The Mythical Inoperable Tractor

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

This month’s article doesn’t have much to do with farming, but I couldn’t pass on the opportunity to share a farming-related analogy at the centre of a recent impaired driving case.  A “mythical inoperable tractor” served as the basis for the initially (but not ultimately) successful defence of the charge. 

The facts of the case are simple.  A driver was involved in a single motor vehicle accident in the early morning hours one day in December, 2019 in the City of Toronto.  The sound of the accident had been overheard by a witness who happened to be walking home at the time. When that witness arrived at the scene, he found a vehicle stationed under a streetlight and off the travelled portion of the road and noted that the vehicle was not running and had its four-way flashers engaged.  There was a man behind the wheel of the vehicle and there was a female present outside the vehicle.  The witness did not see the accident and there were no other witnesses who had seen any accident. 

The man in the driver’s seat was arrested for impaired operation of a motor vehicle on the basis of two breath samples showing his blood alcohol over the legal limit.  At his trial in June, 2022, the accused did not call any evidence or testify in his own defence.  Instead, he relied on an expert report that was entered into evidence with the consent of the Crown.  The expert report confirmed that the accused’s vehicle was completely inoperable at the time it was discovered and was immobile.

The accused was acquitted at trial.  The trial judge accepted that the vehicle was inoperable and immobile when the accused was found sitting in the driver’s seat with a blood alcohol level above the legal limit.  There had been an accident, but it was not proven beyond a reasonable doubt that the accused was driving the vehicle at the time of the accident.  The accused was found sitting in the driver’s seat and could be found to have had the “care and control” of a “conveyance” necessary to support a conviction for impaired driving.  However, the trial judge ruled that “care and control” of a “conveyance” had not been proven beyond a reasonable doubt in spite of the following presumption set out at Section 320.35 of the Criminal Code: “In proceedings in respect of an offence under s. 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat of position for the purpose of setting the conveyance in motion.”

The trial judge likened the situation to that of the “mythical inoperable tractor” found in the middle of a farmer’s field: could an individual seen drinking alcohol in a rusted-out old tractor with no windows or tires be convicted of impaired driving?  Would it not be unreasonable to convict where there was no realistic or even speculative risk of danger and no evidence of intent to put the tractor in motion?  The trial judge accepted that where it had been proven that a vehicle was inoperable and immobile and posed no apparent danger to the public, and there was no evidence of an intent on the part of the accused to drive the vehicle, the presumption in Section 320.35 of the Criminal Code did not provide the “care and control” of a “conveyance” necessary for a conviction.

The acquittal of the accused was appealed by the Crown to the Superior Court of Justice.  On appeal, the acquittal was overturned and the matter remitted to the Ontario Court of Justice for a new trial.  Although the appellate judge saw some “appeal” to the accused’s argument (and the trial judge’s reasoning) about the “mythical inoperable tractor”, the judge found nothing in the language of Section 320.35 of the Criminal Code that suggests that the presumption of “care and control” can be rebutted simply by establishing that a vehicle was inoperable and posed no risk to public safety.  The definition of “motor vehicle” in the Criminal Code does not exclude an inoperable vehicle.  If Parliament wished to make such an exclusion, it could through an amendment to the Code. 

What the trial judge got wrong in his decision was that there was an onus on the accused to show that he was not sitting in the driver’s seat “for the purpose of setting the conveyance in motion.”  It was not for the Crown to prove the intention; it was for the accused to prove the absence of an intention to drive the vehicle.  As the accused called no evidence at trial (save for the expert report that went in on consent), there was no evidence of an absence of intention.  The “mythical inoperable tractor” got the accused part way in rebutting the presumption of “care and control” of a “conveyance”, but not far enough.

Read the decision at: 2024 CanLII 24885 (ON SC).

