R. v. Kirk, 2020 BCPC 280

Citation: R. v. Kirk 2020 BCPC 280 Date: 20201109 File No: AJ10460228 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic Court) REGINA v. MITCHELL ROBERT FREDERICK KIRK REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. BURGESS Appearing for the Crown: Cpl. Hare Counsel for the Accused: D. Griffith Place of Hearing: Kelowna , B.C. Date of Hearing: October 15, 2020 Date of Judgment: November 9, 2020 [ 1 ] Mr. Kirk is before the court on Violation Ticket AJ10460228, which is a 2 count Violation Ticket. Count 1 is an allegation of “Speed Against Highway Sign”, contrary to the Motor Vehicle Act s. 146(3) and count 2 is an allegation of “Fail to Display ‘N’” contrary

to the Motor Vehicle Act Regulation s. 30.10(4). [ 2 ] At the hearing the Disputant entered a not guilty plea to Count 1 and guilty to Count 2. [ 3 ] There were two witnesses, both on behalf of the Crown, Cpl. Hare and Cst. Bevan. On April 21, 2019 the two officers were involved in a call operation on Highway 97 at Duck Lake in Kelowna, BC. Cpl. Hare was on the west side of the highway recording speeds of north bound vehicles with a Pro Laser device. He is a qualified Laser operator. He had checked the device and determined it was working properly. [ 4 ] At 1459 hrs Cpl.

Hare used the Pro Laser to determine the speed of a Ford F150 pick-up. The laser reading of the speed of the vehicle was 124 km/h at a distance of 312.4 metres. Cpl. Hare’s evidence as to the speed limit was that the highway was a “…known 90 km/h zone”. He radioed ahead to Cst. Bevan. Cst. Bevan stopped the vehicle and issued the violation ticket to the driver, Mr. Kirk. [ 5 ] At the conclusion of the Crown’s evidence the Disputant made a no evidence motion on two points. 1. That there was no evidence of a highway speed sign and, 2. that Crown had not proven jurisdiction.

I advised counsel for the Disputant that both officers had given evidence as to the location within British Columbia and given the court list. I reserved on count 1. [ 6 ] The essential argument of the Disputant is that for a charge under s. 146(3), the Crown must prove the existence of a sign with the speed limit. The Crown argued that the evidence provided was that it was a known 90 km/h speed zone. [ 7 ] The Motor Vehicle Act section 146(3) states: Speed limits 146

(3) If the minister responsible for the administration of the Transportation Act has caused a sign to be erected or placed on a highway limiting the rate of speed of motor vehicles or a category of motor vehicles driven or operated on that portion of the highway, a person must not, when the sign is in place on the highway, drive or operate a vehicle on that portion of the highway at a greater rate of speed than that indicated on the sign for that category of motor vehicle. [ 8 ] The Disputant is correct, under s. 146(3), the Crown must prove that there was a posted sign stating the speed limit. As stated in R. v.

Botts 2006 BCSC 590 at para. 33 , “In s. 146(3) … the existence of a highway sign limiting the rate of speed is an essential element of the offence.” [ 9 ] In this case the Crown did not provide any evidence to any signs stating the speed limit and therefore has not proven one of the requisite elements it must prove. I therefore find the Disputant not guilty on Count 1. [ 10 ] Regarding Count 2, the fine will be the ticketed amount and the Disputant has to December 31, 2020 to make payment. ______________________ B. Burgess Judicial Justice