COURT FILE NO.: CR 13-12

DATE: 20140415

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

AND:

Cameron Ross Clifford,

BEFORE: E.J. Koke

COUNSEL: Counsel, for the Crown, Wesley Beatty

Counsel, for the Defendant, Larry Douglas

HEARD: April 14, 2014

ENDORSEMENT

[1] On September 23, 2010 Mr. Justice L.J. Klein of the Ontario Court of Justice made an order prohibiting the accused, Mr. Cameron Ross Clifford from operating a motor vehicle for a period of five years. The order was made following Mr. Clifford’s conviction under section 259 (4) of the Criminal Code, R.S.C. 1985, Chap. C-46 (the “Code” or “Criminal Code”) for operating a motor vehicle while disqualified from doing so.

[2] Following Justice Klein’s order, Mr. Clifford purchased a power assisted bicycle. A power assisted bicycle is an electric battery powered bicycle which is commonly referred to as an “e-bike”, and he used this bike to transport himself.

[3] On July 19, 2012 Mr. Clifford was riding his e-bike in the Town of Parry Sound and was stopped and charged with another offence under s. 259(4) of the Code, namely that he was operating a motor vehicle while disqualified from doing so.

[4] Mr. Clifford has pleaded not guilty to this charge.

Issues

[5] There are three issues before the court:

a) Is Mr. Clifford’s e-bike a motor vehicle as defined in the Criminal Code?

b) In the event his e-bike falls within the definition of “motor vehicle”, did Mr. Clifford’s belief that he was permitted to ride this bike arise from officially induced error?

c) Was the information Mr. Clifford received as a result of his research and inquiries of such a nature that he lacked the requisite mens rea to commit the offence?

Is Mr. Clifford’s e-bike a motor vehicle as defined in the Criminal Code?

[6] The offence of Driving while disqualified as set out in section 259(4) of the Code requires that the offender …“operates a motor vehicle…while disqualified from doing so”.

[7] The definition section of the Criminal Code 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;

[8] The evidence before the court is that although an e-bike is designed to be powered by electric battery power, it also has pedals and can be powered by pedaling or by a combination of pedaling and electric power.

[9] The arresting officer, Constable Samuel Kewaquado testified that he followed Mr. Clifford in his police cruiser for a distance of approximately one kilometre before pulling him over. During this time Mr. Clifford first rode his bike down a hill and then up a hill. Constable Kewaquado testified that he did not see Mr. Clifford pedalling his e-bike during this time, and he did not appear to have his feet on the e-bike pedals. Constable Kewaquado concluded that Mr. Clifford was relying exclusively on electric battery power to power his e-bike forward. Constable Kewaquado estimated Mr. Clifford’s speed at approximately 30 kilometres per hour.

[10] Mr. Clifford testified that during the time he was followed by Constable Kewaquado he pedalled the e-bike for some of the time, but he admitted that he relied on battery power as well for some of the time. He agreed that under power he could operate his e-bike at a speed of up to 30 kilometres per hour.

[11] The evidence before the court is that the battery on an e-bike can be charged both by the act of pedaling and by an outside charging source. The power from the charged battery is then transmitted to an electrical motor which propels the bike forward.

[12] Mr. Clifford testified that he only charged the battery on his bike through the act of pedaling, and he did not use an outside source such as a battery charger. He submits that since the original source of the battery power which propelled his bike was muscular, the court should find that his e-bike was not a vehicle which was propelled by means “other than muscular power”, and therefore does not fall within the definition of “motor vehicle” under the Code.

[13] In my view, Mr. Clifford’s argument fails. Mr. Clifford admits that for at least some of the time while he was being followed by Constable Kewaquado he relied on battery or electrical power. Regardless of the source of the power which charged the battery on Mr. Clifford’s e-bike, battery power remains fundamentally different than muscular power. Battery power transmits electrical charges to a motor, which in turn propels an e-bike forward. The act of pedaling also propels an e-bike forward but this is a form of direct muscular propulsion.

[14] In summary, I find that during those times that Mr. Clifford operated his e-bike with the assistance of battery power the e-bike was operated by means “other than muscular power”. It is only in those circumstances where a vehicle is propelled exclusively by muscular power, as is the case with a conventional bicycle, that a vehicle is excluded from the definition of “motor vehicle” under the Code.

Did Mr. Clifford’s belief that he was permitted to ride this bike arise from officially induced error?

[15] The evidence before the court is that Mr. Clifford had three encounters with police officers while riding his e-bike prior to being stopped and charged by Constable Kewaquado. These encounters occurred while the aforementioned order of Justice Klein was in effect. On these occasions Mr. Clifford was not charged with the offence of Driving while disqualified. He submits that the decision on the part of the officers not to charge him with this offence on these three occasions induced in him a belief that it was permissible for him to ride his e-bike while he was under a prohibition not to drive a motor vehicle.

