Court File and Parties

Court File No.: County of Northumberland 12-0357 Date: 2013-10-09 Ontario Court of Justice

Between: Her Majesty the Queen — AND — David Shane Davies

Before: Justice of the Peace R.J. Le Blanc

Heard on: August 14, 2013

Reasons for Judgment released on: October 9, 2013

Counsel:

• Allison Lester, acting Crown prosecutor
• The defendant David Shane Davies on his own behalf

Endorsement

JUSTICE OF THE PEACE LE BLANC:

Charges

[1] David Shane Davies stands charged with the offences of owner drive motor vehicle without a valid contract of automobile insurance contrary to the Compulsory Automobile Insurance Act (CAIA) s. 2(1)(a) and drive while suspended contrary to s. 53 of the Highway Traffic Act (HTA).

[2] Mr. Davies does not dispute being the owner of a gasoline-motor-power-assisted bicycle, nor does he dispute being a suspended driver on the date, time and place in question.

[3] Mr. Davies, a self-represented individual, also takes no issue with the date, time, place or his identity. He admits he did not have a valid contract of automobile insurance for the gasoline-motor-power-assisted-bicycle.

The Crown's Evidence

[4] Cobourg Police Service Sgt. James Rutherford testified that about 8:50 p.m. on August 14, 2012 he was on general patrol, travelling westbound on King Street at Division Street in the town of Cobourg, Northumberland County, when he saw the accused driving a gasoline-motor-power-assisted bicycle. Sgt. Rutherford described the vehicle as a mountain bike with gas powered motor, gas tank, starter button, and clutch.

[5] Sgt. Rutherford said he followed the accused and stopped him on Spring Street which is a distance of about 500 metres.

[6] Sgt. Rutherford made a demand for documents – licence, insurance and registration – but did not receive any. The officer said he received verbal identification and was satisfied. Sgt. Rutherford pointed to the defendant in Court as being the individual he dealt with on the date, time and place in question, one David Shane Davies.

[7] Sgt. Rutherford said he spoke to the accused. The Court canvassed the necessity of a voir dire on behalf of the defendant. Mr. Davies said he spoke of his own free will to Sgt. Rutherford. He declined the Court's offer to conduct a voir dire on the voluntariness of any statement made, including the fact that he was the owner of the vehicle he was riding on the date, time and place in question.

[8] Sgt. Rutherford said he conducted an investigation and laid several charges before the Court, including drive suspended and owner operate motor vehicle without a valid contract of automobile insurance.

[9] The Crown chose not to proceed on the date of trial with charges including failure to have proper headlights contrary to s. 62(1) of the Highway Traffic Act; fail to wear a helmet while operating a motorcycle contrary to s. 104 of the Highway Traffic Act; drive motor vehicle without current validation by way of registration and number plates contrary to s. 7(1)(a) of the Highway Traffic Act; and drive motor vehicle no licence plates contrary to s. 7(1)(b)(i) of the Highway Traffic Act.

[10] Sgt. Rutherford said he witnessed the defendant driving the gasoline-motor-power-assisted bicycle without the use of the pedals, noting there was a loud sound – indicating use of a gasoline-powered-motor -- which lessened when he stopped the defendant and the motor was turned off.

[11] Sgt. Rutherford, under cross examination, said the defendant was allowed to continue on his way on the vehicle following the traffic stop, but only by using the pedals to power it as a bicycle.

[12] Exhibit One is certified documentation from the Registrar of Motor Vehicles for the Ministry of Transportation showing the licence of David Shane Davies was suspended as of the 16th day of April 2012 for default payment of fines. The notice, sent by mail on that day, was in effect on the date of the traffic stop on August 14, 2012.

[13] Cobourg Police Scenes of Crime (SOCO) Const. Frank Francella, said he was called to take photographs, which were filed as exhibit two, numbered "a" through "l", depicting the gasoline-motor-power-assisted bicycle.

[14] The photos, which were disclosed to Mr. Davies, show a mountain bike with gas tank across the main frame and a gasoline-powered-engine mounted between the seat frame and the diagonal frame located between the gear/pedal area and the handlebars. Exhibit two, photos "h" and "I" appear to show a rear reflector and finger-operated gear shift, brakes, a horn and an object Mr. Davies referred to as a speedometer.

[15] This was the case for the Crown.

