CITATION: R. v. Van Berlo, 2010 ONCA 242
DATE: 20100401
DOCKET: C51023
COURT OF APPEAL FOR ONTARIO
Goudge, Juriansz and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Petrus Van Berlo
Appellant
M.D. McArthur, for the appellant
John Petrosoniak, for the respondent
Heard: February 10, 2010
On appeal from the decision of the summary conviction appeal court dated August 21, 2008, by Justice W.B. Stead of the Ontario Court of Justice, dismissing the appeal from the convictions and allowing the appeal from the acquittals entered on March 20, 2008, by Justice of the Peace K.J. Boon.
Goudge J.A.:
INTRODUCTION
[1] On August 17, 2006, officers from the Ontario Ministry of Transportation stopped a vehicle owned by Petrus Van Berlo as it was travelling along Blue Line Road in Norfolk County in southern Ontario. As a result, Mr. Van Berlo was charged and convicted at trial by a Justice of the Peace of a number of charges under the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"). He was also acquitted of two charges under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. On appeal to the Ontario Court of Justice, the convictions were upheld and the acquittals were reversed. With leave, Mr. Van Berlo appeals all his convictions to this court.
[2] The appellant was convicted of offences that require the vehicle in question to be a "motor vehicle", such as permitting the operation of motor vehicle on a highway without a permit. The definition of "motor vehicle" in the HTA excludes a "self-propelled implement of husbandry". Thus, the appeal turns on whether Mr. Van Berlo's vehicle comes within this exception, as a self-propelled implement of husbandry. If so, the parties agree that the appeal must succeed and the convictions must be set aside. If not, the appeal fails.
[3] The term "self-propelled implement of husbandry" is defined in s. 1.1 of the HTA.:
"Self-propelled implement of husbandry" means a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming.
[4] This vehicle was clearly self-propelled. The only question is whether it was "converted … for a specific use in farming". For the reasons that follow, I conclude that the appellant has not demonstrated that his vehicle meets the definition. I would therefore dismiss the appeal.
THE FACTS
[5] When the vehicle in question was stopped on August 17, 2006, it was towing a trailer loaded with irrigation pipes. It was being driven by one of the appellant's employees from a field on one of the appellant's farms to another of his farms. Two other employees were also on board. All three were engaged in the picking up, transporting and laying of irrigation pipe used in the appellant's farming operation. The farms produce tobacco, sweet potatoes, ginseng, corn, beans and other crops, all of which require irrigation.
[6] The appellant purchased the vehicle on August 11, 2002 for $2000. It was a 1976 Chevrolet pick-up truck. His intention was to modify it for use in his irrigation operations. He then spent $16,000 on the vehicle so it could tow farm equipment from farm to farm and from field to field, and so it could be used in the fields for irrigation purposes. He had the gasoline engine replaced with a diesel engine for more power. The gearing was changed and the two-wheel drive was converted to four-wheel drive. Large tread snow tires were installed to facilitate driving through fields of mud and sand. Finally a hitch, ten times heavier than a regular trailer hitch, was installed at the rear of the vehicle to allow for the pulling of various pieces of farm equipment.
THE JUDGMENTS BELOW
[7] On the basis of these facts, the Justice of the Peace found that the vehicle still looked like a pick-up truck but had been altered and modified to increase its versatility for farming tasks. He concluded that it remained a Chevrolet pick-up truck. It was a motor vehicle being used on a farm with alterations to make it more adaptable and useful on the farm. He found it was not a self-propelled implement of husbandry, and therefore convicted the appellant.
[8] On appeal, the Ontario Court of Justice found that the modifications did not change the character of the vehicle and that it was still capable of being used for the purpose for which it was originally designed. The court concluded at page 3 of its reasons:
The modifications made to it may very well have made it easier for the appellant to use in his fields but it, in my opinion, never lost its true character of being a pick-up truck. It is obvious that the vehicle was not manufactured or designed for a specific farm purpose nor could it be said that the modifications amounted to a redesign, conversion or reconstruction for a specific use in farming. It is a pick-up truck which is now better able to be used in farm fields for farm tasks but it is still fully capable of being operated on a highway, albeit with some limitations.
[9] In this court, the appellant argues that the provincial court judge erred in law by reading into the definition of "self-propelled implement of husbandry" the requirement that the vehicle be incapable of being used for its original purpose. He says that properly read, the vehicle meets the definition because it was only being used for irrigation operations in relation to farming, and that this was the appellant's specific purpose for converting it.
