 2010 Standard for Protective Headgear For Use with Motorcycles and Other Motorized Vehicles The New Lexicon Webster’s Dictionary, Lexicon Publications Inc, New York, 1988 Statutes cited: Highway Traffic Act, s. 104 Provincial Offences Act, s. 47(3) R.R. 1990, Regulation 610 M.

McElroy ........................................................................................................ for the prosecution The defendant Ian Bott………………………………………………………………… on his own behalf JUSTICE OF THE PEACE M A CUTHBERTSON: 1: THE BACKGROUND [ 1 ] On 13 August 2010, Mr Ian Bott was stopped while riding his motorcycle at Trussler Rd in the City of Kitchener by Sgt Hinsperger of the Waterloo Regional Police Service. Affixed to the helmet worn by Mr Bott was what a movie goer or history buff might recognize as a ‘plume’ worn by a Roman Legionnaire on his army helmet.

Such a plume is often called a ‘helmet Mohawk’. The correct name for this based on historical references is a ‘helmet crest’. This helmet crest consisted of the ‘plume’ of soft strands, which were at least 5 centimetres in length, woven onto a strip of material with suction cups attached under the strip. It was affixed longitudinally from front to back beginning at the top of the helmet by the suction cups.

Mr Bott indicated the helmet crest was an accessory which he purchased from a company other than the manufacturer of the motorcycle helmet. [ 2 ] It was common ground between the parties that the motorcycle helmet, without the addition of the helmet crest, met the standards required under the pertinent legislation and regulation. Specifically, it had Snell Foundation and DOT (United States Dept of Transportation) certification. The issue in contention is whether the ‘helmet crest’ accessory was permitted under the same legislation and regulation.

2: THE LAW [ 3 ]

Section 104 of the Highway Traffic Act states: Motorcyclists to wear helmet 104.

(1) No person shall ride on or operate a motorcycle or motor assisted bicycle on a highway unless the person is wearing a helmet that complies with the regulations and the chin strap of the helmet is securely fastened under the chin. R.S.O. 1990, c. H.8, s. 104 (1) . Idem

(2) No person shall carry a passenger who is under sixteen years of age on a motorcycle on a highway unless the passenger is wearing a helmet that complies with the regulations and the chin strap of the helmet is securely fastened under the chin. R.S.O. 1990, c. H.8, s. 104 (2) . Bicyclists to wear helmet

(2.1) Subject to subsection 103.1 (2), no person shall ride on or operate a bicycle on a highway unless the person is wearing a bicycle helmet that complies with the regulations and the chin strap of the helmet is securely fastened under the chin. 2009, c. 5, s. 36 (1) . Duty of parent or guardian

(2.2) No parent or guardian of a person under sixteen years of age shall authorize or knowingly permit that person to ride on or operate a bicycle, other than a power-assisted bicycle, on a highway unless the person is wearing a bicycle helmet as required by subsection (2.1). 1993, c. 18, s. 1; 2009, c. 5, s. 36 (2) . Regulations

(3) The Minister may make regulations, (

a) prescribing standards and specifications for helmets referred to in subsections (1), (2) and (2.1); (

b) providing for and requiring the identification and marking of the helmets; (

c) exempting any person or class of persons from the requirements of this

section and prescribing conditions for exemptions. 1993, c. 18, s. 1; 2009, c. 5, s. 36 (3) . Codes

(4) Any regulation may adopt by reference in whole or in part, with the changes that the Lieutenant Governor in Council considers necessary, any code, and may require compliance with any code that is so adopted. R.S.O. 1990, c. H.8, s. 104 (4) . [ 4 ] Section 47(3) of the Provincial Offences Act states: Burden of proving exception, etc.