The Defendant's Evidence

[16] Mr. Davies, with the permission of Court security, was allowed to sit at the defence table without handcuffs despite being in custody while serving a sentence. Mr. Davies was allowed to take the witness stand without a prisoner escort and he was afforded the same courtesies a non-custodial defendant would have received, save for what would be referred to as 'leg irons'.

[17] Mr. Davies, for his part, was respectful and played a full role in his one-and-one-half-hour trial.

[18] Mr. Davies testified he researched the gasoline-powered-motorized-bicycle on the province's e-laws web site five years earlier, and he filed two single page 'fact sheets' entitled 'new and emerging vehicles' as exhibits three and four respectively.

[19] The exhibits refer to e-bikes, mopeds and motor scooters, and they contain the following warning: "This document is intended for information purposes only. While the Ministry of Transportation does its best to ensure the information provided is current, the Ontario Highway Traffic Act (HTA), as the official version of the law, should be relied on to ensure accuracy."

[20] Mr. Davies said he purchased a Huffy 'Aggressor' mountain bike and referring to the standards as set out on the e-laws fact sheet, added a 49 cc gasoline-powered-engine to stay within Ministry of Transportation guidelines. As a modified mountain bike it does not have a manufacturer's certification label attached, he said.

[21] Mr. Davies testified that the gasoline powered motorized bicycle he built did not travel faster than 50 km/h, nor did it weigh more than 55 kg as specified in the guidelines. It further conforms by having independent front and rear wheel braking; is capable of being operated by pedal power at all times; and does not have a hand or foot operated clutch or gearbox driven by the motor to transfer power to the driven wheel.

[22] Mr. Davies said a finger operated gear change is used instead of a clutch.

[23] Mr. Davies said he's used the gasoline-powered-motor-assisted bicycle in Toronto and Peterborough without problem, and was once stopped and released by Northumberland OPP while riding it, without incurring charges. This led him to believe the vehicle was street legal.

[24] Under cross-examination Mr. Davies said he did not believe the gasoline-motor-power-assisted bicycle he built and operated for five years fell under the definition of a motor vehicle, and therefore he did not believe it required insurance.

[25] Mr. Davies said he was using the bicycle's pedals -- used to start the engine – at the time of Sgt. Rutherford's observations.

[26] Mr. Davies denied using the gasoline-powered-motor at the time of the traffic stop, explaining the loud noise Sgt. Rutherford heard as the engine 'choking' but failing to catch. He said he was having difficulty getting the engine to catch, and "I was still pedalling when I was stopped."

[27] Mr. David Davies Sr. took the witness stand briefly as a defence witness to testify that he watched his son build the gasoline powered motorized bicycle following Ministry of Transportation guidelines.

Exhibits Three and Four

[28] It is worthwhile going into further detail on Mr. Davies' exhibits.

[29] Exhibit three which is a copy of a 'fact sheet' on 'new and emerging vehicles' said to have been issued by the province, contains common names. There is no date attached to this document but Mr. Davies said he referred to it five years earlier when building this gasoline-powered-motorized bicycle.

[30] The first category on Exhibit 3, which refers to 'e-bikes and e-scooters' as 'power-assisted bicycles/bicycles' would not be considered in R. v. Davies given it references 'electric-powered' units. These devices are not considered a vehicle under the Highway Traffic Act but are considered a vehicle under the Criminal Code of Canada.

[31] The second category, which refers to 'mopeds' as 'motor-assisted bicycles' would seem to fit the vehicle Mr. Davies operates in as much as its key characteristics include being: "gas-powered; maximum engine size 50 CC; does not attain a speed greater than 50 km/h within two km from start; maximum weight 55 kg." with additional characteristics of "independent front and rear wheel braking; pedals must be operable at all times; has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel.

[32] Under 'mopeds' and 'motor-assisted bicycle' one can read that these are considered motor vehicles under the Highway Traffic Act and the Criminal Code of Canada.

[33] The third category consists of 'motor scooter' referred to as 'limited-speed motorcycle' which may be electric or gasoline powered with a maximum engine size of 50 cc and a maximum speed of 70 km/h, attaining a speed of 32 km/h within 1.6 km. 'Motor scooters' or 'limited-speed motorcycles' are also listed as motor vehicles under both the Highway Traffic Act and Criminal Code.