[16] Mr. Clifford testified that the first encounter occurred in approximately April, 2012. While riding his e-bike he came across a RIDE checkpoint. He stopped his bicycle and a police officer asked him if he had anything of an alcoholic nature to drink. He replied to the officer that he had not had anything to drink. He was permitted to continue.

[17] In my view, there is nothing in the conduct of the officer on this occasion from which Mr. Clifford could reasonably have concluded that he had permission to ride his e-bike while disqualified. I note that he did not testify that he was asked to produce his driver’s license or insurance. The purpose of the RIDE check was to determine if drivers of motor vehicles had been drinking, and the officer was apparently satisfied that Mr. Clifford had not been drinking.

[18] The second encounter occurred approximately a month later. On this occasion Mr. Clifford was operating his e-bike without a bicycle helmet, contrary to the Highway Traffic Act, R.S.O.1990, Chapter H.8. According to Mr. Clifford, a police officer questioned him about the fact that he was not wearing a helmet and then asked him to produce his driver’s license and insurance. Mr. Clifford explained to the officer that he did not have a driver’s license because it had been suspended. The officer then punched some information into his computer and after reviewing some information on a website he directed Mr. Clifford to go home and get his helmet. The police officer then watched him ride away.

[19] Again, I do not see anything in this encounter which could reasonably lead Mr. Clifford to believe that he was permitted to ride his e-bike while under a driving prohibition. What was of concern to the police officer at the time of this encounter was the fact that Mr. Clifford was not wearing a helmet. There is no evidence before the court that the information the police officer obtained in his computer search was related to the issue of whether Mr. Clifford was permitted to operate an e-bike while he was subject to a driving prohibition, or that the officer had directed his mind to this issue. In the end, the officer exercised his discretion and did not fine Mr. Clifford but simply directed him to return home and retrieve his helmet.

[20] The third encounter occurred on June 11, 2012 when Mr. Clifford was stopped while riding his e-bike by Sergeant Van Erp. Sergeant Van Erp testified that she decided to pull Mr. Clifford over because she observed that he was not wearing a bicycle helmet. When she asked him for identification he provided her with his health card, which resulted in a discussion about why he did not have a valid driver’s license.

[21] Ms. Van Erp testified that upon learning that Mr. Clifford was under a driving prohibition she cautioned him against riding his e-bike, informing him that some of her fellow officers would have charged him with Driving while disqualified if they had stopped him. While she was dealing with Mr. Clifford, Constable Kewaquado happened to drive by and stop and she testified that she may have pointed out Constable Kewaquado as an officer who would have charged him in the circumstances.

[22] A discussion then took place involving both Constable Kewaquado and Sergeant Van Erp about whether or not Mr. Clifford was permitted to drive in the circumstances. Sergeant Van Erp testified that at that time Constable Kewaquado may have said that if he had stopped Mr. Clifford he would have charged him. Sergeant Van Erp pulled up an Ontario Ministry of Transportation website on her computer which contained information about e-bikes and she shared with Mr. Clifford the information on this website.

[23] Sergeant Van Erp testified that although she gave Mr. Clifford a summons for failure to wear a helmet, she decided to exercise her discretion and not charge Mr. Clifford with the offence of Driving while disqualified. In exercising her discretion not to charge Mr. Clifford she took into consideration the following:

a) Mr. Clifford had obtained work as a carpenter, and at the time she stopped him he was on his way to do some work at a nearby location.

b) Mr. Clifford was driving well off the travelled portion of the roadway. The shoulder of the roadway at that location was wide and paved, and often used by cyclists and runners. Mr. Clifford was not interfering with the flow of traffic.

c) There remained some uncertainty in her mind as to whether Mr. Clifford was permitted to ride his e-bike if he relied exclusively on pedal power, as opposed to relying on battery power as well.

[24] Sergeant Van Erp testified that she did not want Mr. Clifford to ride his e-bike without a helmet so she drove him home to retrieve his helmet, after which she drove him back to his e-bike. She then left the scene, assuming that Mr. Clifford would either walk his e-bike to the job site or perhaps pedal it. She said she would have been surprised if she had found out that he had driven to his worksite under power.

[25] Before she left Mr. Clifford at the side of the road Sergeant Van Erp informed him that she would undertake some further investigation into whether he was permitted to ride his e-bike while he was subject to the driving prohibition, and she advised him that he should do likewise. She also left open the possibility that she might return and pay him a visit at a later date and charge him if she determined that by riding his e-bike he was breaching his driving prohibition.

[26] Notwithstanding the fact that Sergeant Van Erp chose not to charge Mr. Clifford, she was adamant that she did not say anything to him which may have left him with the impression that he could legally operate his e-bike while the driving prohibition was in effect.

