IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Wojtkiw is charged with three counts under the Motor Vehicle Act. The three charges arise from his use of an electric scooter on a highway in Saanich on July 10, 2018.

[2]           The three charges are driving without insurance contrary to section 24(3)(b), driving without a driver’s licence contrary to section 13(1)(a) and passing vehicles on the right off the roadway contrary to section 158(2)(b) of the Act.

[3]           Two issues arise. One issue is whether this scooter is a motor assisted cycle within the meaning of the Motor Vehicle Act. The other issue is, if it is not a motor assisted cycle but is a motor cycle, has Mr. Wojtkiw established a defence of due diligence.

[4]           On July 10, 2018 Cpl Seutter was driving northbound on Highway 17 (also known as the Patricia Bay Highway) near the Royal Oak onramp in Saanich. The time was approximately 8 a.m.

[5]           The traffic flow was heavy. He noticed an electric scooter driving northbound on the shoulder and it did not look like a bicycle. He said what looked odd to him was its rate of speed, it had no licence plate, the driver was wearing a motorcycle helmet, the driver was not moving his legs and it had no resemblance to a bicycle. The rate of speed was consistent with a limited speed motorcycle.

[6]           He eventually got ahead of the scooter several kilometres farther along the highway. He pulled over to the shoulder of the road just before Sayward Road and waited for the scooter.

[7]           He saw it approach still on the paved shoulder and travelling at what he estimated was a speed of 45 to 50 km/h.

[8]           He aimed his laser (lidar) at the scooter and obtained a speed of 48 km/h at a distance of 104.8 metres.

[9]           He is trained on the use of laser and is an instructor on its use. He tested the unit at the beginning and at the end of his shift that day and was satisfied it was working according to manufacturer’s specifications.

[10]        He stopped the scooter and identified the operator, Mr. Wojtkiw, by way of a BC Services Card. Cpl Seutter determined that Mr. Wojtkiw did not have a driver’s licence.

[11]        The officer took pictures of the scooter which are entered in evidence. 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 in another 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 were not opposing but were both in the same position at a backward angle.

[13]        Mr. Wojtkiw testified he positioned the pedals this way as the downward arm caught the roadway if the scooter was leaning on that side when turning a corner. He testified that he flips the pedals back to an opposing position and pedals if he runs out of power.

[14]        The spec sheet for the Tag 500 was entered in evidence. Among other facts listed, it has a 500 watt motor and the maximum speed is governed to 32 km/hr. The spec sheet has on it the name of the dealer who sold the scooter to Mr. Wojtkiw.

[15]        Mr. Wojtkiw testified that he bought the scooter new from a local scooter shop.

[16]        A plate on the back where a licence plate would be attached has the dealer’s name on it with the words “I’m Electric”.

[17]        Mr. Wojtkiw testified he has ridden this scooter for the previous four to five years and uses it year round to travel around the Greater Victoria area to work. He has driven it for 33,000 km.

[18]        He does not possess a driver’s licence.

[19]        In respect of the speed of his scooter when Cpl Seutter sighted him, Mr. Wojtkiw says he does not know how fast he was going but put forward some evidence that the highway has a decline in that area and that may have caused the scooter to pick up speed. The degree of decline and the distance of the decline from the laser reading was strongly disputed by Cpl Seutter.

[20]        Mr. Wojtkiw testified that he has not done anything to the scooter to override or change the speed that could be attained by the scooter from what it was when he bought it.

[21]        Mr. Wojtkiw also testified that since he bought the scooter, he has been stopped several times by different police officers because it did not have a licence plate and they thought Mr. Wojtkiw required a licence and insurance for the scooter, but having examined the scooter and made some inquiries, were satisfied the scooter was a motor assisted cycle and let him go without any charges. The look of the scooter has not changed prior to July 10, 2018.

[22]        On cross examination, when challenged that the pedals had been welded on after purchase, Mr. Wojtkiw testified that he had observed the scooter in its box from the manufacturer when he bought the scooter and it had pedals and a chain.

[23]        From the evidence, I see two issues arising. The first is whether on the evidence, the scooter is a motor assisted cycle. If it is not, has Mr. Wojtkiw established a defence of due diligence.

[24]        I infer from the submissions of Cpl Seutter that the Crown’s position starts with the premise that a motor assisted cycle must look like a bicycle with an electric motor to assist the cyclist to pedal. If the vehicle does not look like a bicycle, it offends the spirit of the legislation.

[25]        I note that on the ICBC printout from the internet that was produced at the hearing, there is a two column section comparing a motor assisted cycle with a limited speed motorcycle.

[26]        Each column has two small pictures of an example of what each might look like. Under motor assisted cycles is a picture of a regular looking bicycle and of a scooter.

[27]        So, the administrators of this legislation clearly do not hold that same premise.

[28]        Applying the plain words of the legislation, in terms of structure and general content, Mr. Wojtkiw’s scooter in my view meets the statutory definition of a motor assisted cycle, with possibly two exceptions.

[29]        One possible exception would be the pedals, the other exception is the maximum speed of the scooter.