[34] Exhibit Four, filed by Mr. Davies, contains a list of definitions under the Highway Traffic Act, R.S.O. 1990, c. H.8, including 'motor assisted bicycle' which includes the characteristics of such a device. It also includes the definition of 'motor vehicle' which "includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, …"

Submissions

[35] The acting Crown prosecutor, in submissions, said the definition of 'motor vehicle' as contained in section 1(1) of the Ontario Highway Traffic Act includes motor assisted bicycles if they are not propelled by muscle power (using the pedals).

[36] The acting Crown prosecutor said Sgt. Rutherford's evidence should be deemed credible and reliable by the Court while Mr. Davies' evidence should be discounted as self-serving. She adds the Court should find this to be a gasoline-motor-power-assisted bicycle even if Mr. Davies was operating it as a bicycle at the time.

[37] The acting Crown prosecutor submits given the gasoline-powered-motorized-bicycle falls under the Highway Traffic Act definition of 'motor vehicle' it is open to the Court to find Mr. Davies guilty of the offences of drive while suspended and owner drive motor vehicle without a valid contract of motor vehicle insurance.

[38] The acting Crown prosecutor – speaking to the defence of due diligence allowed Mr. Davies under a strict liability offence should the Crown prove a prima facie case –said the defendant failed on a balance of probabilities to do what a reasonable person would have done in similar circumstances, which is to have read the remainder of the e-laws pages he filed as exhibits three and four.

[39] The defendant's exhibits three and four, she said, clearly state that a motor assisted bicycle is "a motor vehicle under the Highway Traffic Act' (exhibit three) and that the definition of motor vehicle under the Highway Traffic Act – which includes 'a motor-assisted bicycle unless otherwise indicated in this act, and any other vehicle propelled or driven otherwise than by muscular power ….." (Exhibit four).

[40] The acting Crown prosecutor added that though it may sound trite, ignorance is no defence to the law.

[41] Mr. Davies submissions include that he was operating under pedal power at the time of the traffic stop and that he undertook due diligence by "going out of my way to ensure I was legal. I kept to the law and if I broke the law I did not start out to do so."

Definitions

[42] Section 1 of the HTA sets out the following definitions:

a. "motor assisted bicycle" means a bicycle, that is fitted with pedals that are operable at all times to propel the bicycle, that weighs not more than fifty-five kilograms, that has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel, that has an attached motor driven by electricity or having a piston displacement of not more than fifty cubic centimetres, and that does not have sufficient power to enable the bicycle to attain a speed greater than 50 kilometres per hour on level ground within a distance of 2 kilometres from a standing start;

b. "motor vehicle" includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine;

c. "power-assisted bicycle" means a bicycle that, is a power-assisted bicycle as defined in subsection 2 (1) of the Motor Vehicle Safety Regulations made under the Motor Vehicle Safety Act (Canada), bears a label affixed by the manufacturer in compliance with the definition referred to in clause (a), has affixed to it pedals that are operable, and is capable of being propelled solely by muscular power;

d. "vehicle" includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car;

e. Section 7(1) provides, inter alia, that No person shall drive a motor vehicle on a highway unless, there exists a currently validated permit for the vehicle; there are displayed on the vehicle, in the prescribed manner,…

f. Section 2(1) of the CAIA provides: Subject to the regulations, no owner or lessee of a motor vehicle shall, operate the motor vehicle; or cause or permit the motor vehicle to be operated, on a highway unless the motor vehicle is insured under a contract of automobile insurance.

g. The Criminal Code of Canada defines a "motor vehicle" as follows: "motor vehicle" means a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

h. Motor-Assisted Bicycles as defined by the Ontario Ministry of Transportation require a restricted class M licence for limited-speed motorcycle (LSM) and moped drivers as of November 28, 2005. A motor-assisted bicycle is a bicycle that: is fitted with pedals that are operable at all times to propel the bicycle; weighs not more than 55 kilograms; has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel; has a piston displacement of not more than 50 cubic centimetres; and, does not attain a speed greater than 50 km/hr. on level ground within a distance of 2 km from a standing start.

