R. v. Rei

2012 BCSC 1028 R. v. Rei

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rei, 2012 BCSC 1028 Date: 20120712 Docket: 59874 Registry: Chilliwack Between: Regina Crown/Respondent And Raymond Rei Accused/Appellant Corrected Judgment: The text of the judgment was corrected at Paragraph 7 on July 13, 2012; and Paragraph 21 on August 16, 2012 Before: The Honourable Mr. Justice N. Brown On appeal from Provincial Court of British Columbia, decision dated January 6, 2012 File No. AH55974557-1 and March 9, 2012 File No. AH53062396 Reasons for Judgment Counsel for Accused/Appellant: In person Counsel for Crown/Respondent: P. Blessin Place and Date of Hearing: Chilliwack, B.C. July 3 and 5, 2012 Place and Date of Judgment: Chilliwack, B.C. July 12, 2012 [1] Mr. Rei appeals his convictions for § operating a motor vehicle on the highway without a driver's licence on March 7, 2011 and on April 25, 2011, contrary to s. 24(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA]; and § operating a motor vehicle on a highway without insurance on March 7, 2011 and April 24, 2011, contrary to s. 24(3)(b) of the MVA. [2] These are separate offences. Two Judicial Justices heard the two sets of charges. On January 6, 2012, Judicial Justice Blackstone heard the first two charges and convicted the appellant on both counts. Judicial Justice Hayes heard the second set of two charges on March 9, 2012, and convicted the

appellant on both counts. [3] In both the March and April incidents, Mr. Rei, the Appellant, was operating what the MVA and MVA regulations define as a Motor Assisted Cycle ("MAC"). Section 1, the definition section of the MVA, defines a MAC as follows: "motor assisted cycle" means a device (a) to which pedals or hand cranks are attached that will allow for the cycle to be propelled by human power, (b) on which a person may ride, (c) to which is attached a motor of a prescribed type that has an output not exceeding the prescribed output, and (d) that meets the other criteria prescribed under section 182.1 (3) [4] Section 182.1 gives the Insurance Corporation of British Columbia ("ICBC") authority to make regulations for operators of MACs and equipment attached to them. The Motor Assisted Cycle Regulation, B.C. Reg. 151/2002 [MAC Regulation], proclaimed pursuant to that authorization includes the following criteria: Motor Assisted Cycle 1 (1) A motor assisted cycle must have no more than one motor for propulsion. (2) The motor of a motor assisted cycle must (a) be an electric motor, (b) have a continuous power output rating of not more than 500 watts, and (c) not be capable of propelling the motor assisted cycle at a speed greater than 32 km/hr on level ground. Wheels 2 (1) The wheels of a motor assisted cycle must be 350 mm or more in diameter. (2) A motor assisted cycle must

not have more than 3 wheels in contact with the ground. Motor shut-off requirement 3 (1) A motor assisted cycle must be equipped with a mechanism, separate from the accelerator controller, that (a) allows the driver to turn the motor on and off from a normal seated position while operating the motor assisted cycle, or (b) prevents the motor from turning on or engaging before the motor assisted cycle attains a speed of 3 km/hr. (2) The motor of a motor assisted cycle must turn off or disengage if (a) the operator stops pedaling, (b) an accelerator controller is released, or (c) a brake is applied. [5] A MAC can be visualized as either a light scooter with pedals or as a regular bicycle with a small electric motor attached to the frame, near the pedals. The cycle Mr. Rei was riding on both days looks like a light scooter with bike-style pedals attached. [6] A cycle meeting all these criteria falls outside the s. 1 definition of "motor vehicle" in the MVA and requires no insurance. [7] The regulations also define other classes of cycles, including traditional motorcycles. But one other class of cycle relevant here for comparative purposes is what the legislation calls a Limited Speed Motorcycle ("LSM"). [8] Section 1 of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 defines an LSM this way: "limited speed motorcycle" means a motorcycle that (a) is equipped with a motor