(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. R.S.O. 1990, c. P.33, s. 47 (3) . [ 5 ] R.R. 1990, Regulation 610 states: SAFETY HELMETS 1. A helmet worn by a person, (

a) riding on or operating a motorcycle; or (

b) operating a motor assisted bicycle, on a highway shall, (

c) have a hard, smooth outer shell lined with protective padding material or fitted with other energy absorbing material and shall be strongly attached to a strap designed to be fastened under the chin of the wearer; and (

d) be undamaged from use or misuse. R.R.O. 1990, Reg. 610, s. 1 . 2. The helmet referred to in

section 1 shall conform to the requirements of the, (

a) Canadian Standards Association Standard D230 Safety Helmets for Motorcycle Riders and shall bear the monogram of the Canadian Standards Association Testing Laboratories;

(

b) Snell Memorial Foundation and shall have affixed thereto the certificate of the Snell Memorial Foundation; (

c) British Standards Institute and shall have affixed thereto the certificate of the British Standards Institute; or (

d) United States of America Federal Motor Vehicle Safety Standard 218 and shall bear the symbol DOT constituting the manufacturer’s certification of compliance with the standard. R.R.O. 1990, Reg. 610, s. 2 . 3. A helmet worn by a person operating or riding a bicycle on a highway shall, (

a) have a smooth outer surface, be constructed so that the helmet is capable of absorbing energy on impact and be strongly attached to a strap designed to be fastened under the chin of the wearer; and (

b) be undamaged from use or misuse. O. Reg. 411/95, s. 1. 4.

(1) The helmet referred to in

section 3 shall conform to the requirements of one or more of the following standards: 1. Canadian Standards Association CAN/CSA D113.2-M89 (Cycling Helmets). 2. Snell Memorial Foundation B-95 (1995 Standard for Protective Headgear for Use with Bicycles). 3. Snell Memorial Foundation B-90 (1990 Standard for Protective Headgear for Use in Bicycling). 4. Snell Memorial Foundation B-90S (1994 Supplementary Standard for Protective Headgear for Use with Bicycles). 5. American National Standards Institute ANSI Z90.4-1984 (American National Standard for Protective Headgear for Bicyclists). 6.

American Society for Testing and Materials ASTM F1447-94 (Standard Specification for Protective Headgear Used in Bicycling). 7. British Standards Institute BS 6863:1989 (British Standard Specification for Pedal Cyclists’ Helmets). 8. Standards Association of Australia AS 2063.2-1990 (Part 2: Helmets for Pedal Cyclists). 9. Snell Memorial Foundation N-94 (1994 Standard for Protective Headgear: for Use in Non-Motorized Sports). 10. United States Consumer Product Safety Commission (CPSC) 16 CFR

Part 1203 Safety Standards for Bicycle Helmets. O. Reg. 411/95, s. 1; O. Reg. 38/03, s. 1 (1).

(2) The helmet shall bear the mark of the standards authority or the mark of the manufacturer showing that the helmet meets the prescribed standard. O. Reg. 411/95, s. 1.

(3) A reference to a standard in subsection (1) includes any amendments made to the standard, whether made before or after February 11, 2003. O. Reg. 38/03, s. 1 (2). 5. A person who is 18 years old or older is not required to comply with subsection 104 (2.1) of the Act. O. Reg. 411/95, s. 1. 3: POSITION OF THE PARTIES [ 6 ] From the prosecution perspective, the helmet crest represented a safety hazard. Sgt Hinsperger indicated that it might create a problem for rescue personnel to safely remove the face shield of the helmet should the wearer be involved in an accident.

As well, concern was expressed that the addition of the helmet crest may alter the capabilities of the helmet such that it may no longer afford the wearer the standard of safety required under the legislation and regulations. [ 7 ] Mr Bott testified the helmet crest actually improved the wearer’s visibility to other drivers thereby improving the safety of the wearer. He submitted the positioning of the device would have no negative impact on the face shield in the event of an accident. As well, he stated the device was certified not to dislodge at up to 200 miles per hour.

It was also constructed of materials that were pliable and the suction cups were not rigid. 4: ANALYSIS [ 8 ] The Snell Memorial Foundation in its 2010 Standard for Protective Headgear For Use with Motorcycles and Other Motorized Vehicles provides a starting point for my analysis, by setting out the importance of the standards for helmets. In its Special Note to Helmet Users, (see page 2) it states: There are four reasons for you to be interested in this Standard. 1. The use of motorcycles and other motorized vehicles imposes risks of death or permanent impairment due to head injury. 2.