To operate these vehicles on the roadway, drivers must hold the new restricted class M licence for limited-speed motorcycles/mopeds (Class M2 with L restriction or M with L restriction or a valid motorcycle licence (Class M1, M2 or M); approved motorcycle helmet is required; vehicle must be insured and registered and have a valid licence plate; no passengers allowed; they must meet federal safety standards for a limited speed motorcycle; motor-assisted bicycles are not allowed to travel on 400 series highways.

Applying Case Law

[43] The Court has researched similar circumstance case law, case law on strict liability offences, and case law on the tests to be applied to a defence of due diligence.

Similar Circumstance Case Law

[44] R. v. Ryan, 2012 BCPC 67, notes a gasoline-engine-motorized bicycle cannot be operated on a highway because it cannot be equipped in all respects to comply with the Motor Vehicle Act and Regulations [s. 219(1)], and therefore cannot be insured.

[45] R. v. Ryan (supra) asks the question of whether or not the operator of such a device that cannot be insured can be convicted of operating the motor vehicle on a highway without insurance.

[46] Judicial Justice H.W. Gordon wrote, "In my view, the driver cannot. I conclude that that provision was not intended by the Legislature to apply to that factual circumstance. To use an analogy, it is the same as charging a driver for crossing a double solid line, or driving in the wrong lane of travel, when the vehicle slides out of its lane of travel on ice or snow. There may be grounds for charging the driver for driving at a speed excessive for the conditions, but not for either of those two offences.

[47] "Does the same or similar principle apply to driving such a vehicle without a driver's licence? In my view, it does not," Judicial Justice Gordon wrote in R. v. Ryan (supra). "The purpose of requiring the operator of a vehicle to have a driver's licence is to ensure that every such operator has the required skill sets to operate that type of vehicle. Hence the different classes of licence required for different types of vehicles, and restrictions within a class. Because this motorized bicycle is by definition a motor vehicle, the operator is required to have a driver's licence. Mr. Ryan was therefore required by law to have a driver's licence when operating it on a highway, even though he was illegally doing so [section 219(1)]."

[48] "Although it was not argued, from the evidence in the case I find that Mr. Ryan has established due diligence," Judicial Justice Gordon wrote.

[49] "He asked those who reasonably might be expected to know, including police officers, if he was operating a motor assisted cycle. They advised him it was a motor assisted cycle. To be fair, others who also would be knowledgeable had advised him it was not. This is a grey area of law and even in the administration of the provisions and it is not surprising that he received conflicting advice. Both he and his mother had researched the matter fairly extensively. They mistakenly put too much reliance on what might be acceptable federally under its standards than what is required under provincial law.

[50] "I find Mr. Ryan made reasonable efforts to learn what this vehicle was or was not. He was mistaken and that mistake led him to believe he was a bicyclist and not a motorcyclist.

[51] "For this reason I also acquit Mr. Ryan of operating a vehicle on a highway without an appropriate driver's licence."

[52] The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that Courts should generally abide by precedent and not disturb settled matters.

[53] Ontario provincial Courts are not bound by the decisions of the appellate Courts of other provinces or by decisions of the Federal Court of Appeal. There are a number of factual differences between R. v. Ryan and R. v. Davies.

Absolute Versus Strict Liability

[54] The Court must also determine whether the offences of driving while suspended and owner drive motor vehicle without a valid contract of automobile insurance are characterized as an absolute or strict liability offences.

[55] R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 provides for three distinct categories of offence based on the mental element required for conviction:

[56] Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;

[57] Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he or she took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability;

[58] Offences of absolute liability where it is not open to the accused to exculpate him by showing that he was free of fault.

[59] Sault Ste. Marie (supra) determined public welfare offences tend to be strict liability offences.

[60] Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), states, "Nothing in the words of this provision (driving without a valid licence) indicates an intention … to exclude a due diligence defence. … A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations … The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence."

[61] It is open to this Court to find driving while suspended contrary to s. 53 of the Highway Traffic Act, and owner operate motor vehicle without a valid contract of automobile insurance to be strict liability offences as per R. v. MacDougall [1982] S.C.J. No. 89 (S.C.C.), and R. v. Miller, [1988] O.J. No. 253 (Ont. C.A.).

[62] R. v. Summerfield, 2012 ONCJ 183 cites R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 (Ont. C.J.), as the case that summarizes the legal principles to be applied to the allegations before the Court.