Court declines to require farmer to forfeit tractor over driving convictions

The Crown brought an application seeking forfeiture of a leased New Holland Tractor and Loader after the lessee was convicted of two counts of driving while disqualified under the Criminal Code.  One of the offences occurred when the lessee was observed by the OPP operating the tractor in question on a roadway.  The lessee was stopped for suspicion of alcohol consumption and because the OPP officer was aware that the lessee's driver's licence was subject to a prohibition order.  The lessee failed a breathylzer test, but before he could be arrested, he ran into a nearby bush.  He was ultimately caught.

 

At Court, all parties conceded that the tractor was "offence related property" and could be subject to forfeiture to the Crown as part of the penalty against the offender.  The father of the lessee participated in the hearing on the basis that he held an interest in the tractor, having been a partner of the lessee in a farming operation and a contributor to the down payment on the lease.  The leasing company also participated, but did not take a position on the assurance that its interest in the tractor would be protected by the Crown in the event of a forfeiture.

 

On review of the evidence, the Court determined that the forfeiture of the tractor would be disproportionate in relationship to the "offence related property".  The Court said: "The item in question is an essential component of the operation of this family farm and is relied upon by [the offender's father] and his family in addition to the offender to perform all essential farming operations.  Since the seizure of this equipment, this farming operation ... has sustained a serious economic detriment.  A forfeiture of essential farming equipment will detrimentally affect, not just the offender, but the viability of this farm.  I cannot agree that a punitive impact of forfeiture on a legitimate enterprise such as farming was the intention of Parliament as being necessary in the public interest."

 

The Court also found that the farm tractor and its operation in the offence has no logical connection to the offence of driving while disqualified. 

 

The Application for Forfeiture was dismissed.

Read the decision at: R. v. Pendleton.

Court of Appeal upholds conviction for dangerous tractor driving

The appellant in this case before the Ontario Court of Appeal was convicted of dangerous operation of a motor vehicle (in this case, a tractor) under the Criminal Code.  The evidence at trial included the following:

• the appellant was driving a tractor at 30-35 kilometers per hour along a rutted gravel and dirt road, causing the tractor to bounce along the road;

• the appellant was driving in a deliberate manner, and appeared determined to return to his property, heedless of those who were in his path or were attempting to stop him;

• without slowing, the appellant drove the tractor through a narrow opening between two trailers, one of which was moving, barely missing both;

• the appellant drove toward a police constable, ignored his motions and shouts to stop, and drove within a few of meters of his vehicle before making an evasive manoeuvre to avoid it;

• he continued along the road at top speed toward another police constable, who feared for his own safety, to the extent that he nearly drew his own service revolver, before the appellant abruptly veered away at the last minute to avoid striking him;

• he drove up onto the narrow berm, adjacent to and above a third police constable in his cruiser, putting the officer in fear for his own safety, before the tractor did in fact roll off the berm; and

• the evidence of several witnesses, including the officers, who testified that the appellant’s driving caused them to fear for their own safety.

 

The Court of Appeal granted the appellant leave to appeal the decision from a summary conviction appeal judge because the appellant had been self-represented for that appeal (and may have misunderstood the procedure).  The appellant argued to the Court of Appeal that the trial judge was wrong to find that the appellant had the required mental element or intent (mens rea) for the offence charged.  He argued that the determination of the mens rea element required a determination of whether the manner of driving was a "marked departure" from the standard of care.  The appellant submitted that a lay person, lacking specialized knowledge of the operation of a tractor, is not able to appreciate the risks of operating a tractor in the circumstances or the measures a reasonable person would take to avoid them.  This, he said, would call for expert evidence.

 

The Court of Appeal disagreed.  It found that the risks of the appellant's driving and the means of avoiding those risks were "plain and obvious" and did not call for expert evidence: "While there may be cases in which expert evidence is required to establish the standard of care in the operation of a tractor and whether the accused's driving was a marked departure from that standard, this case is not one of them."  The appeal was dismissed.

 

Read the decision at: R. v. Clare.

Caveat Emptor - 1978 John Deere 1830 "in very good condition"

In September 2008, the Defendant had advertised for sale in the Western Producer a 1978, 1830 John Deere tractor, indicating, among other things that it was in very good condition. The Plaintiff contacted the Defendant by telephone, who confirmed that it was in good condition. The parties arranged for the Plaintiff to attend at the Defendant’s place to examine the tractor. Having done so, the parties negotiated a sale of the tractor, on September 29, 2008, for the sum of $8,800.00. No written contract or bill of sale was signed by the parties.

