IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Goreham, 2008 NSPC 5
Date: January 31, 2008
Docket: 1697424
Registry: Yarmouth
Between:
Her Majesty the Queen
v.
Robert Terry Goreham
Judge: The Honourable Judge James H. Burrill
Heard: January 31, 2008, in Barrington, Nova Scotia
Charge: 287(2) MVA
Counsel: Jim Fyfe, for the Crown
Philip Star, Q.C., for the Defence
By the Court:
[1] On August 9, 2006, Robert Terry Goreham was observed by police officers driving his all terrain vehicle (ATV) along Highway #3 in the community of Woods Harbour, Nova Scotia. At the time his driver’s license was revoked. These facts were agreed and the only issue at this trial is whether this makes the accused guilty of the offence of driving a motor vehicle on the highway while his license was revoked contrary to s.287(2) of the Motor Vehicle Act.
[2] The Crown argues that because Mr. Goreham was driving a motor vehicle on a highway and his “driver’s license” was revoked he is guilty of the offence.
[3] The Defence argues that it is not that simple. The defence position is that the words “motor vehicle” in Section 287(2) do not include an ATV and that even if those words did, the accused should be found not guilty because his license revocation is irrelevant since he could never have been licensed to drive an ATV on the highway. It is argued that since there is no nexus between his driving of the ATV and the revocation of his driver’s license he should be found not guilty of this offence.
ANALYSIS
[4] The use of an ATV on public highways is clearly prohibited under the Motor Vehicle Act. Section 11 of the Act reads:
S. 11 “The Department shall not register, and no person shall operate on a highway......an all terrain vehicle.....”
While I note that section 12 of the Off-Highway Vehicles Act permits the operation of an ATV upon a highway in very limited circumstances these provisions are not relevant to this case. Under the Motor Vehicle Act an individual driving a motor vehicle upon a highway must be properly licensed. Section 2(m) defines “driver’s license” as:
S. 2(m) “”Driver’s license” means a license issued under this act to drive a motor vehicle upon the highway.”
Section 64 reads:
S.64 “Subject to Section 65 and Subsection (6) of Section 75, no person shall operate any motor vehicle upon a highway in the Province unless such person has a valid driver’s license under the provisions of this Act for the type or class of vehicle being driven.”
Each licence is issued for a type or class of vehicle, but since an ATV is a prohibited vehicle under Section 11 there is no license that can be issued to drive one on the highway.
[5] The defence argues that the words “motor vehicle” in section 287(2) should not be read to include an ATV or other vehicles prohibited from operation upon the highway by section 11. Section 287(2) reads:
s. 287 (2) “A person shall not drive a motor vehicle while his license or privilege of obtaining a license is cancelled, revoked or suspended under this Act.”
The words “motor vehicle” are defined in section 2(cd):
s. 2(cd) “”motor vehicle” means a vehicle, as herein defined, which is propelled or driven otherwise than by muscular power”
[6] Despite this simple definition of “motor vehicle” the defence argues that R. v. Boutilier, [2002] N.S.J. No. 389 (N.S.S.C.) is authority for the proposition that an ATV is not a motor vehicle within the meaning of the Act. Boutilier is a case where the accused was charged with driving a motor vehicle without proper insurance. Section 230(1) makes it an offence for a person to operate a “motor vehicle registered or required to be registered under this Act” unless there was proper insurance on the vehicle.
In Boutilier the accused was operating an ATV on a portion of the highway (a sidewalk). He did not have insurance. The Crown in Boutilier argued that although section 11 of the Act prevented the Registrar from registering an ATV it was still a vehicle that was “required to be registered” since it was being driven on a highway. They argued that section 37 of the Act made it an offence to operate a motor vehicle on the highway that was not registered. The Crown asked the court to find that even though section 11 prevented an ATV from being registered, if it was motor vehicle being driven on the highway it must still fall within the definition of a “motor vehicle that was required to be registered”.
[7] In rejecting that argument and upholding the Adjudicator’s decision at trial at paragraphs 24 - 25, LeBlanc J. said:
“Although the Appellant contends that the interpretation or definition section of the Motor Vehicle Act permits the inclusion of all-terrain vehicles as motor vehicles by virtue of the fact that they are not operated simply by muscular power; clearly, s. 11(2) of the Interpretation Act reminds us that this might be a possible interpretation unless a different intention is expressed or the meaning of the interpretation or definition section or provision is inconsistent with the content or purpose of the enactment.
Certainly, it is obvious that the all-terrain vehicle must be excluded from the definition of the motor vehicle as a different intention is clearly expressed.”
[8] In making this ruling LeBlanc J. was clearly not exempting ATV’s from the definition of motor vehicles in all provisions of the Motor Vehicle Act. He was dealing with section 230(1) and the phrase “motor vehicle registered or required to be registered under this Act.” He held that an ATV was not such a motor vehicle.
[9] Justice LeBlanc’s intention to not exempt ATV’s from all references to “motor vehicles” in the Act became clear when he said at paragraph 37:
“It is my view that Mr. Boutilier could be charged with an offence of operating a motor vehicle on the highway, or for speeding and would be liable for any damages arising in the event of an accident.”
This statement appears consistent with the decision in Lutz v. Judgement Recovery (N.S.) Ltd., [1993] No. 326. This case dealt with the issue of whether the Judgement Recovery provisions of the Motor Vehicle Act applied to a situation where the defendant had been driving an ATV. At paragraph 9 of that decision Hall J. said:
“It seems absurd to suggest that a lawfully licensed driver operating a properly licensed automobile or truck on a highway would be liable for violations of the Motor Vehicle Act such as speeding or imprudent driving, while a person operating an off-highway vehicle on a highway could not be subject to the same obligations and be liable for the same penalties for such violations”
[10] It seems apparent, therefore, that one must consider the context in which the words “motor vehicle” are used within the sections of the Motor Vehicle Act to determine whether the provision applies to the use of ATV’s or other prohibited vehicles. When the content, context and purpose of section 287(2) is considered I find that the legislature intended for that subsection to prohibit the use of motor vehicles on the highway by those individuals who had their licences or privilege of obtaining licences to do so cancelled, suspended or revoked. Before one can be guilty of such an offence I find that it must be proven that they were driving a motor vehicle of a type or class for which they could properly have been licensed to drive on the highway. In s.287(2) the words “motor vehicle” include only those types or classes of vehicles for which one can obtain a license to drive it on the highway.
[11] In this case Mr. Goreham could not have obtained a license to drive an ATV on the highway because it was a prohibited vehicle. It was a vehicle of the wrong type or class to get a license. Mr. Goreham is, therefore, not guilty of driving a motor vehicle while his license was revoked and the charge under s. 287(2) is dismissed.
[12] I hasten to add that this does not mean Mr. Goreham’s conduct was lawful. In fact, he would certainly have been guilty of driving a prohibited vehicle on the highway under s. 11, but that is not the charge before the court.