Tests Applied for Defence of Due Diligence

[63] The strict liability determination by the Court opens a defence of due diligence to the defendant on a balance of probabilities. There is ample case law on the tests to be applied in such a case.

[64] R. v. Summerfield (supra) states that as a strict liability offence the actus reus requires the Crown to prove the twin prongs that a defendant's driver's licence was suspended, and that the defendant drove while his licence was suspended. The Crown does not have to prove knowledge of the suspension, given s. 52(2) of the Highway Traffic Act. Such is the case before the Court in R. v. Davies.

[65] Similarly the Crown must prove Mr. Davies was owner of the motor vehicle in question, and that he was operating it without a valid contract of automobile insurance, contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act (CAIA).

[66] The burden of proof lies with the Crown, and the test is 'proof beyond a reasonable doubt.' Without reversing that onus it is available to Mr. Davies to cast doubt on the Crown's evidence or to provide evidence to the contrary.

Was Mr. Davies Pedalling or Using the Motor at the Time in Question?

[67] Mr. Davies has attempted to do so by saying he was pedalling his gasoline-motor-power-assisted bicycle on the date, time and place in question. The gasoline engine had yet to kick in when Sgt. Rutherford conducted the traffic stop, he says.

[68] The Court is required as per R. v. W. (D.), 63 CCC 3d 397 S.C.C. to conduct a three question analysis where credibility becomes an issue over contradictory evidence.

[69] The Supreme Court of Canada explaining the test for reasonable doubt in a credibility assessment, sets out the following formula:

[70] 'First, that if they believe the evidence of the accused, then they must acquit.

[71] Secondly if they do believe the testimony of the accused but are left in a reasonable doubt by it, then the jury must acquit.

[72] Thirdly even if the Jury are not left in doubt by the evidence of the accused, they must ask themselves whether on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt of the guilt of the accused'.

[73] The Court finds Sgt. Rutherford's evidence to be clear, concise and believable. The Court finds Mr. Davies evidence to be less so, given it is agreed Sgt. Rutherford followed him for nearly 500 metres during which time the noise of a gasoline-powered engine could be heard coming from the bike. It was clearly Mr. Davies intention to use this gasoline-powered-motor to propel this bicycle.

[74] It is open to the Court having conducted the three question R. v. W. (D.) analysis to find Mr. Davies was propelled by a gasoline-powered motor and not by pedal-power at the time and place in question.

[75] It is open to the Court to find the Crown has proven the actus reus beyond a reasonable doubt given the officer's evidence, Ministry of Transportation documents filed as exhibit one showing Mr. Davies' licence was suspended on April 16, 2012, and according to s. 52(2) of the Highway Traffic Act, said suspension is said to have been deemed served seven days later on April 23, 2012.

[76] Mr. Davies readily admits he knew he was a suspended driver on the date of the traffic stop.

[77] It is open to the Court to find the Crown has proven the actus reus of owner operate motor vehicle without a valid contract of automobile insurance given Mr. Davies' admission that he was the owner of the gasoline-powered-motorized bicycle. The decision is further bolstered by provincial requirements for insurance for a gasoline-powered-motor-assisted bicycle.

[78] The Court finds the Crown has established a prima facie case on each of the charges before it.

Defence of Due Diligence

[79] A Provincial Offences Court is required by case law to walk a fine line between ensuring a self-represented defendant's rights are protected at trial – for example there is case law requiring an explanation of how a trial works, the necessity to ensure Charter rights are protected, etc. – and taking an active role on the defendant's behalf. It is clear the Court cannot provide a defendant legal advice. Still, the Court, out of an abundance of fairness to a self-represented defendant, finds itself explaining at times legal concepts such as due diligence.

[80] R. v. Krupa, [2002] O.J. No. 1650 suggests that a Court must consider the defence of due diligence where there is a reasonable inference of such by way of evidence.

[81] While Mr. Davies was unaware of the term due diligence or the legal precedents it is clear to the Court he reasonably inferred such a defence through is statement that he was "going out of my way to ensure I was legal. I kept to the law and if I broke the law I did not start out to do so." It is Mr. Davies' inference of due diligence and officially induced error.

[82] Mr. Davies evidence was that he converted a mountain bike so that it might be propelled either by pedal-power or by way of gasoline-motor. Mr. Davies testified the gasoline-motor-power-assisted bicycle met government specifications when he checked the ministry website five years earlier, including engine-size, weight and speed, and there was photographic evidence of some safety features including a horn and reflectors.

