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Monday, April 12, 2010

“Self-propelled implement of husbandry” - Conviction Upheld

The Ontario Court of Appeal has upheld the convictions of Petrus Van Berlo on charges related to the unlicensed use of an alleged farm vehicle on the highway.  The appellant was convicted of offences that required the vehicle in question to be a “motor vehicle”, such as permitting the operation of motor vehicle on a highway without a permit. The definition of “motor vehicle” in the Highway Traffic Act (HTA) excludes a “self-propelled implement of husbandry”. Thus, the appeal turned on whether Mr. Van Berlo’s vehicle came within this exception, as a self-propelled implement of husbandry. If so, the parties agreed that the appeal must succeed and the convictions must be set aside. If not, the appeal would fail.  The Court of Appeal dismissed the appeal.

The term “self-propelled implement of husbandry” is defined in s. 1.1 of the HTA.:
“Self-propelled implement of husbandry” means a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming.
The Court agreed that the vehicle in question was self-propelled, but found that it had not been "coverted ... for a specific use in farming".  The appellant purchased the vehicle on August 11, 2002 for $2,000.  It was a 1976 Chevrolet pick-up truck.  His intention was to modify it for use in his irrigation operations.  He then spent $16,000 on the vehicle so it could tow farm equipment from farm to farm and from field to field, and so it could be used in the fields for irrigation purposes.  He had the gasoline engine replaced with a diesel engine for more power.  The gearing was changed and the two-wheel drive was converted to four-wheel drive. Large tread snow tires were installed to facilitate driving through fields of mud and sand.  Finally a hitch, ten times heavier than a regular trailer hitch, was installed at the rear of the vehicle to allow for the pulling of various pieces of farm equipment.

In the Court of Appelal's view, to be “converted for a specific use in farming” a vehicle must be changed significantly enough that, viewed objectively, its essential character or function has been transformed for that specific use, although it may retain some limited capacity for other functions.  The transformation cannot just be for general use in farming, it must be for a specific use.  In this case, the Court found that the changes were not of the sort that creates a "self-propelled implement of husbandry":
When this interpretation is applied to the facts of this case, I conclude that the appeal must fail. As the Ontario Court of Justice found, the changes made by the appellant really do not change the character of the vehicle. The appellant installed a more powerful engine, changed the gearing, converted the vehicle from two to four-wheel drive, and installed large tread snow tires and a stronger rear hitch. Whether taken separately or together, these modifications do not change the vehicle from a truck into something different. Although these changes make the vehicle more powerful and therefore better able to perform some functions, such as pulling loads, these functions remain essentially the same. Nor do the changes point to the specific use of irrigation. At best, they are for general use in farming. Viewed objectively rather than through the lens of the subjective intention of the appellant, the changes are neither significant enough to change the essential character or function of the vehicle, nor can they be described as for the specific use of irrigation in the appellant’s farming operation. In other words, the appellant cannot bring the vehicle within the defined exception.
Read the decision at: R. v. Van Berlo.