R. v. Alderson, 2022 BCPC 180

Citation: R. v. Alderson 2022 BCPC 180 Date: 20220812 File Nos: 42858-1; AJ13163770-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON TYLER ALDERSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: J. Petty Appearing on his own behalf: J. Alderson Place of Hearing: Campbell River , B.C. Date of Hearing: June 2, 2022 Date of Judgment: August 12, 2022 Introduction: [ 1 ] Mr. Alderson is charged with the following offences: a. Driving a motor vehicle on a highway without reasonable consideration for other persons using the highway, contrary to s. 144 (1) (

b) of the Motor Vehicle Act ; b. Failing to produce his driver’s licence for inspection on demand of a peace officer, contrary to s. 33 (1) (

b) of the Motor Vehicle Act ; and

c. Willful obstruction of Cst. Beauregard, a peace officer, in the execution of her duty, contrary to s. 129 (

a) of the Criminal Code . [ 2 ] The charges arise from events on or about February 22, 2021 in Campbell River, BC. By way of background, these offences were ordered joined and tried together pursuant to s. 62 of the Offence Act , R.S.B.C. 1996, c. 338 . [ 3 ] At the material times, Mr. Alderson was the driver of a white van. [ 4 ] Crown has the obligation to prove the elements of these offences beyond a reasonable doubt. The Motor Vehicle Act offences are regulatory in nature and Crown need not establish mens rea .

Rather, once the act (the actus reus ) is established to the requisite standard, the offence is proven. The Criminal Code offence requires that Crown also establish mens rea , that Mr. Alderson intentionally, that is wilfully, obstructed Cst. Beauregard. [ 5 ] The relevant sections of the Motor Vehicle Act ( MVA ), R.S.B.C. 1996, c. 318 that are applicable in this case state the following: Production of licence and liability card, duplicates 33

(1) Every person, except (

a) a person driving or operating a motor vehicle exempted under section 2 (5) or

section 8 or 10, or (

b) a person driving or operating a motor vehicle of a fire department of a municipality, must have his or her driver's licence and driver's certificate and a motor vehicle liability insurance card or financial responsibility card, issued for the motor vehicle he or she is driving or operating, in his or her possession at all times while driving or operating that motor vehicle on a highway, and must produce the licence, certificate and card for inspection on demand of a peace officer. [ 6 ] The Offence Act , R.S.B.C. 1996, c. 338 applies to the s. 33 (1) MVA offence by virtue of s. 3 which provides that unless otherwise provided by law, this Act applies to proceedings in respect of offences and s. 5 which states: General offence 5 A person who contravenes an enactment by doing

an act that it forbids, or omitting to do

an act that it requires to be done, commits an offence against the enactment. [ 7 ]

Section 144 of the MVA expressly incorporates the Offence Act and states: Careless driving prohibited 144

(1) A person must not drive a motor vehicle on a highway … (

b) without reasonable consideration for other persons using the highway, and

(2) A person who contravenes subsection (1) (

a) or (

b) is liable on conviction to a fine of not less than $100 and, subject to this minimum fine,

section 4 of the Offence Act applies. [ 8 ] The relevant sections of the Criminal Code applicable in this case state the following: Offences relating to public or peace officer 129 Every one who resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, is guilty of … (

e) an offence punishable on

summary conviction. The Evidence: [ 9 ] I heard evidence from Mr. Michael Brown, Ms. Jordan Jubinville, Cst. Beauregard and Sgt. Johnson. As is his right, Mr. Alderson did not testify. [ 10 ] Mr. Brown is employed as a miner and previously worked in traffic control. Based on the evidence before me, I accept and conclude that on the day in question, Mr. Brown was driving his 2000 Cadillac Escalade. His girlfriend, Ms. Jubinville, was in the front passenger seat. Mr. Brown was reversing from a residential parking lot onto Leishman Road.