[83] R. v. Sirianni, 2010 ONCJ 725 states that once the Court has determined the Crown has proven the essential elements to the test of 'beyond a reasonable doubt' it must then consider whether the defendant has proven a 'due diligence' defence on a balance of probabilities.

[84] Existing case law dictates that Mr. Davies – given the Crown has proven the actus reus beyond a reasonable doubt -- is presumed to have been negligent in committing the prohibited act and so the burden of proof shifts to him on a balance of probabilities to show he exercised reasonable care. If he is able to do so his presumed negligence is rebutted and the Court must acquit.

[85] R. v. Clothier, 2011 ONCA 27 (Ont. C.A.) notes the objective of regulatory legislation is to protect the public or broad segments of the public (e.g. motorists) from potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of the public and social interest. Regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

[86] Once the Crown has met its burden of proving all of the essential elements of the subject strict liability offence beyond a reasonable doubt the fault element of negligence is automatically imported into the offence and the defendant will be convicted unless he is able to establish, on a balance of probabilities, that he "took all reasonable care".

[87] Mr. Davies testified that he knew he was a suspended driver and that he did not have insurance because he believed his vehicle was not lawfully considered a motor vehicle, but instead was a motor assisted bicycle.

[88] As per Summerfield (supra), Mr. Davies' evidence does not necessarily discharge his burden on a balance of probabilities unless he also establishes he did not otherwise know of legislation pertaining to motor vehicles, and, that his lack of knowledge was not due to his negligence.

[89] Mr. Davies testified he committed the prohibited act as a result of an honest and reasonable mistake of fact and as a result of officially-induced error, by way of information posted on the subject on a government website.

[90] R. v. Sault Ste. Marie (supra) states Mr. Davies must provide evidence that he took all reasonable steps in the circumstances, or was operating under a reasonable mistake of fact, which if true, would render the act lawful.

[91] Mr. Davies must satisfy the Court that he took all reasonable steps -- in the circumstances -- to avoid the prohibited act, or that having committed the prohibited act, that he relied upon a reasonable mistake of fact -- which if it had been true --would have rendered him not guilty of committing the offence.

[92] Sault Ste. Marie (supra) defines the defence of taking all reasonable care as involving consideration of "what a reasonable man would have done in the circumstances," and it is "available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event".

[93] R. v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.) more narrowly defines the defence as relating "to the commission of the prohibited act, not some broader notion of acting reasonably".

[94] R. v. Stelco Inc., [2006] O.J. No. 3332 (Ont. S.C.J.), speaks of a due diligence defence importing "a standard of objective reasonableness; an honest subjective belief is not enough".

[95] R. v. Nitrochem Inc., [1993] O.J. No. 3336 (Ont. Prov. Ct.), suggests it is open to a defendant to "establish that he reasonably believed in a mistaken set of facts which if true would have rendered the act or omission harmless. The second branch of the argument is that the accused did everything reasonably within his power to avoid the event. In practical terms however, the two aspects of the defence ultimately converge since to establish the reasonableness of the mistaken belief an inquiry is necessary to determine whether the accused did everything reasonably within his power to ascertain the true state of affairs.

[96] R. v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.), determined that "reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more, would, move a strict liability offence dangerously close to one of absolute liability."

[97] In Lévis (City) v. Tétreault (supra), the Court said trial judiciary should not confuse passivity with diligence. In this case the defendant testified he expected to receive a licence renewal notice and confused the licence expiry date with the due date necessary to keep the licence valid. The defendant took no further nor did he attempt to obtain information. Lévis (City) v. Tétreault (supra) states the concept of diligence is based on a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence.

[98] R. v. Summerfield (supra) speaks to the concept of permitting a defendant an opportunity of avoiding quasi-criminal liability by proving that he took all reasonable care, on a balance of probabilities, committing the offence on an honest and reasonable mistake of fact, or taking all reasonable steps to avoid it. The defendant, having proved so, should be acquitted.

[99] R. v. Ariganello, 2013 ONCJ 13 says that an analysis as per R. v. W. (D.) 1991 93 (SCC), [1997] S.C.R. 742, 63 C.C.C. (3d) 397 does not apply to regulatory offences where the defence of due diligence is to be assessed by a trial Court. The party with the onus of proof on a balance of probabilities has the obligation to prove that the existence or non-existence of a fact of issue is more likely than not.