having (i) a piston displacement of not more than 50 cc, or (ii) a power source that produces a maximum of 1.5 kW, (b) has a power drive system that does not require clutching or shifting by the operator after the drive system is engaged, (c) has a maximum attainable speed on level ground, with or without pedals, of 70 km/hr, (d) has a maximum weight of 95 kg excluding fuel or batteries used to store energy for vehicle propulsion, and (e) has wheels of a diameter of 254 mm or more; [9] A cycle matching these criteria is classified as a motor vehicle. Anyone driving one, therefore, must have a driver's licence and the owner has to register and insure it. [10] The cycle Mr. Rei was riding both times corresponds to how the regulations define a MAC, except in two significant ways. [11] First, its pedals were detached. Judicial Justice Blackstone, who presided over the January 6, 2012 hearing, which dealt with the March 2011 charges, rejected Mr. Rei's suggestion that the pedals were knocked off his scooter when he had an accident. I cannot fault the Judicial Justice of the Peace's reasons for reaching that conclusion. [12] Second, the cycle did not comply with the definitions set out in s. 3(2) of the MAC Regulation, which require that the electric motor disengage or stop running when the operator stops pedalling, releases the accelerator or applies a brake. Obviously, without a

pedal to push, there is no way to stop the motor from running. [13] I note the Judicial Justices focused on the motor vehicle definition. I understand the regulations were not canvassed. [14] Mr. Rei explained he takes the pedals off because he finds them unsafe. When he leans a little when turning a corner, he complained, the pedals, being too low, scrape the pavement. He has fallen over this way several times, so he does not feel safe riding his scooter with the pedals attached. He drives his scooter using just the electric motor; but a MAC is supposed to be incapable of running on the electric motor without some pedal propulsion. In any case, Mr. Rei said he has heard of other people riding this type of scooter complain about unsafe pedals; and he has seen others riding around on them without pedals. If there is a safety issue, it should be delved into, but I cannot meaningfully address that concern here. [15] Mr. T. Carpinetti, a manager employed by ICBC, testified. He gave the Court useful insights into the origins of the legislation. He also showed the Court a copy of information about MACs that is readily obtainable on ICBC's website. [16] The provincial regulations derive from federal government Transport Canada provisions, with minor modifications. For example, the federal regulations refer to propulsion coming from muscle power whereas the provincial regulations

illustrate the same concept by stating MACs must have a hand crank or pedal attached to them. It is not the difference in wording that is worth noticing but the concept common between them, human propulsion. This is an essential component of a MAC. This is what sets it apart from all other classes of motorized cycles. The electric motor on Mr. Rei's scooter is supposed to supplement, not supplant, human propulsion. [17] Mr. Carpinetti explained how ICBC views MACs. ICBC is the liability insurer of every motor vehicle in B. C. and drafted the MAC Regulation relevant here. He explained that a person riding a MAC with the pedals attached (and presumably engaged correctly with the electric motor) does not require registration, insurance or a driver's licence. If someone removes the pedals, however, which apparently is easy to do, a cycle that was once a MAC is no longer a MAC, as far as ICBC is concerned. Further, because it then would no longer fall within any recognized class of cycle, it remains unregisterable and uninsurable, even if the operator wished to register and insure it. Without pedals, from the Corporation's perspective, it should not be on a public roadway. [18] As it is, the essence of how the insurer views MACs without pedals agrees with the decisions of the two Judicial Justices, the submissions of the respondent and with my interpretation of the MVA and MAC

Regulation. [19] Once Mr. Rei removed the pedals, he removed any effective way for him to propel the scooter himself, and it no longer fell within the class of a MAC. He has two options, to operate it with the pedals on, or take them off and confine it to private roads. It is not necessary to determine whether it would have complied with the definition, had the pedals been attached - i.e. whether the pedal mechanism was properly connected to the operation of the electric motor. [20] At first look, the police officers' ticketing of Mr. Rei might seem a case of overly zealous policing or bureaucracy run amok. But the dividing line between cycles that should be registered and insured and their operation confined to licensed drivers, and those that do not, has to be marked in some way. As the legislation stands, it has marked out the dividing lines between cycles that do not need registration, insurance and a licensed operator and those that do; and one of those essential markers for a MAC being pedals or hand cranks attached to the cycle and usable for their intended purposes. [21] Perhaps the regulations would benefit from a review. Judicial Justice Blackstone commented in her reasons on the uncertainty surrounding legal uses of MACs, mentioning her reading about related concerns in a Vancouver Province newspaper article. Although the MAC Regulation in my view is clear, given the

possible validity of safety concerns relating to pedal placement, the increasing numbers of scooters of various kinds travelling public roads in B.C. communities and the fact there appears to be some uncertainty surrounding the legal definition of MACs, a review could benefit the public, and the operators of MACs in particular. [22] That said, it is clear both appeals should be dismissed. In my view, both Judicial Justices decided correctly. "N. Brown J."