Leishman Road is a dead end road with a roundabout at the top end. [ 11 ] As he backed up, he looked over his right shoulder and as he was about to “go onto the road”, he saw a white van approaching from behind. Mr. Brown stopped his vehicle and the white van drove by his left side. In Mr. Brown’s words, he stopped so that he “didn’t get clipped”. He did not see the white van before he began to back up and agreed that there were parked vehicles on both sides of

the road. He was not asked if those parked vehicles may have impeded his view of oncoming traffic. He agreed in cross examination that the van “came through [his] field of vision when [he] was about to go onto the road” and that the white van was 2 or 3 feet away. [ 12 ] He also described that the white van was approaching at a high rate of speed. I understand him to mean that he felt it was a high rate of speed for that particular area because his elderly father lives and walks in the area and, in addition, there is a nearby day-care facility for children.

He testified that he believed there was no posted speed limit on this street and, although he thought it was supposed to be 50 km/h, he would not drive the speed limit in that area. His evidence is that the white van was not exceeding the speed limit. He testified that the only observation he made about the way the white van was being driven during the entire encounter was its speed on Leishman Road. [ 13 ] The white van drove by Mr. Brown and stopped at the top of Leishman Road. Mr.

Brown drove forward, stopped somewhere in the vicinity of the white van, rolled down the passenger window and told the driver that he should drive more slowly in that area. Mr. Brown was asked if he was confrontational and he replied that he was “as calm as I could” and that he “tried to stay as calm as possible”. He did not remember what the driver of the white van said but that he was confrontational. [ 14 ] Ms. Jubinville works as a flagger in traffic control. She testified that as they were backing out, she saw a white van approaching “quite fast” and she told Mr. Brown to stop.

When asked if the driver of the white van swerved, she replied “around us”. In cross examination, Ms. Jubinville said that the van “came out of nowhere”. She could not estimate its speed. She agreed that after the white van parked, she and Mr. Brown drove up to confront him. [ 15 ] After the white van passed them, they drove up to where the van was stopped and that Mr. Brown said something to the driver. She described that Mr. Brown was “very calm” when he spoke to the other driver although she also testified that she heard raised voices.

It appeared to her that the white van was a delivery van commonly seen in the City delivering parcels for Amazon. She stepped out of the Escalade because she wanted to take a video recording of the licence plate and truck number. She testified that the driver of the white van became aggressive and started to record her as well. [ 16 ] Ms. Jubinville also took a video recording of part of this encounter. I observed and listened to it again. Ms. Jubinville can be heard saying “next time it could be a kid - you smoother”. I conclude from her evidence and tone of voice that Ms.

Jubinville was angry with the other driver. Mr. Brown did not say he was “very calm” only that he was as calm as he “could be”. In my view, there was a confrontation between and involving all three individuals at Leishman Road. [ 17 ] The interaction was brief – about 1 to 1 1/2 minutes. [ 18 ] After the confrontation, Mr. Brown left and drove to a parking lot on Merecroft, which he estimated was about 4 or 5 minutes away. He used the washroom facilities there and when he returned to his vehicle, noticed, for the first time, that the white van had followed them there. Prior to that, nothing unusual had happened.

He described that the driver of the white van came up to his vehicle, raised his voice and appeared to be giving them a hard time because Mr. Brown had “let him know he was speeding”. Mr. Brown remained in his vehicle and Ms. Jubinville called the police. He does not recall what he said to the driver of the van. [ 19 ] Ms. Jubinville’s account is different in some aspects. According to her, she could see the white van following them the entire way from Leishman Road to the parking lot off Merecroft Road. This lasted about one minute. She testified that the white van followed them “very closely”.

When asked to elaborate, she said that at one point she thought it was not safe for the white van to “follow through” when Mr. Brown stopped at a four way stop sign. When asked how close the white van followed, her reply was that at one point she could not see his licence plate or half of his light, but that was when it was stopped.