The proper use of protective helmets can minimize the risk of death or permanent impairment. 3. The protective capacity of a helmet is difficult to estimate, particularly at the time of purchase or use. Protective capability is currently measured by destructive testing which is beyond the means of most helmet wearers.

4. Snell certification backed by ongoing destructive testing samples taken randomly from dealers and distributors identifies those helmet models providing and maintaining the highest levels of head protection.

Elsewhere in the document is included extensive descriptions of the elaborate and exacting standards applied by the Snell Foundation to the testing of the motorcycle helmets, in order to earn the Foundation’s certification. [ 9 ] In the document’s Introduction (see page 6) it states: The stiff outer shell protects by its capacity to spread a concentrated load at its outer surface over a large area of the liner and the wearer’s head. The crushable liner protects the head from direct impact by its capacity to manage impact energy.

Since there is no certain way to anticipate that severity of a head impact or whether the impact surface will be such that it will spread the load over the helmet or concentrate it at a single point, the most generally effective helmet will combine the strongest, stiffest possible outer shell with a liner chosen to limit the peak deceleration of the wearer’s head to within tolerable limits. Further pertinent information is provided, on page 7: The helmet must also resist penetration by sharp edged and pointed projections and projectiles.

This capacity is tested by placing the helmet on a head form and dropping a metal cone of specified mass and geometry onto the shell. The tip of this cone must not penetrate to the head form. Page 8 contains the following: This Standard also includes a test intended to determine whether the headgear may be removed from an unconscious accident victim quickly, easily and reliably in spite of any damage the headgear might reasonably be expected to sustain.

Traditional helmet architectures have satisfied this requirement so readily that many Standards including previous Snell Foundation Standards have not mentioned it. Even so, it is unthinkable that a headgear might protect its wearer in an accident only to thwart attempts at rescue afterward. [ 10 ] Under the Construction

section of the document (see page 9) it states: The assembled helmet shall have smooth external and internal surfaces. Any feature projecting more than 7mm beyond the outer surface must readily break away; all other projections on the outer surface shall be smoothly faired and offer minimal frictional resistance to tangential forces. [ 11 ] In the Modifications

section of the document (see page 12), the Snell Foundation describes acceptable changes to the exterior of a helmet by stating: Cosmetic changes to certified headgear are permissible. Such changes are generally limited to marking or trimming the headgear with manufacturer approved paint or tape. Otherwise, modifications to certified headgear effectively create new configurations which shall not have the confidence and certification of the Foundation until properly evaluated. Manufacturers must not place the Foundation’s certification label in any modified headgear without the Foundation’s written Authorization.

The Foundation recommends that helmet owners not modify or contract with someone else to modify their helmets. Any structural modifications may adversely affect a helmet’s protective capability.

The Foundation’s certification and, quite likely, all manufacturer warranties apply to the headgear only in its as manufactured conditions. [ 12 ] Mr Bott testified he was not aware of any Canadian, Snell Foundation or United States Department of Transportation certification for the helmet crest. [ 13 ] Mr Bott led no testimony as to whether he was capable of or had contracted with an appropriate testing laboratory for destructive testing of the helmet with the helmet crest attached in a manner consistent with paragraph 3 of the Special Note to Helmet Users of the document, as well as the requirements set out on pages 6 and 7, as noted above.

As well, he offered no expert to provide an opinion as to the effects of the helmet crest on the protective capacity of the helmet during an accident. [ 14 ] Mr Bott did state that the helmet crest according to the information on the packaging was certified not to become detached at up to 200 miles per hour but did not provide evidence as to the source of that certification or its merit. If indeed the helmet crest would not readily break away, then it falls afoul of the requirement under the Construction

section to do just that. It certainly projected more than 7 mm beyond the helmet which is not in concert with the requirements of that section. [ 15 ] Of additional concern is the possible effect of exactly the opposite of Mr Bott’s assertion that the device will not detach. If the helmet crest became detached due to the forces sustained by it in an accident, then where might it end up? Could it potentially lodge itself in such a manner to impede the operation of the visor or the removal of the helmet so as to make it difficult for emergency workers to assist the helmet wearer?