[100] R. v. Defaria 2008 ONCJ 687, [2008] O.J. No. 5427 (paragraph 16), says, "The direction in W.D. speaks to the proper assessment of a defendant's evidence in the context of a criminal case where the Crown bears the burden of proof beyond a reasonable doubt. As mentioned, in this case, the matter in issue was due diligence, a point on which the appellant carried the burden on the balance of probabilities. In my view, it would be illogical and inappropriate to give the defendant the benefit of reasonable doubt on credibility when he bears the burden of proof on a balance of probabilities. I am firmly of the view that W.D. has no application to regulatory offences where the defence of due diligence is to be assessed by the trial Court."

The Court's Decision

[101] The Court must consider whether the defendant has established a reasonable but mistaken belief based on officially-induced error that he was driving a vehicle that fell outside the legal definition of a motor vehicle, thereby exercising reasonable care in the course of committing the prohibited act.

[102] Mr. Davies said it was his belief that the gasoline-motor-power-assisted bicycle he built fell outside the standards of a motor vehicle, and therefore did not require insurance, and he did not require to be licensed. Given Mr. Davies' driver's licence suspension this interpretation would have been to his benefit. There was no evidence, even to the lesser test of 'on a balance of probabilities' to suggest that Mr. Davies ever checked the legality of his gasoline-motor-power-assisted bicycle over the last five years other than to suggest that he passed police officers from other services who did not charge him.

[103] As per Summerfield (supra), the Court determines Mr. Davies' actions in driving a motor vehicle on the offence date without first making a more thorough inquiry as to the legality of his gasoline-powered-motorized-bicycle fails to rise to the standard of due diligence enunciated in R. v. Courtaulds Fibres Canada (supra), being "a high standard of awareness and decisive, prompt and continuing action" and as per Lévis (City) v. Tétreault (supra), that he did not fulfill his "civic duty to take action to find out what his obligations are," employing instead "passive ignorance (which) is not a valid defence."

[104] The Court having applied case law finds Mr. Davies' due diligence falls far short of the burden of proof on a balance of probabilities. Mr. Davies was wilfully blind as to whether he was operating a vehicle that fell outside of the legal definition of motor vehicle as proven by Exhibits Three and Four, which he tendered. Had Mr. Davies read the entire document rather than the portions he wanted to believe he would have known that this gasoline-powered-motorized-bicycle fell within the definition of motor vehicle as per the Highway Traffic Act, and therefore did not absolve him of the alleged offences.

[105] Mr. Davies has not provided evidence to the Court 'on a balance of probabilities' that would establish that his lack of knowledge was not due to his own negligence, or that he committed the prohibited act as a result of officially-induced error.

[106] Common-sense would dictate that an individual who wants to operate within the law would investigate beyond printing off a document from a government web site, and even then reading only half-way down the page.

[107] Common-sense would dictate that even if a gasoline-motor-power-assisted bicycle was legal five years earlier an owner would continue to stay abreast of current changes in government legislation. As per Levis (City) v. Tetreault (supra) Mr. Davies did not fulfill his citizen's civic duty to take actions to find out what his obligations were beyond passive ignorance, which is no defence to the law.

[108] The Court finds that Mr. Davies did not do what a reasonable man would have done in the circumstances as required by R. v. Sault Ste. Marie (supra) despite his argument that he reasonably believed in a mistaken set of facts which, if true, would have render the omission of driving while suspended innocent. As per R. v. Stelco Inc., supra the Court applies the standard of objective reasonableness and dismisses Mr. Davies assertion in an honest subjective belief being enough to avoid blame.

[109] The Court, having considered the evidence, submissions and case law, finds Mr. Davies guilty of both driving while suspended and being the owner of a motor vehicle, did operate said motor vehicle without a valid contract of automobile insurance.

[110] The Crown has proven the actus reus of both offences. This is one of those rare instances where the onus reverses -- once the actus reus is proven beyond a reasonable doubt -- to defendant. Mr. Davies fails to make out the defence of due diligence on a balance of probabilities.

Released: October 9, 2013

Justice of the Peace R. J. Le Blanc