While moving, there was at least a car length in between them. [ 20 ] Her evidence is that she called the police while Mr .Brown was driving to the parking lot off Merecroft because the actions of the driver of the white van “didn’t sit right with (my) flagging instincts ... how close … he was following us…[I] felt something was off …”. In cross examination, Ms. Jubinville testified that she previously reported someone for poor driving. She agreed that Mr. Alderson was not speeding or doing stunts. [ 21 ] Once Mr. Brown and Ms.

Jubinville arrived at the parking lot, and while on the phone with the police, she saw Mr. Alderson go around his van and do something in the back of the van which she called “random things” and said she was not paying much attention. She recorded part of the interaction. In the video, Mr. Alderson is seen driving the van and appears to be leaving the parking lot. He is behind the Brown vehicle in the parking lot, some distance away. He is not in an adjacent parking stall. When Ms. Jubinville told him that she called the police, Mr. Alderson stated that he “had better stay”. I also heard Mr. Brown tell Mr.

Alderson that he should “go do (his) job”. It was in an angry tone of voice. [ 22 ] Cst. Beauregard responded to the call from dispatch that there was a potential incident involving a driving and “road rage” incident and the people involved were in the parking lot off Merecroft Road. She was in uniform and in a marked police vehicle. She understood that two people were reportedly “shaken up” by the actions of another driver. She saw the white van that had been reported to be involved and she walked directly over to it. A man, later identified as Mr.

Alderson, was sitting in the front driver seat with packages on the front passenger seat. He initially would not roll down his window when she attempted to engage in a conversation and identify him. He refused to answer her and stared straight ahead, and was essentially ignoring her. He eventually lowered his window by about 3 inches. Cst. Beauregard does not recall if the engine was running but believed it was turned off. [ 23 ] She requested that he produce his driver’s licence. He refused to do so. She informed him that he was required, under the MVA , to produce his licence, and he still refused to do so.

He replied that he was not required to do so because he was not driving. She explained to Mr. Alderson that she was investigating a complaint about his driving and that he had a duty to identify himself while she conducted her investigation. She also warned him that he could be at risk of arrest for obstruction of a peace officer if he refused to provide his driver licence. Mr. Alderson still refused to provide his driver’s licence. [ 24 ] Cst. Beauregard testified that at the time she was speaking with Mr.

Alderson, she was investigating a traffic complaint related to driving as well as a “borderline road rage” situation. She explained to him that she was investigating a complaint about his driving. She

asked for his driver’s licence because she needed to identify him so she knew who she was dealing with and fully investigate the matter. She recalled that at one point he asked for her supervisor. In cross examination she testified that when she arrived at the parking lot she was not intending to arrest him and that he was not in the process of committing a crime when she arrived. Rather, she believed that the driver may have operated the van in a manner that caused concern for two other people. [ 25 ] Cst. Beauregard called the watch commander, Sgt. Johnson, for back up. While waiting, she saw Mr.

Alderson get out of his van, return a short while later and get back inside. When he got out of the van again, she approached him, intending to arrest him for obstruction. When she placed her hand on his arm, he essentially pulled away, leaving the area again in a manner she described as a purposeful and aggressive walk. He returned after several minutes and she attempted again to arrest him for obstruction. Again, when she put her hands on his arm, he pulled away and left the parking lot. [ 26 ] She returned to her police vehicle and contacted Sgt. Johnson again. While still awaiting her back up, she saw Mr.

Alderson return from the parking lot and tried, a third time, to arrest him. He walked away. By this time, Sgt. Johnson had arrived in the vicinity and based on Cst. Beauregard’s description, was able to locate Mr. Alderson who was still on foot walking on Birch Street. He stopped his police vehicle, stepped in front of Mr. Alderson and told him to stop and that he was under arrest. He described Mr. Alderson as agitated, upset and saying that he was not under arrest. He refused to provide his name. However, once placed in the vehicle, and after a conversation with Cst.

