Why an electric skateboarder was given a retrial on a charge of riding without insurance

An electric skateboarder fined for driving without insurance has had the conviction overturned because the trial judge, who had been hit twice by skateboarders on sidewalks, showed a reasonable appearance of bias.

And in what may be a glimpse into future defences against these types of convictions, B.C.’s Superior Court said it did not need to hear the skateboarder’s argument about whether you can be ticketed for driving a skateboard without insurance because no insurance is available for it.

The bias of the judge was all that was required to allow the skateboarder’s appeal, B.C. Supreme Court ruled in R. v. Advincula, a decision released Wednesday.

The issue of bias came up in a similar case six months before, during R. v. Peng, the court noted. In that case, the same police officer issued a ticket to an electric skateboarder for riding without insurance.

Under B.C. law, electric kick scooters and motorized skateboards are considered ‘vehicles’ under the Highway Traffic Act, but they do not meet provincial equipment safety standards for on-road use. Motorized skateboards may only be operated where the Motor Vehicle Act doesn’t apply, such as on private property without public vehicle access, or on trails or pathways (if allowed by municipal bylaw).

Insurers do not issue insurance for motorized skateboards for those reasons.

In R. v. Peng, the same trial judge who later heard in R. v. Advincula recused himself because he admitted a personal bias.

In R. v. Peng, the trial judge “advised the parties that he had been hit twice by skateboarders while he was on sidewalks, and he said, ‘My mind is biased,’” B.C. Supreme Court Justice Douglas Thompson wrote in Wednesday’s decision.

“The [trial] justice related that the first collision caused a concussion resulting in persistent vertigo which in turn caused him to have to give up hiking, one of his passions.

“The [trial] justice said that four months later he was struck by another skateboarder and suffered multiple fractures, and was bedridden for months.

“He told Cst. Kim and Ms. Peng: ‘I may not be more open-minded than you would like a judge to be in order to hear your case so you may not want me to try your matter.’

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“Ms. Peng said: ‘But I have no choice, right?’ The [trial] justice said: ‘You have a choice. I have told you that I have a bias and it’s not good for you so I can put this – I can declare a mistrial, put this matter over before another colleague. Maybe they’ll give you [a] fairer hearing. Okay?’

“Ms. Peng said ‘Yes.’”

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Fast forward to R. v. Advincula. Constable Kim saw the similarity of circumstances with R v. Peng and told the trial judge: “I just wanted to advise you that this matter is in regards to the type of electric device. So I don’t know if you’d like to hear this matter or to…”

To which the trial judge intervened. “Yes, I will hear the [case].”

The trial judge went on to say that “case law is quite substantial in this area. If someone was driving that device and it’s proven in court and there was no insurance, you’ll be convicted.”

He ultimately convicted Michael Justin Advincula and ordered him to pay a $568 fine.

B.C.’s Superior Court found the trial judge should have told Advincula why the constable had asked him if he was going to hear the case. Advincula should have been advised of the trial judge’s bias and given the opportunity to have a different judge try the case, Thompson ruled.

“In my respectful opinion, it was necessary at that time for the judicial justice to acquaint the appellant with the issue raised by Cst. Kim so the appellant could consider his position and, if he was inclined to do so, make a submission about recusal on the basis of reasonable apprehension of bias,” Thompson wrote.

“Having considered the matter, I think the judicial justice erred more seriously than falling short of best practices: fairness dictated that the appellant not be left in the dark on what Cst. Kim recognized was a subject important enough to raise with the presider. The appellant was deprived of the right to be heard on this significant issue.”

Thompson overturned the conviction and ordered a retrial.

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.