[30]        The definition of a motor assisted cycle in section 1 of the Motor Vehicle Act includes “a device to which pedals or hand cranks are attached that will allow for the cycle to be propelled by human power”.

[31]        I find the scooter was sold at retail to Mr. Wojtkiw with pedals attached. By loosening one of the pedal cranks he had rotated it 180° so that instead of the pedals been opposing, they were side by side.

[32]        Mr. Wojtkiw testified that with a wrench that he carried on the scooter, he could easily change the pedals so that the cranks were opposing and function in a practical way for the operator to pedal by human power.

[33]        Cpl Seutter also submitted the pedals were too far back for an operator to pedal. From the pictures of the scooter in evidence, I am satisfied that the scooter could be effectively pedalled if the operator sat towards the back of the elongated seat.

[34]        Although unconventional, I conclude the repositioning of the pedals did not remove the cycle from that requirement of the definition.

[35]        The issue of the maximum speed is more problematic for Mr. Wojtkiw.

[36]        Clearly, despite the specification provided by the retailer to Mr. Wojtkiw that the speed of the scooter was governed to 32 km/h, the scooter could and did exceed that speed by at least 16 km/h.

[37]        Cpl Seutter and Mr. Wojtkiw spent much time in cross examination nit-picking over the degree of the decline of the slope of the highway and the distance of the decline from where the officer obtained a laser reading of the speed of the scooter.

[38]        My finding is that although the slope could have caused the scooter to pick up speed, the scooter was far enough from the bottom of the slope when the laser reading was taken that the slope was not a factor in causing the scooter to exceed 32 km/h.

[39]        Section 1(2)(c) of the Motor Assisted Cycle Regulation provides that the “motor of a motor assisted cycle must not be capable of propelling the motor assisted cycle at a speed greater than 32 km/hr on level ground”.

[40]        For that reason, it is obvious to me that the motor of this scooter was capable of propelling the scooter at a speed greater than 32 km/hr. I also conclude that Mr. Wojtkiw knew, or had to have realized, that the scooter was travelling at a speed significantly faster than 32 km/hr.

[41]        But for what I conclude in paragraphs 52 to 59 below, the scooter therefore did not meet one of the legislated criteria to qualify as a motor assisted cycle.

[42]        If the scooter does not qualify, does that fact mean the scooter is no longer a motor assisted cycle. I will address this shortly.

[43]        However, if the scooter is no longer a motor assisted cycle, the evidence does raise the possibility that Mr. Wojtkiw has established a due diligence defence.

[44]        The decision in Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 established that a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence. That is to say, he did what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act. R. v. Pontes 1995 CanLII 61 (SCC), [1995] 3 SCR 44 at para 32.

[45]        In further explanation of that principle, Justice Cory in Pontes went on to say:

[46]        It is also clear that due diligence does not apply to a mistake of law, only to a mistake of fact.

[47]        Mr. Justice Wagner quite succinctly put the defences available to a defendant charged with a strict liability offence in La Souveraine, Compagnie d’assurance générale v. Autoritié des marchés financiers 2013 SCC 63:

[48]        That raises the question, has Mr. Wojtkiw proved on a balance of probabilities either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence?

[49]        It is clear from his testimony that Mr. Wojtkiw knew that to be a motor assisted cycle, the vehicle had to be governed to not exceed a speed of 32 km/hr. And I also conclude that he knew or had reasonably to have known that on this day, he was driving his scooter at a speed exceeding 32 km/hr by more than even a couple of km/hr.

[50]        For that reason, I find that Mr. Wojtkiw cannot rely on a defence of mistake of fact that his scooter could and did exceed a speed of 32 km/hr, one of the statutory conditions for a scooter to be a motor assisted cycle.

[51]        The Crown’s submission is that if the scooter is not governed so that the scooter is not capable of propelling the cycle at a speed greater than 32 km/hr on level ground, then it is not a motor assisted cycle.

[52]        I do not agree with that submission.

[53]        I accept that the scooter purchased by Mr. Wojtkiw did have such governed motor at the time of purchase. That is the specifications for this scooter issued to Mr. Wojtkiw when he purchased the scooter. Those specs were entered as an exhibit in this matter.

[54]        At some point before July 10, 2018, the governor was disabled or malfunctioned.

[55]        In my view on those facts, that does not remove the scooter from being a motor assisted cycle.

[56]        To use an analogy, another prescribed criteria, under section 5 of the Motor Assisted Cycle Regulation, requires that the braking system on a motor assisted cycle must be capable of bringing the cycle, while being operated at a speed of 30 km/hr, to a full stop within nine metres from the point at which the brakes were applied.

[57]        If the braking system was out of proper repair and only brought the cycle to a stop at 10 or 11 metres, that surely would not automatically remove that cycle from being a motor assisted cycle.

[58]        For that reason I find that Mr. Wojtkiw was operating a motor assisted cycle on July 10, 2018 and was not required to have a valid motor vehicle liability policy nor to hold a subsisting driver’s licence.

[59]        The third charge of passing on the left under section 158(2)(b) of the Act applies only to a vehicle, which by definition, excludes a motor assisted cycle.

