When is a "bike" a motor vehicle?

Ricky Pizzacalla's legal saga appears at an end. The issue that began his legal saga was whether the "e-bike" he was operating, at time he was stopped by police, was a "motor vehicle" - something he was prohibited from operating due to an earlier impaired conviction. Pizzacalla had argued at trial that it was not a motor vehicle, in part because he did not require a licence to operate it. As noted by the Court of Appeal, that argument did not succeed at trial:

held that the device Mr. Pizzacalla was driving was not a power-assisted bicycle as, under the Highway Traffic Act, at s. 1(1), such a machine is defined, among other things, as having “affixed to it pedals that are operable” and as being “capable of being propelled solely by muscular power”.   
The device Mr. Pizzacalla was driving did have two pedals.  However, neither was operable.  One was attached to the device but not in a way that would allow the driver to propel the device by muscular power.  The other pedal was not attached to the device at all; it was in a storage compartment on the device.
The trial judge went on to find that, as the device Mr. Pizzacalla was driving was not capable of being propelled by muscular power, it fell within the definition of a “motor vehicle” in s. 2 of the Code.  A motor vehicle is defined in that section as “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment”. [@4-6].

Pizzacalla launched a summary conviction appeal and renewed his argument. That appeal was dismissed. 

Pizzacalla then sought leave to appeal to the Court of Appeal. That court dismissed his leave application: None of Mr. Pizzacalla’s arguments raise an issue of law alone.  They do not provide a basis to grant leave to appeal. [@11]: 2014 ONCA 706.

It appears that Pizzacalla's legal saga is now over. His "device" was indeed a motor vehicle within the meaning of section 2 of the Criminal Code.


When is a "firearm" not a "weapon"?

On November 5, 2014 the Supreme Court will hear argument in the matter of R v Dunn, 2013 ONCA 539.  The appeal will resolve the age-old question (or at least a burning one in Ontario) – when is a “firearm” not a “weapon”?

Christopher Dunn was being watched by some investigators on behalf of the Workplace Safety Insurance Board. The investigators noted that Dunn met with another man; during that meeting Dunn pulled out, what appeared to be, a pistol from his jacket and seemed to be pointing it at the other man. The pistol was put away and Dunn left. The investigators contacted the police and alerted them to what he had seen.

The police later attended at Dunn’s trailer and ultimately seized what turned out to be a Crosman Pro77 airgun that fires .177 calibre spherical BBs propelled by means of compressed air from a canister. The airgun was determined to be functional and was loaded with a partly used CO2 cartridge; there was no ammunition in the magazine. 

A firearms examiner who gave expert evidence agreed in cross-examination that this type of airgun can be purchased without the purchaser’s having to produce any documentation, as long as the muzzle velocity does not exceed 500 feet per second (“ft./s.”). The respondent’s airgun had an average velocity of 261.41 ft./s.
The expert gave evidence about a scientific study done to determine the velocity needed for a BB to penetrate the human eye – the so-called pig’s eye study, which used pig’s eyes because of their similar size and composition to the human eye. According to the study’s findings, any shot exceeding 214 ft./s. was capable of causing serious injury. A BB shot travelling at this speed would penetrate the eye of a 10-month old pig some of the time. A BB travelling at 246 ft./s. would penetrate the eye 50 percent of the time. The respondent’s airgun thus exceeded both thresholds.
The expert further testified that this particular airgun is built to closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun. [@7-9]

Dunn was charged with various offences including handling a firearm (s 86), pointing a firearm (s 87), carrying a weapon for dangerous purpose (s 88) and carrying concealed weapon (s 90). 

In considering those charges the trial judge noted that the offence of pointing a firearm “required proof that the airgun in question is a firearm, and that the other three counts required proof that the airgun was either a firearm or a replica firearm”. Citing McManus, 2006 CanLII 26568 (ONCA) the trial judge held that if a the firearm “is not a ‘real powder fired bullet shooting gun’, the Crown must prove that it is a weapon, as defined in s. 2 of the Criminal Code, before any finding could be made that it is a firearm” [@11]. On the facts the trial judge “held that the Crown had failed to prove that the airgun was used or intended to for use in any of the ways specified in s. 2. It was therefore not a weapon, and could not be a firearm” [@13]. The Crown appealed.

