An E-Scooter With Pedals Under the Motor Assisted Cycle Test

The Dispute

A man bought an electric scooter with pedals, rode it for years, and treated it as a bicycle that needed no licence and no insurance. One morning a police officer watched him ride it to a transit station without once turning the pedals, and ticketed him for driving with no licence and no insurance. A conviction meant fines, and it meant the machine could not lawfully go back on the road unless it was registered and insured.

The Parties’ Positions

The rider contended that the machine was a motor assisted cycle under the Motor Vehicle Act, a class the Act then excluded from motor vehicles and so from the licence and insurance requirements in section 24. He relied on the specifications: an electric motor rated at 500 watts, a top speed of 32 kilometres an hour, and pedals chained to the rear wheel that could propel it by human power. On the regulation’s shut-off requirement, he identified the ignition switch as the separate mechanism that lets the driver turn the motor on and off from a normal seated position.

The Crown relied on the regulation’s minimum wheel diameter of 350 millimetres, which the machine’s twelve-inch wheels did not meet. It relied further on how the two systems worked: a freewheel let the motor drive the machine without moving the pedals, and the manual described the pedals as removable. On the meaning of the class, the Crown relied on R. v. Rei, where the court described human propulsion as essential to a motor assisted cycle, the motor supplementing it rather than supplanting it. The rider’s own evidence carried that argument: he acknowledged that he had never pedalled the machine in the years he had owned it, and that nothing required him to pedal before the motor would engage. The question was whether a device built to be ridden on the throttle belongs in that class, and so whether riding it is a Motor Vehicle Act offence.

The Court’s Decision

The Provincial Court of British Columbia held that the wheels fell below the regulated minimum, and that this alone put the machine outside the class. It held separately that the machine was in essence an electric scooter capable of being pedalled rather than a cycle assisted by electric propulsion, its primary mode of propulsion being the motor. The court convicted the rider on both counts, imposed a conditional discharge with one year of probation on the licence count, and reduced the insurance fine to the statutory minimum, accepting that he had ridden under a mistaken belief and was in financial difficulty. On appeal the Supreme Court of British Columbia found the evidence more than reasonably capable of supporting those conclusions and dismissed the appeal, which left the rider unable to use the machine on a highway without a driver’s licence and insurance.

Key Lessons for Riders and Sellers of Electric Scooters

• Verify every criterion in the regulation, not only the power and speed limits. The 500 watt rating and the 32 km/h ceiling are the figures a specification sheet advertises, and the minimum wheel diameter of 350 millimetres, which decided this case, still sits in the current Motor Assisted Cycle (E-Bike) Regulation.
• Treat the relationship between the pedals and the motor as part of the specification. A device whose pedals turn a freewheel while the motor drives the wheel independently may be characterized as an electric scooter capable of being pedalled, whatever the pedals suggest.
• Do not treat an insurer’s refusal to write coverage as proof that none is required. The rider had been told the machine could not be insured, and the courts upheld the convictions, since a device outside the class may still be insurable in another.
• Record the enquiry when a classification question is put to a regulator or an insurer. The trial court accepted the mistaken belief and reduced the penalty, but the belief did not answer the charge and his earlier enquiries were found insufficient.

The outcome of this matter turned on the specifications of the machine and on the evidence before the courts, and the regulation governing motor assisted cycles has since been replaced. A similar dispute may resolve differently.

ATAC LAW represents riders, drivers and owners on Motor Vehicle Act charges and on appeals from them.

This matter was conducted by Dan H. Griffith, a partner at ATAC LAW, who acted for the rider on the summary conviction appeal.