[60]        If I am wrong in my interpretation above, and the scooter is no longer a motor assisted cycle, I conclude that Mr. Wojtkiw is not guilty of, to use the vernacular, driving without insurance.

[61]        There was evidence in another similar case I heard recently, in which I concluded in an oral judgment, not reported, that ICBC would not insure a scooter that was a motor assisted cycle that had the pedals removed.

[62]        In addition, there is evidence in R v. Rei 2012 BCSC 1028, a judgment of Justice N. Brown, a case in which the pedals had been removed from a motor assisted cycle, that ICBC would not insure such a vehicle. I will address this further below.

[63]        I had previously given a decision in R v. Ryan 2012 BCPC 67 that a driver of a vehicle that could not be insured could not be convicted of driving without insurance.

[64]        In Rei, the driver was charged with operating a vehicle without a driver’s licence and without insurance.

[65]        The reason was the pedals of the cycle had been removed.

[66]        He was convicted in this Court.

[67]        On appeal to the Supreme Court, Justice Brown dismissed the appeals (there were two identical tickets issued a month apart).

[68]        I will quote a portion of the Rei judgment as context for why I disagree with the result.

[69]        On its face Justice Brown states Mr. Rei was operating a motor assisted cycle, as defined. He does qualify that statement in paragraph 10, reproduced below.

[70]        He then reproduces pertinent portions of the legislation on motor assisted cycles and limited speed motorcycle. Following that, he says:

[71]        He then goes on to say:

[72]        Justice Brown then gives a two paragraph explanation of his reasoning:

[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 does not decide anything if the pedals are attached. He does not say so directly, but in paragraph 20 he infers that a motor assisted cycle without pedals is a limited speed motorcycle. The other alternative inference is that the scooter is nothing, neither a motor assisted cycle nor a motor vehicle. Because if it was motor vehicle it must be insurable if it met the requirements of section 219(1).

[74]        Based on the view taken by ICBC [see paragraph 70 above], if the cycle was unregisterable and uninsurable it strikes me that the Motor Vehicle Act should not be interpreted so as to make it an offence of operating without insurance a motor vehicle for which the operator could not have obtained insurance even if he or she wanted to.

[75]        This was my reasoning in Ryan and recently in R v. Layne (unreported oral judgment). In the latter, Mr. Layne had removed the pedals of his motor assisted cycle (scooter). Mr. Layne had attempted to obtain insurance from ICBC (because he thought it prudent as he drove on highways). ICBC refused to insure the scooter. This is consistent with the evidence of Mr. Carpinetti recited in Rei above.

[76]        The mischief the legislation addresses in my view is not the lack of insurance but driving a vehicle on a highway that should not be on a highway.

[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.

[80]        There are other and perhaps more appropriate offences in this situation. Section 219(1) of the Act might be one of them (a person must not drive or operate a motor vehicle or trailer on a highway … unless it is equipped in all respects in compliance with this Act and the regulations). And in saying so, I do not suggest that section precludes other charges.

[81]        I appreciate that Rei is a judgment of a higher court and I am bound by it to the extent it applies on the facts. I understand the ratio of Rei is based on the fact the scooter did not have pedals. That is not the case here. But I note that, as in almost all appeals involving Violation Tickets under the Offence Act, the Disputant either does not attend (see R. v. Rahmani 2017 BCSC 1471) and offer the Court any submissions or does attend but is unrepresented (see Rei supra). In those circumstances, the Court will likely not be given a fully balanced reasoned argument.

[82]        Although it does not appear that Justice Brown made the point set out in paragraph 12 in Rei a part of his decision [see paragraph 69 above – no pedals, no motor shut off], I comment on that statement as it is a submission that has been made to me by officers in other cases on this subject.

[83]        I note that section 3(2) of the Regulation lists three disjunctive means by which the motor of the cycle must turn off or disengage, only one of which involves a pedal. The other two are releasing the accelerator controller or applying the brake. As I understand it from the facts and exhibits, neither involves the pedals. So the lack of pedals alone should not remove the cycle from compliance with section 3(2). The cycle complies if it meets any one of those three means.

[84]        Although it is clear that strict interpretation is no longer applicable to criminal law, but only the now oft quoted principle that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. And included in that principle is the section of the BC Interpretation Act that that provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.

[85]        Applying that principle, there is in my view nothing to suggest that the object of the Motor Vehicle Act is to convict a person for failing to have insurance they cannot get when driving an unregisterable and uninsurable vehicle on a highway. The Act is not bereft of other provisions to attain an object to keep such vehicles off a highway.

[86]        In bringing this judgment to an end, I repeat what I said in Laine. I note paragraph 21 in Rei in which Mr. Justice Brown suggests the Regulations would benefit from a review. It is now seven years later and, like cell phones, much has changed with electrically propelled devices. I concur in the need for a review.

[87]        Perhaps that hope is on the horizon. Since the conclusion of this trial, the Government has introduced amendments to the Motor Vehicle Act “to allow the use of increasingly diverse modes of personal transportation”. The news release from the Minister of Transportation and Infrastructure says, “[p]eople who choose new types of transport, like e-scooters, electric unicycles or Segways, to get around will benefit from proposed amendments”.