Beauregard, he provided his name. [ 27 ] At the detachment, he was cooperative and was released after being charged with the current offences. Discussion: Driving without Reasonable Consideration [ 28 ] The test for driving without reasonable consideration was helpfully discussed in R. v. Malcolm , 2015 BCSC 306 : [21] The true test of driving without reasonable consideration was articulated by the Honourable Judge Hoy in R. v. Joe [1994] B.C.J. No. 2017 . There, the learned judge said: The test, in my view, is contained in the words of the

section itself. Thus, is the driving done without consideration of the conditions and use of the roadway by others, in such circumstances where a reasonably prudent driver ought to have been aware of the potential dangers posed or created? [22] This test does not require that an accused motorist be liable for one or more violations of the Act .

It simply requires that the evidence show that given the circumstances of the time and place the accused, as a reasonably prudent driver, ought to have been aware that his driving exposed other users of the highway to potential danger. [23] This is an objective test. [ 29 ] In Malcom , Justice Rogers upheld the decision of a Judicial Justice who found that the accused drove his vehicle at speeds significantly greater than the speed limit, between 95 - 100 km/h in an 80 km/h zone; followed another vehicle within one to two car lengths at an excessive speed, accelerated into another lane while reaching speeds greater than 100 km/h and came within one or two car lengths of another vehicle in front of it for some time.

The vehicle moved into another lane again and repeated the same behaviour. The accused’s speed varied from 90 to 113 km/h and occurred over several kilometres. [ 30 ] Crown asserts that it has established beyond a reasonable doubt that Mr. Alderson created a situation of potential danger for other users of the highway by aggressively following Mr. Brown and Ms. Jubinville from Leishman Road to the parking lot at Merecroft Road. Crown says that after a heated confrontation, Mr. Alderson made a wilful decision to follow them from one location to another and that Mr. Alderson was following closely.

I agree that Crown does not need to establish a violation of the MVA . [ 31 ] The challenge the Crown has is the lack of evidence to support a conclusion, beyond a reasonable doubt that Mr. Alderson’s driving created a potential danger to other users of the highway. While evidence that Mr. Alderson was speeding is not necessary to establish this offence, there must be some evidence that, examined objectively, would allow me to conclude that Mr. Alderson’s manner of driving created potential danger.

It could include speeding, following too closely, cutting into traffic unsafely, making unsafe lane changes, and the like. In this case, the only evidence is that at one point when the two vehicles were stopped, the van was close enough that Ms. Jubinville could not see the entire licence plate or front headlight and, when moving, they were at least one car length apart. That could mean that at times, there was a greater distance that one car length. [ 32 ] I have also considered the evidence from Mr. Brown and Ms. Jubinville about the manner of driving on Leishman Road.

They did not see the white van before starting to back up onto the roadway and could not estimate its speed. There were cars parked on either side of the roadway that may have impeded Mr. Brown’s ability to see oncoming traffic as he was reversing. I am simply unable to reach any conclusions about Mr. Alderson’s manner of driving on Leishman Road. [ 33 ] The thrust of the Crown submission is that Mr. Alderson responded aggressively towards Mr. Brown and Ms. Jubinville by following them from Leishman Road to the parking lot at Merecroft Road and in a manner that created potential danger.

The evidence establishes that Mr. Alderson left and returned to his van a number of times. Ms. Jubinville believed that he was delivering packages for Amazon. Cst. Beauregard saw a number of packages sitting on the front passenger seat. I do not know if Mr. Alderson was delivering packages to addresses at that location and that was the reason he drove to the parking lot at Merecroft. It is a reasonable assumption that he was, in fact, delivering packages when he walked away from Cst.

Beauregard. [ 34 ] While in the right case, there may be enough evidence involving a “road rage” incident to establish an offence under this section, there is simply not enough evidence before me that would allow me to conclude, beyond a reasonable doubt, that Mr. Alderson’s manner of driving on Leishman Road or the fact that he drove to the parking lot on Merecroft Road, or his manner of driving when he did so, created a real or potential danger to others.