Could its suction cups or other parts lacerate the helmet wearer or another party to an accident? This Court has no professional expertise on such questions. However, common sense suggests the physical forces unleashed in an accident can affect such items in dynamic ways, with potentially unpredictable, severe and tragic consequences. I am not satisfied that the device would remain affixed to the helmet in an accident. It could be dangerous to the well being of the helmet wearer and/or others, if dislodged. [ 16 ] I note under the Modifications

section that changes to a helmet should be limited to marking or trimming with paint or tape. Any other modification would effectively create a new configuration which removes the certification of the Snell Foundation from the helmet. [ 17 ] Webster’s Dictionary defines modification as – ‘a partial change produced by modifying’. Modify is defined as – ‘to change to some extent but not completely’.

[ 18 ] In my view, the addition of the helmet crest to the helmet was just such a modification as per the above dictionary

definitions, thereby rendering the helmet as without certification under the legislation and regulation. [ 19 ] The U.S.A. Federal Motor Vehicle Safety Standards (FMVSS) Sec. 571.218 Standard No. 218 which motorcycle helmets must meet for DOT certification, states the following in S5.4 Configuration: Each helmet shall have a protective surface of continuous contour at all points on or above the test line described in S6.2.3. [ 20 ] In S5.5 Projections, it states: A helmet shall not have any rigid projections inside its shell.

Rigid projections outside any helmet’s shell shall be limited to those required for operation of essential accessories, and shall not protrude more than 0.20 inch (5mm). [ 21 ] S5.6.1 sets out permanent labelling requirements of a helmet manufacturer. At S5.6.1(f), it states: Instructions to the purchaser as follows:

(3) Make no modifications. [ 22 ] S7.2.1 sets out exacting Penetration test procedures. It states: The penetration test is conducted by dropping the penetration test striker in guided free fall, with its axis aligned vertically, onto the surface of the complete helmet, when mounted as specified in S6.3, at any point above the test line, described in S6.2.3, except on a fastener or other rigid projection. [ 23 ] Webster’s Dictionary defines rigid as –‘inflexible’.

Based on this definition, I agree with Mr Bott that the helmet crest and its pliable suction cups cannot be defined as rigid projections, as per S5.5. [ 24 ] However, I am not persuaded the above sections of the FMVSS taken in their entirety can be interpreted as permitting the helmet crest to be affixed to a motorcycle helmet simply because it is not a rigid projection.

S5.5 does not suggest that a non-rigid projection may be affixed to a helmet rather it simply defines the permitted parameters of a fixed projection or projections (for example: metal snap fasteners to attach a removable visor with corresponding dome fasteners) on the helmet. [ 25 ] Mr Bott offered no expert to provide an opinion on what would happen if the helmet crest was attached during a S7.2.1 penetration tests or on the effects of the helmet crest on the protective capacity of the helmet during an accident. [ 26 ] As per the Webster dictionary

definitions noted above, the addition of the helmet crest was a modification which was not in concert with S5.6.1(f).

This modification, which was above the test line described in S6.2.3, effectively altered the ‘protective surface of continuous contour at all points on or above the test line’ required by S5.4. [ 27 ] I also note neither the standards established by the Snell Foundation nor the FMVSS authorize an attachment to a helmet to enhance the visibility of the motorcyclist to other drivers. [ 28 ] Finally, while never articulated as such, Mr Bott was seemingly seeking to apply the provisions of s. 47(3) of the Provincial Offences Act to the helmet standards set out in regulation 610.

If that was the case then the burden of proof ‘that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant’ rests with the defendant.

The above analysis does not satisfy this Court that he has met this test. 5: DECISION [ 29 ] Pursuant to the Snell Foundation’s 2010 Standard for Protective Headgear For Use with Motorcycles and Other Motorized Vehicles and the Federal Motor Vehicle Safety Standards Sec. 571.218 Standard No. 218 (required for DOT certification), I find that the attachment of the helmet crest by Mr Bott rendered his motorcycle helmet to be uncertified. [ 30 ] Therefore, Mr Bott did commit the offence of Fail to Wear a Proper Helmet, pursuant to s. 104 HTA. A conviction will be registered.

Released: “September 15, 2011” Signed: “Justice of the Peace M A Cuthbertson”