On appeal the Crown sought to argue that McManus, was wrongly decided and contrary to binding authority, namely Felawka, 1993 CanLII 36 (SCC). The Court of Appeal agreed to sit five members in order to consider that issue.

In considering the appeal the court noted that the “appeal turns on the proper interpretation of the terms ‘firearm’ and ‘weapon’ in the Criminal Code. There is only one issue in this appeal: must an object (to use a neutral word) that falls within the definition of ‘firearm’ in s. 2 also meet the definition for ‘weapon’ in the same section. The interpretation issue arises from the fact that each definition refers to the other” [@14]. This is evident from a review of the definition of weapon in the Code which states that it is any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person – and without restricting the generality of the foregoing includes a firearm.

After reviewing Felawka and McManus the court concluded that the Crown need not prove that an object which is a firearm must also fall within paragraph (a) or (b) of the definition of weapon. To the extent that McManus held otherwise it was wrongly decided.

Not only was this conclusion reached on the basis of the binding decision in Felawka but also on the basis of statutory interpretation.

To conclude, in my view, there is no ambiguity in the definition of firearm in s. 2 when regard is had to the legislative history and the context and scheme of the legislation. Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition in para. (a) or (b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as the offences charged against the respondent in this case. [@66].

The Supreme Court is now set to consider the issue. The Court of Appeal’s ruling is compelling. Not only did it conclude that McManus conflicted with Felawka but based on a thorough statutory interpretation analysis, the court came to the same conclusion. But, the courts are not Dunn yet considering this issue…stay tuned.


Current & Curious: Procuring is not a SPIO, but should it nonetheless be a route to a DO?

Mark Burton was charged with a number of sexual offences, several prostitution related offence and offences related to breaches of probation orders and an under section 810.2. Burton plead guilty to some of the breach offences and at the conclusion of the trial Trotter J acquitted him of all but the attempt to procure a person, AT, into prostitution and the breach of the 810.2 order: 2013 ONSC 2160.


Following these convictions the Crown sought a ruling on whether the attempt to procure conviction constituted a serious personal injury offence [SPIO], a requirement for dangerous offender application the Crown had indicated they were planning to bring. Trotter J held that it was not: 2013 ONSC 3120.

As part of the submissions on the application the Crown:

(…) emphasized the horrors and evils of prostitution, especially when young persons such as A.T. become ensnared in this dark and dangerous world. The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognized and accepted by social science, and reflected in the legal literature and Canadian jurisprudence: see, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), Committee on Sexual Offences Against Children and Youth (Badgley Committee), Sexual Offences Against Children in Canada (Ottawa: Supply and Services Canada, 1984), Special Committee on Pornography and Prostitution (Fraser Committee), Pornography and Prostitution in Canada (Ottawa: Supply and Services Canada, 1985), R. v. Miller, [1997] O.J. No. 3911 (S.C.J.) and Bedford v. Canada (Attorney General), (2012), 282 C.C.C. (3d) 1 (Ont. C.A.), per Doherty J.A. at pp. 46-51 [para 10].

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New & Notable: "Violence", its really not that hard to define

Randy Smith is a violent criminal with a lengthy criminal record. His most recent foray involved a short crime spree during which he robbed, or attempted to rob, four different persons; assaulted some of them and drove in a dangerous manner causing injuries to persons when he did.


After his conviction the Crown sought to have him declared a dangerous offender. An issue arose as to whether any of the offences were “serious personal injury offences” as defined in section 752 (which is required for an assessment under section 752.1). Kiteley J held that they were not, applying an objective standard of “serious” violence: 2010 ONSC 4725. The Crown appealed. The Court of Appeal allowed he appeal and clarified the issue: 2012 ONCA 645.

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New & Notable: Driving impaired not a marked departure? Not that it's the test anyway...

Suggashie was acquitted after trial of impaired operation of a motor vehicle contrary to s 253(1)(a) of the Criminal Code.

The trial was held in the First Nation territory of Pikangikum.


On appeal [2012 ONSC 22929], which was held in absentia, the Crown argued two grounds:


First, that the trial judge erred in law in finding that issue at trial was whether the conduct of the accused demonstrated a marked departure from that of a normal person.

Second, that the trial judge erred in finding that First Nations peacekeepers are peace officers with all the rights and responsibilities that such a designation entails.

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