[35] Mr. Alderson is acquitted of this charge. Fail to Produce a Driver’s Licence [36] Section 33 (1)(

a) of the MVA requires every person to have his driver’s licence, and insurance “card”, in their possession at alltimes while driving or operating a motor vehicle and, in addition, the driver must produce that driver’s licence for inspection when ademand is made by a peace officer. [37] Mr. Alderson refused to provide his driver’s licence when Cst. Beauregard asked for it. [38] Whether or not Mr. Alderson felt he was right to refuse to provide his licence upon demand is irrelevant.

If an individual who isdriving or operating a motor vehicle is asked to produce his driver’s licence by a peace officer, he must do so in accordance with thatlegislation. Mr. Alderson asserts that he was not driving or operating his vehicle because the engine was turned off and he was not sittingin the driver’s seat. Therefore, he says he was under no obligation to identify himself or produce his driver’s licence. [39] The evidence establishes that when Cst. Beauregard requested the driver’s licence, Mr. Alderson was sitting in the driver’s seatof his vehicle. [40] Cst. Beauregard was entitled to have Mr.

Alderson’s driver’s licence provided to her upon her request. The statute is clear thatupon demand, a driver must produce their driver’s licence to a peace officer pursuant to s. 33 (1) of the MVA. I do not accept that theperson must be in the vehicle while the engine is running or sitting in the driver’s seat. Were it otherwise, the obligation to provide thisbasic information to a peace officer could be completely thwarted by a person simply by turning off the engine and/or leaving thevehicle. Neither does the peace officer, in my view, need to have actually observed the vehicle being driven to make the demand.

Thelanguage of the statute does not make the obligation of a driver contingent on being seen driving by a peace officer. There should besome temporal or other connection between the driving or operating of the vehicle and the demand to produce the licence, otherwise, apolice officer could ask any individual, at any time, to produce his or her driver’s licence. In this case, Cst. Beauregard was investigatinga traffic complaint made about Mr. Alderson’s manner of driving and Mr. Alderson was required to comply with her demand. [41] This is public welfare legislation designed for the protection of the public.

It confers an obligation on those driving a motorvehicle to produce their driver’s licence and insurance and promotes public safety by ensuring all drivers have a proper licence and areinsured against liability. It also assists a peace officer who is investigating a potential violation of the MVA. The Crown is only requiredto establish the actus reus, the failure to provide the driver’s licence. I am satisfied, beyond a reasonable doubt, that Mr. Alderson hadbeen driving the white van not long before Cst. Beauregard arrived.

He was sitting in the driver’s seat when she requested that heproduce his driver’s licence. He refused to do so a number of times although he was obliged to do so. [42] Crown has established beyond a reasonable doubt that Mr. Alderson failed to comply with s. 33 (1) of the MVA. I find him guiltyof that offence. Wilful Obstruction of Cst. Beauregard [43] I have concluded that Mr. Alderson committed an infraction of s. 33 (1) of the MVA by refusing to provide his driver’s licence toCst. Beauregard when requested to do so. Crown also asserts that Mr. Alderson was also obligated to provide his name and address toCst.

Beauregard under the provisions of s. 73 (2) of the MVA which states: 73 Failing to stop and state name

(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must statecorrectly his or her name and address and the name and address of the owner of the motor vehicle.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. [44] This legislation imposes two obligations on the driver of a motor vehicle: the first to stop when requested to do so by a peaceofficer and, second, to provide the driver’s and owner’s name and address. [45] This

section and how it relates to the offence of obstruction of a peace officer was considered in R. v. Moore (SCC), [1978] S.C.J. No. 82. It involved a cyclist who was seen by a police officer riding through a red light at an intersection. Theofficer told him to stop and identify himself but Mr. Moore refused to do either. He was charged with obstruction. The court consideredthe duty of an individual in these circumstances to identify themselves. In upholding the conviction, of paramount importance in thatcase was that the police officer had observed Mr.