In a civil action in the Provincial Court of Saskatchewan, the Plaintiff claimed that between the date of purchase and when these proceedings were commenced, roughly twenty-one months later, the tractor had very light service. In the interim, however, the Plaintiff had been required to spend $593.53 on the hydraulic cylinders. As well, in the spring of 2010, the tractor had been examined by a mechanic who confirmed that the rear of the engine block was cracked, and had been re-welded. As well there was a hole in the side of the engine block that had been patched by pieces of metal and covered up with silicone. Further, the steering mechanism was such that it was too dangerous to drive.

Therefore the Plaintiff claimed that the Defendant had engaged in misrepresentation of the mechanical condition of the tractor at the material time. He sought recission of the contract (cancellation), with a return to him of the purchase price and related expenses.

The Plaintiff, however, was unable to prove that the Defendant had misrepresented the state of the tractor at the time of purchase.  The Plaintiff did not call the mechanic who had examined the tractor as a witness.  On that basis, the Court declined to rescind the contract and found that the principle of caveat emptor (buyer beware) also applied.

Read the decision at: Suwinski v. Wiebe.

See photos from this year's Heritage Show Classic Tractor Pull in Ilderton!

Click here to view photos: Heritage Show Photos Page.

Saskatchewan farmer loses court case over front-end loader problems

The Provincial Court of Saskatchewan has dismissed a claim by Garry Beutler related to his purchase of a front-end loader purchased from Leon's Manufactuing Company Inc.  Beutler had the loader installed on his Case 2294 tractor and planned to use the loader to move large round bales.  He experienced "operational difficulties" with the unit.  Following some repairs by the dealer, he told the manufacturer that he wanted his money back.

Beutler claimed from the manufacturer the cost of the loader he had purchased plus the cost of a new Versatile 276 bi-directional tractor he purchased to replace the loader.  The Court found that Beutler was not entitled to recover any damages from the defendant.  The judge found that Beutler's use of the front-end loader he had purchased exceeded the use for which it was designed.  The manufacturer's position was that the loader was appropriate for moving one single bale at a time.  The judge rejected Beutler's comparison of the front-end loader's performance with that of the new Versatile machine he had purchased:

In my opinion, the Plaintiff used this FEL for a function that it was clearly not designed to perform in an effort to save himself both time and money. The Defendant at all times tried to make the Plaintiff happy with his purchase and demonstrated to him the proper use of the FEL. If the Plaintiff insists on using an implement in a fashion for which it is clearly not designed, it is difficult to see how the Defendant can be liable in contract. The Plaintiff called Mr. Edwards to indicate that in his opinion, the Plaintiff operated the FEL properly. The evidence on this point is not particularly useful as the Plaintiff would often be using the FEL where it could not be observed by Mr. Edwards and I do not accept that Mr. Edwards would have authorized the use of this particular FEL in lifting two bales vertically or even one bale vertically. The design speaks for itself.

Read the decision at: Beutler v. Leon's Manufacturing Company Inc.

Tractors on the lawn okay... just not in the city

Last December, Helene and David How of Saskatoon lost their appeal of convictions of violating Saskatoon city by-laws prohibiting the repair and storage of vehicles on their urban property. The vehicles in question were restored tractors. They had carried on the hobby of restoring and displaying the tractors while living on their farm outside the city, and when they moved into Saskatoon they continued with the hobby. Both the trial judge and the judge on appeal dismissed the idea that the repair and storage were permissible because they were done in the context of a "hobby". If that were the case, they concluded, then one person would be permitted to repair and store tractor-trailer units on a property as a hobby, while a neighbour would be prohibited from the same activity because it was done to make a living.

Read the decision at: http://www.canlii.org/en/sk/skqb/doc/2009/2009skqb490/2009skqb490.html