SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3900/12
DATE: 2013-02-01

RE: R. v. Ricky Pizzacalla

BEFORE: Mr Justice Ramsay

COUNSEL: Ms S. McCartan for the Crown; the appellant in person

HEARD: 2013-02-01 at Welland

ENDORSEMENT

[1] This is an appeal under s.813 of the Criminal Code from a conviction made by Mr Justice Nadel. The appellant has three grounds:

a. The judge should have recused himself because of a reasonable apprehension of bias;

b. The judge erred in convicting him of driving a motor vehicle while under disqualification because the vehicle he was driving was not a motor vehicle; and

c. The prohibition was deficient in that s.260 (1) (c) of the Code was not complied with.

Apprehension of bias

[2] The judge had presided over a case involving the appellant in a provincial offences appeal. The judge reminded the appellant of the previous case at the outset of trial. The appellant said that he had no objection to make on that account. In these circumstances he is not entitled to complain at this point.

Definition of motor vehicle

[3] A police officer testified that he saw the appellant start up a motor-assisted bicycle and drive it from the parking lot of the beer store in Thorold onto Ormond Street and then onto Lyndon Street, where the officer stopped him. The vehicle resembled a moped or scooter but it was propelled by battery power, as opposed to a gasoline engine. The right pedal was missing and the left pedal was not functional. The chain that would connect the pedals to the back wheel was not attached to the sprockets.

[4] The appellant called no evidence and argued that the vehicle in question was not a motor vehicle.

[5] The Criminal Code (s.2) defines a motor vehicle as “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment”. I agree with the trial judge that the appellant’s vehicle met this definition. The definition of motor vehicle under the Highway Traffic Act would only have been relevant if the disqualification had arisen from the provincial legislation or an order made under it. In other words, whether the appellant needed a licence to drive the vehicle or not, he was prohibited from driving it.

Proof of disqualification

[6] The appellant argued that the prohibition was deficient in that it was not proven that s. 260(1) (c) was complied with. He cites R. v. Molina, 2008 ONCA 212.

[7] The Crown proved by affidavit that the appellant had been served with notice that it would enter into evidence a certified copy of the prohibition order. The certified copy was duly filed. It showed that the appellant had been disqualified by a prohibition order made under s.259 of the Criminal Code.

[8] Section 260(1) (c) of the Code provides:

(1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause …

(c) the offender to be informed of subsection 259(4).

[9] Section 259(4) provides:

(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

[10] Unlike the order in R. v. Molina, the prohibition order that the appellant signed contained a notice that set out the words of s.259 (4) of the Code. A valid prohibition was proven.

[11] The appeal is dismissed.

J.A. Ramsay J.

Date: 2013-02-01