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Saturday, July 24, 2010

Farmer acquitted in another "self-propelled implement of husbandry" case

Justice of the Peace W. Rojek at Guelph, Ontario has acquitted an Ontario farmer, John Luymes, of several counts under the Highway Traffic Act (HTA) related to his use of a modified dump truck for farming purposes.  Luymes was charged after the following exchange with a Ministry of Transportation (MTO) officer:
On October 31st, 2008 the Ministry of Transport Officer Andrew Brown observed a vehicle travelling normally on Wellington Road 12 approaching Wellington Road 7 in the County of Wellington. The vehicle displayed a triangular slow moving motor vehicle sign at its rear driver’s side. The vehicle had three axles, a cab located behind the engine compartment and a dump box with a tailgate on it. The large tires mounted on the vehicle are commonly known as flotation tires. There were no licence plates attached to the vehicle. Officer Brown stopped the vehicle and spoke to the driver. The driver telephoned the vehicle’s owner, who is the defendant, John Luymes, and Mr. John Luymes then attended at the location where the vehicle was stopped. The defendant, John Luymes, told Officer Brown that he was the owner of the vehicle and described to Officer Brown the changes he made to the vehicle. The defendant, John Luymes, told Officer Brown that because of the changes of the characteristics and changes, he believed that the vehicle was a self-propelled implement of husbandry. Officer Brown examined the vehicle and told the defendant that the vehicle was a commercial motor vehicle. The defendant was then served with the summonses for the offences before the court.
Several different charges were laid.  For most of the charges, the salient issue was whether or not the vehicle was a "self-propelled implement of husbandry" as described in the HTA.  Luymes testified about the changes he made to the vehicle:
The defendant testified that they made the following changes to the vehicle in question: designed and manufactured a silage box, Exhibit Numbers 21 and 22, and how the vehicles are used. The photographs filed as Exhibits 23 and 24 show that the trucks are working together with the combines receiving harvested forage. Mr. Luymes explained that the tires were changed so the vehicle would not “sink” in the fields ground. The defendant told the court that when the harvested forage is blown onto these vehicles they transport the load to the farm’s bunker silo and the product is rear-discharged into that bunker silo and packed in firmly and the feed is preserved for the cattle as shown on the photo filed as Exhibit Number 26. That was the reason for designing and manufacturing specific boxes with the different type of gate which would allow the rear-discharge directly into these bunker silos. And this is why the boxes are called silage boxes. The vehicles needed also to be able to move alongside a forage harvester safely. They needed also to travel from the field to the farm relatively quickly. They needed to be operated safely on the highway day or night time.
Mr. Luymes advised the court that the vehicles he described are better equipped and definitely safer on the highway than most farm trailers, farm tractors and dump trailers. Mr. Luymes testified that if there was a need to haul grain to a commercial elevator on a highway he is using licensed trucks, farm-plated with the proper insurance policy attached to each vehicle. The vehicles used to collect forage are marked with slow vehicle signs as required for the self-propelled implement of husbandry. These vehicles do not travel at high rate of speed, are equipped with tires of limited speed and that they trying to operate within speed range of the tires. Mr. Luymes explained that on the day in question it was his son who operated the vehicle on its way to the farmstead to do the forage harvesting.
J.P. Rojek agreed with Luymes that, following the modifications to the vehicle originally purchased, it became a "self-propelled implement of husbandry":
It was then redesigned in the manner which can be summarized as follows: The box was designed and manufactured for accepting harvested forage from a combine or forage harvester and to be able to discharge such forage into the bunker silo. The rear two axles were redesigned from the original either highway wheels to four wheels fitted with flotation tires. The said tires had speed limits depending on load and air pressure from 10 miles per hour to 30 miles per hour (16 kilometres per hour to 48 kilometres per hour).
I am finding that the changes made to the tires and axles had met the criteria of objective change to that vehicle in the sense that it would be impossible to use that vehicle for its previous purpose which was hauling the loads on the highway. As I understand, the dump trucks (which apparently that vehicle was before) can travel with their load at regular highway speeds. This vehicle, as I said before, due to its tires limitations would not be able to do so. The mere fact that it was able to travel at approximately 80 kilometres per hour when empty would still be within “retaining some of its other capacities part of the test.” That change, in my understanding, is an objective one, does not depend on the end user. That vehicle was objectively changed from the highway dump truck to the forage harvesting vehicle. The mere fact that any kind of bulk goods could be still transported by it still fits in that objective change category. One could put anything in it but still could not travel on a highway as a regular dump truck would.
On this basis, J.P. Rojek acquitted Luymes of the charges for which the vehicle being a "self-propelled implement of husbandry" would be a defence.  However, one charge stuck:
With respect to charge number one, the vehicle was a motor vehicle when it was purchased by the defendant. The defendant did not apply for a permit on becoming an owner. This fact was not disputed by the defendant and found to be proven beyond reasonable doubt. Until the changes had been made to transforming it into the self-propelled implement of husbandry, the defendant was dealing with a motor vehicle and under section 11(2) of the Highway Traffic Act had the obligation to apply for the permit. Mr. Luymes did not do that. I am satisfied therefore that the Crown has proven it’s case with respect to count number one beyond reasonable doubt and in that case there is finding of guilt and conviction registered.
Read the decision at: R. v. Luymes.