[10] On the other hand, the Crown argues that the provincial court judge was correct because the vehicle does not meet the definition if, as here, it is capable of behaving like a motor vehicle on the highway.
ANALYSIS
[11] The HTA excludes a "self-propelled implement of husbandry" from the definition of "motor vehicle". If the appellant's vehicle is a self-propelled implement of husbandry it escapes the requirements placed on a motor vehicle by the HTA. Thus, the central issue in this appeal is how the statutory definition of "self-propelled instrument of husbandry" unpacks in the context of this case. To repeat, that definition is as follows:
"Self-propelled implement of husbandry" means a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming.
[12] The proper approach to statutory interpretation was set out in the well-known words adopted by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21:
Today there is only one principle or approach, namely, 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.
[13] The interpretive task required in this case must therefore be informed by the broad objective of the HTA. Murray Segal has described its primary objective this way:
The Act has many purposes. It is first and foremost a collection of duties and obligations imposed on drivers in relation to the operation of vehicles, especially motor vehicles, to ensure the safety of motorists and others. See Harris v. Yellow Cab Ltd., 1926 CanLII 387 (ON CA), [1926] 3 D.L.R. 254 (Ont. C.A.).[^1]
[14] It is important that the provision to be interpreted excludes a vehicle from the requirements that the HTA imposes on motor vehicles in order to achieve its objective. This suggests that a narrower interpretive approach to the exception is necessary to avoid undermining the broad purpose of the legislation: see Sullivan and Driedger on the Construction of Statutes, 4th ed., at pp. 396-397. Moreover, s. 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, puts the onus on the appellant as defendant to bring this vehicle within the exception.
[15] Turning to the statutory definition of a "self-propelled implement of husbandry", there is no dispute that the appellant's vehicle is self-propelled. The appellant says that it comes within the exception because he "converted" it "for a specific use in farming" namely, the irrigation function needed for his farming operations.
[16] The New Shorter Oxford Dictionary defines "convert" as "to change into something different; to change in character or function; to transform." This definition suggests two things when applied to the statutory language in this case. First, the change must be significant enough to transform the vehicle into something different.
[17] Second, since the change must be enough to change the essential character of the vehicle, that suggests that the change must have an objective quality and that the subjective intention of the end user is not enough. The need for change that is objectively apparent for a vehicle to be "converted for a specific use" is also consistent with the other ways that the statutory definition provides for a vehicle to come within this exception. For example, a vehicle that is "manufactured" or "designed" for a specific use in farming has an objectively discernable character or function that does not depend at all on the particular use intended by the end user. Thus, I do not agree with the appellant that the use intended by the appellant is what matters.
[18] However, I also do not agree with the Crown that the exception requires that the vehicle be capable only of the specific use in farming for which it was manufactured or converted. Section 7(2) of the HTA requires that a self-propelled implement of husbandry requires a permit when operated on a highway other than in relation to a specific use for which it was manufactured or converted. Such a provision would be unnecessary if the exception required that the vehicle be incapable of any use (including its former use) other than the specific use that qualifies it for the exception.
[19] In my view, to be "converted for a specific use in farming" a vehicle must be changed significantly enough that, viewed objectively, its essential character or function has been transformed for that specific use, although it may retain some limited capacity for other functions. The transformation cannot just be for general use in farming, it must be for a specific use.
[20] When this interpretation is applied to the facts of this case, I conclude that the appeal must fail. As the Ontario Court of Justice found, the changes made by the appellant really do not change the character of the vehicle. The appellant installed a more powerful engine, changed the gearing, converted the vehicle from two to four-wheel drive, and installed large tread snow tires and a stronger rear hitch. Whether taken separately or together, these modifications do not change the vehicle from a truck into something different. Although these changes make the vehicle more powerful and therefore better able to perform some functions, such as pulling loads, these functions remain essentially the same. Nor do the changes point to the specific use of irrigation. At best, they are for general use in farming. Viewed objectively rather than through the lens of the subjective intention of the appellant, the changes are neither significant enough to change the essential character or function of the vehicle, nor can they be described as for the specific use of irrigation in the appellant's farming operation. In other words, the appellant cannot bring the vehicle within the defined exception.
[21] As a result, the appeal must be dismissed.
RELEASED: April 1, 2010 ("S.T.G.")
"S.T. Goudge J.A."
"I agree R.G. Juriansz J.A."
"I agree David Watt J.A."
[^1]: M. Segal, Manual of Motor Vehicle Law, 3rd ed., looseleaf (Toronto: Carswell, 2010) at 4.14-21.