[27] In response to Sergeant Van Erp’s advice that he investigate whether it was permissible for him to ride his e-bike, Mr. Clifford testified that he did not have a computer but he went to the library and tried to undertake some research using the library facilities. However, he is not very computer literate and in his words his attempts to research the issue resulted in “mass confusion” and with his “head aching”.

[28] Sergeant Van Erp did not return at a later date and charge Mr. Clifford. Mr. Clifford testified that he did not ride his e-bike for approximately two weeks after his encounter with Sergeant Van Erp, but thereafter he started to ride his bike again. On July 19, 2012, five weeks after his encounter with Sergeant Van Erp, Mr. Clifford was stopped by Constable Kewaquado and charged with this offence.

[29] In my view, there is nothing in his encounter with Sergeant Van Erp which could reasonably have induced Mr. Clifford to believe that by riding his e-bike he was not breaking the law. Sergeant Van Erp was candid with the court in admitting that at the time she stopped Mr. Clifford, there remained some uncertainty in her mind as to whether it was permissible for him to ride his e-bike, and that this was a factor in her decision not to charge him with a Criminal Code offence. She also made it clear to Mr. Clifford that many of her fellow officers would have charged him, and this evidence was supported by Constable Kewaquado who was present at the scene and who indicated that he believed that Mr. Clifford was breaking the law.

[30] In summary, I accept that Mr. Clifford’s encounter with Sergeant Van Erp may have left him with a belief that there was some uncertainty among police officers as to whether he could ride his e-bike. This is much different than saying that his encounter induced in him a belief that he could ride his e-bike with impunity while the motor vehicle driving prohibition was in effect.

Was the information Mr. Clifford received as a result of his research and inquiries of such a nature that he lacked the requisite mens rea to commit the offence?

[31] Mr. Clifford submits that he did not intentionally break the law. He states that in deciding that he was legally permitted to ride his bike, he relied on the fact that there did not appear to be a consensus of opinion on the issue on the part of police officers with whom he had encounters. He testified that he relied on the sales person who sold him the e-bike, who had advised him that he could ride the e-bike notwithstanding the fact that he was subject to a driving prohibition. Furthermore, his own research which he conducted at the library left him confused and with a headache. He argues that in the face of such uncertainty he could not have formed the requisite mens rea to commit the offence.

[32] In my view, this argument fails for the following reasons.

[33] Firstly, with respect to his encounters with the police officers, on his first encounter with Constable Kewaquado after he was pulled over by Sergeant Van Erp, Constable Kewaquado made it clear that that he believed that Mr. Clifford was committing an offence. Although there was some doubt in the mind of Sergeant Van Erp as to whether the driving prohibition included the riding of e-bikes, she did not suggest that it was permissible for him to ride his bike but directed him to investigate the issue further.

[34] Secondly, with respect to Mr. Clifford’s argument that he relied on the sales person who sold him the e-bike, clearly it was unreasonable for him to rely on such advice. Not only was the sales person not legally trained to give such advice, any advice from the sales person would be influenced by the desire to make a sale.

[35] Thirdly, I agree that the law in this area is confusing. This results to a large extent from the fact that the definition of “motor vehicle” in the Highway Traffic Act is different than the definition in the Criminal Code. In the Highway Traffic Act e-bikes are excluded from the definition of motor vehicle and therefore if Mr. Clifford’s license would have been suspended as a consequence of breaching a provision of the Highway Traffic Act, presumably it would have been permissible for him to ride his e-bike. However, Mr. Clifford was well aware that such confusion existed, and this did not entitle him to adopt a course of action which was most beneficial and favourable to him, and then argue later that he did not intend to break the law.

[36] In conclusion this is not a situation where it can be said that Mr. Clifford believed on reasonable grounds that he was acting in accordance with the law, and that there was no intention on his part to break the law. If he had formed this belief in his mind, it was a result of wishful thinking and a failure on his part to take reasonable steps to ascertain the law.

Decision

[37] In summary, and for the reasons I have stated, I find that an e-bike is a motor vehicle as defined in the Criminal Code. Mr. Clifford was under a court ordered prohibition not to operate a motor vehicle, and by operating his e-bike, Mr. Clifford breached section 259(4) of the Criminal Code. I find that he was not induced to ride his e-bike by the actions of the police officers with whom he had encounters during the months prior to being charged. The comments made to him by Sergeant Van Erp and Constable Kewaquado should have caused him to refrain from riding his e-bike, and to take reasonable steps to ascertain his rights, which he failed to do. Finally, I find that Mr. Clifford’s decision to ride his e-bike was intentional, and it was made in circumstances where he was aware or should have been aware that he might be breaking the law by riding his e-bike. In the circumstances, I find Mr. Clifford guilty of the offence charged.

E.J. Koke (SCJ)

Date: April 15, 2014