Moore commit the offence (going through a red light) which then engaged the officer’sduty under s. 450 of the Criminal Code: “to attempt to identify the wrongdoer, and the failure to identify himself by the wrongdoer did constitute an obstruction of the policeofficer in the performance of his duties.” (para. 20). [46] Because Mr.

Moore was operating a bicycle and not a motor vehicle, his actions did not involve a failure to comply with s. 58 (b)of the MVA provisions in force at the time (now s. 73 (2) of the MVA) that required a person driving or operating a motor vehicle toprovide his name and address when requested by a peace officer. Rather, the authority and power to arrest Mr. Moore sprang from s. 450of the Criminal Code which allows a police officer to arrest a person if necessary to establish their identity for the purpose of issuing aviolation ticket.

A violation ticket can be issued for an offence against the MVA or the Offence Act. [47] The general principles relevant to the case before me were helpfully summarized in Moore at para. 25 (Dickson J, dissenting onthe appeal but not on this point):

Any duty to identify oneself must be found in either common law or statute, quite apart from the duties of the police. A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless there is a legal duty to act. Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute: 11 Hals. (4th ed.) p. 15. This idea was expressed by Mr. Justice Schroeder in Regina v.

Patrick [3] , at p. 343: Counsel for the appellant submitted that to sustain a charge of obstructing a peace officer in the execution of his duty, it was necessary for the Crown to prove either a positive act of interference, or a refusal to perform some act required to be done by a statute…It not having been shown that the appellant was under any duty or obligation to communicate to the peace officer the information required of him under the provisions of either s. 221(2) of the Criminal Code , or s. 110(1) of The Highway Traffic Act, the Crown has failed to bring home to the appellant the commission of a criminal offence.

This is sufficient to dispose of the appeal. [ 48 ] As was stated at para. 21 in Moore : … the refusal of a citizen to identify himself under such circumstances causes a major inconvenience and obstruction to the police in carrying out their proper duties. So that if anyone were engaged in any balancing of interest, there could be no doubt that the conclusion to which I have come would be that supported by the overwhelming public interest. [ 49 ] Crown asserts that Mr. Alderson also had a duty to provide his name and address to Cst. Beauregard pursuant to s. 73 (2) of the MVA .

I did not receive submissions on the

interpretation of s. 73 (1) and (2) and whether it applies in a situation where a vehicle is already stopped when approached by a peace officer as is the situation here. This engages principles of statutory

interpretation and I was not provided with case authority to assist in determining if Mr. Alderson was obligated to comply under this provision. However, it is not necessary to my decision to address this issue and I will leave it to be argued more fully in another case. [ 50 ] I have concluded that Mr. Alderson had a statutory duty to provide his driver’s licence to Cst. Beauregard pursuant to s. 33 (1) of the MVA . [ 51 ] He refused a number of times. He was warned that he could be charged with obstruction if he failed to provide his licence but continued to maintain his refusal. When he was told by Cst.

Beauregard he was under arrest for obstruction, twice, he ignored her, refused to cooperate, and left the scene on three occasions. I am satisfied beyond a reasonable doubt that his actions were wilful, purposeful and clearly intended to prevent Cst. Beauregard from performing the duties she was authorized to carry out under the MVA . [ 52 ] I find Mr. Alderson obstructed Cst. Beauregard in the execution of her duty contrary to s. 129 (

a) of the Criminal Code and is guilty as charged. Conclusion: [ 53 ] Mr. Alderson is guilty of the charge under s. 33 (1) of the MVA for failing to produce his driver’s licence and under s. 129 (

a) of the Criminal Code for obstructing Cst. Beauregard, a peace officer, in the execution of her duty. [ 54 ] He is acquitted of the charge that he was driving without reasonable consideration for other persons, contrary to s. 144 (1) (

b) of the Motor Vehicle Act . ____________________________ The Honourable B. Flewelling Provincial Court Judge