ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 197/14 Brampton
DATE: 2015-12-04
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH MORRISON
P. Renwick, for the Crown, Respondent
A. Ruffo, for the Defendant/ Appellant
HEARD: June 19, 2015
SUMMARY CONVICTION APPEAL
REASONS FOR JUDGMENT
Gibson J.
[1] The Appellant Mr. Morrison appeals against the conviction for impaired operation of a motor vehicle under s.253(1)(a) of the Criminal Code entered by Justice R. Kelly of the Ontario Court of Justice at Brampton on December 5, 2013. The vehicle in question was a Davinci Scout e-bike. In the alternative, he also appeals against the sentence imposed by Justice Kelly on March 21, 2014. The sentence was 6 months in custody followed by 12 months probation, and a 15-year driving prohibition.
[2] The grounds of appeal advanced by Mr. Morrison are that:
The learned trial judge misapprehended the evidence, causing him to err in his application of the W.(D.) criteria;
The learned trial judge erred in his analysis of whether an e-bike is a motor vehicle as defined by s.2 of the Criminal Code, for the purposes of the offence under s.253(1)(a) of the Criminal Code; and,
The sentence imposed by the learned trial judge is unfit.
[3] The Appellant requests that, if the conviction is upheld, the sentence appeal be allowed and a sentence of 120 days in custody and a five-year driving prohibition be substituted.
The Facts
[4] On the evening of February 20, 2012, Mr. Morrison was enjoying a long weekend, having a few beers with a friend at his residence. At about 8:00 p.m., Mr. Morrison and his friend left to go visit another friend living nearby. He used his Davinci Scout e-bike to transport them. The passenger did not wear a helmet. Mr. Morrison went through a red traffic light, and was subsequently stopped by Constable Philips.
[5] At trial, the defence did not challenge that Mr. Morrison was impaired by alcohol at the time of his arrest. Rather, there was a dispute at the trial between the evidence of Constable Philips and the evidence of the Appellant as to whether there were pedals on the e-bike at the time of the incident, and whether the motor was running. The position of the defence was that the e-bike was not a motor vehicle within the definition of s.2 of the Criminal Code.
[6] The trial judge expressed concerns about Mr. Morrison’s credibility, saying that his evidence “on the core factual issues defie[d] common sense and human experience.” He rejected Mr. Morrison’s evidence that the battery was out of the vehicle and that he was operating the Scout e-bike only by means of his feet on the pedals. In contrast, the trial judge accepted the police officer’s evidence that there were no pedals on the e-bike at that time, only foot pegs, and that Mr. Morrison was driving it with the motor running.
Analysis
[7] The Appellant argues that the trial judge erred in his interpretation of s.2 of the Criminal Code, specifically that the Scout e-bike was not a “motor vehicle” as that term is defined in the Code, regardless of whether the Appellant was relying solely on the pedals to propel the e-bike. The Appellant also submits that, in the alternative, the trial judge erred in applying the second and third branches of the analysis required in R. v. W.(D.) 1991 93 (SCC), [1991] 1 SCR 742 at 757 in considering whether the Crown had proven beyond a reasonable doubt that the Scout e-bike was a motor vehicle under s.2 of the Code.
[8] Section 2 of the Criminal Code 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.”
[9] In Saunders v. The Queen,1967 56 (SCC), [1967] SCR 284 at 287, the Supreme Court of Canada held that this statutory definition “ contemplates a kind of vehicle,” rather than its actual operability or functioning. That is, the definition refers to “the type, the nature and not the actual operability or effective functioning of this particular vehicle.”
[10] The Appellant submits that because the Scout e-bike is capable of being propelled by muscular power, “it would be incorrect to say that the device is the kind that is drawn, propelled or driven by means other than muscular power. As its name suggest, it is a “bike” and not a motor vehicle.” Following the Court’s reasoning in Saunders, he suggests, it is irrelevant to the analysis whether there is a battery in the device and whether the pedals are functional. So long as the device is the kind that is capable of being drawn, propelled or driven by muscular power, the device is not a motor vehicle as defined in the Code.
[11] I would note that in R. v. Pizzacella, 2013 ONSC 771 (leave to appeal refused, 2014 ONCA 706), the summary conviction appeal judge Ramsay J. agreed with the trial judge’s determination that there must be operable pedals on the device in order to be excluded from the definition of a motor vehicle under s.2 of the Code. Similarly, in R. v. Clifford, 2014 ONSC 2388, the trial judge Koke J. held at para. 14 that “ it is only in 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.”
[12] I disagree with the Appellant’s submission on this issue, and consider rather that the position taken by the Crown on the appeal is the correct one: in Saunders, the Supreme Court of Canada set out the purpose of the care and control sections. Rather than reading down the s.2 definition of motor vehicle in the Code, it expanded the definition to include not only those things that are driven by non-muscular power, but those that can only be driven by non-muscular power. To interpret Saunders in the manner submitted by the Appellant would be inconsistent with the stated intention of the legislation, and would afford carte blanche to impaired individuals to operate a motorized vehicle on a public highway.
[13] I therefore agree with the Crown’s submission that while the Appellant correctly states that the definition of motor vehicle captures the kind of vehicle, its essential character, and not the contextual operability or condition of it, in this context there is not practical distinction between a motorized scooter and an automobile: both can be operated with or without muscular power. One can push an automobile that is out of gas, or drive it down a hill, and it would still be a motor vehicle, and one could be found guilty for operating it if impaired. Therefore, a scooter capable of being operated by non-muscular power, but actually being operated by muscular power at a given moment, is a motor vehicle, just as an automobile would be.
[14] To be clear: I consider that a Davinci Scout e-bike is a “motor vehicle” within the definition of s.2 of the Criminal Code.
[15] I consider that the submission that the trial judge failed to properly apply the second and third stages of the W.(D.) analysis is without merit. The trial judge correctly carried out the analysis, and carefully reviewed the evidence before him while correctly considering the onus of proof and the standard of reasonable doubt.
[16] Regarding the sentence appeal, it must be noted that the Appellant had a significant criminal record at the time of sentencing, including two convictions for impaired driving, two for driving with excess blood alcohol and two for driving while disqualified, as well as two for driving under suspension as a provincial offence. He had been subject to two 90-day and one 60-day custodial sentences for s. 253 offences on previous occasions.
[17] The trial judge considered the lesser moral blameworthiness attached to this particular factual scenario, but also correctly considered that there was not a complete absence of risk, particularly in the circumstances of going through a red light with an unhelmeted passenger in the dark at 8:30 p.m. on a winter evening.
[18] The Appellant submits that having regard to the circumstances of the offender and the offence, the 6 month custodial sentence and 15 year driving prohibition imposed on the Appellant were overly harsh and excessive, and requests that this Court substitute instead the mandatory minimum sentence of 120 days and a five-year driving prohibition.
[19] Sentencing is an individualized process and the minimum penalties in s.255 are not restricted to an ideal lowest offender. However, in this case, I disagree with the Appellant’s submission. The sentence imposed by the trial judge evinces no error and was fit on the facts regarding this offence and this offender. Clearly by his conduct Mr. Morrison still just does not get it regarding operations of a vehicle while impaired, and both the principles of specific and general deterrence require a significant sentence in this case beyond the minimum sentence.
Disposition
[20] Therefore, the appeal as to conviction is dismissed. The appeal as to sentence is also dismissed.
Gibson J.
Released: December 4, 2015