R. v. Catcheside, 2018 BCPC 259

Citation: R. v. Catcheside 2018 BCPC 259 Date: 20180308 Registry: Williams Lake File No: 17840-1, 20198-1 (Williams Lake), 84148-3 (Kamloops) IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD LESLIE EGERTON CATCHESIDE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. D. WHYTE Counsel for the Crown: P. Konge Counsel for the Defendant: C. Los Place of Hearing: Williams Lake , B.C.

Date of Hearing: March 8, 2018 Date of Judgment: March 8, 2018 [ 1 ] Richard Catcheside has applied to this court pursuant to s. 98(5) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318, for a review of the length of three concurrent court-imposed driving prohibitions with which he is currently bound. He seeks that these prohibitions be cancelled.

The three prohibitions were imposed pursuant to s. 98 of the Motor Vehicle Act as follows: Court File 17840-1, Clinton Registry, a 30-year prohibition imposed April 10th, 1995; Court File 20198-T/6165, Williams Lake Registry, a 40-year prohibition imposed July 23rd, 1997; and Court File 84158-2-TC, Kamloops Registry, a lifetime prohibition imposed February 1st, 2008. [ 2 ] In support of his application, Mr. Catcheside tendered an affidavit affirmed on September 30, 2017, and filed in this court on December 18th, 2017. Several other documents were provided to the court by Mr. Catcheside as follows: 1.

A letter dated March 7, 2018, addressed, "To Whom It May Concern," from Clarence William [phonetic], bookkeeper/admin of Tsi Del Del Enterprises Limited; 2. A January 10, 2018, email from Christopher Beneteau, legal counsel, corporate law department of the Insurance Corporation of British Columbia, that email sent to Mr. Los, Mr. Catcheside's counsel; 3. A series of emails between Alandra Harlingten, legal counsel, Ministry of Attorney General Legal Services Branch; again, emails sent to Mr. Los, those emails concern correspondence between January 10 and 29, 2018. [ 3 ] Mr.

Catcheside also provided viva voce evidence to the court as did his wife, Karen Catcheside. A single case was tendered by the applicant in support of his application, R. v. McLaren , 2014 BCSC 982 . While McLaren dealt with an appeal against a driving prohibition, it provides insightful commentary regarding the purpose and intent of driving prohibitions as a regulatory sanction. [ 4 ] Crown counsel takes the position that it would not be contrary to the public interest for Mr. Catcheside's prohibitions to be cancelled, noting in particular the length of time he has been bound by the various prohibitions.

I understood this to mean that the Crown takes no position regarding the application. [ 5 ] Despite being notified of Mr. Catcheside's application, it is noteworthy that neither the Superintendent of Motor Vehicles nor the Insurance Corporation of British Columbia takes a position regarding the application. Neither regulatory body was represented by counsel to respond to the application. However, counsel for the Superintendent confirmed via email correspondence with Mr. Los that, if this court was to cancel the prohibitions, Mr.

Catcheside would nonetheless have to complete the Responsible Driver Program before the Superintendent would consider a reinstatement of his driving privileges. [ 6 ] Mr. Catcheside has an atrocious driving history. The Superintendent of Motor Vehicles Certified Abstract of British Columbia Driving Record is found at Exhibit E of his affidavit. It details a history of driving offences commencing in 1984 and continuing through until June of 2010. In all, there are 46 entries, by my count, including 24-hour prohibitions. Mr.

Catcheside, in his evidence, estimated that he has served more than six years in jail purely as a result of sentences from driving while prohibited or disqualified. Indeed, this may be a low estimate. [ 7 ] During his last lengthy period of incarceration, Mr. Catcheside testified that he undertook courses for anger management and alcohol and substance abuse. I understood that last period of incarceration to commence in June of 2010. There is no reflection in the driver's extract regarding an offence related to motor vehicles from that timeframe. [ 8 ] Mr. Catcheside is now 55 years of age.

On September 10, 2015, he married his wife, Karen Catcheside. The couple reside on the Anahim Lake First Nations Reserve west of Williams Lake. They own a ranch where they have 50 head of cattle. [ 9 ] During the week, Mr. Catcheside testified that he works as a logger or buncher operator for Tsi Del Del Enterprises Limited. He works 12 hours per day, five days per week in a camp environment and returns to Anahim Lake on the weekends to help his wife with ranching duties. His current camp job is located approximately two hours from Anahim Lake by car.

As he cannot drive, he has relied on either his work associates or his wife to ensure he gets to and from his employment with Tsi Del Del Enterprises. Mr. Catcheside testified that the reinstatement of his driving privileges would make it easier to maintain his employment. [ 10 ] Clarence William, in his March 7, 2018, letter, confirmed that it would be of great benefit to the company if Mr. Catcheside could drive given that employees are assigned company vehicles. Mr. William further writes that Mr. Catcheside is a hard worker who has produced "a lot for the company." [ 11 ] In addition to his employment, Mr.

Catcheside testified that he assists the Elders on the Anahim Lake Reserve with the preparation of firewood. I understood his evidence to be that these duties would be greatly assisted with the return of his driver's licence. [ 12 ] Mr. Catcheside deposed in his affidavit that in August 2016 he was subject to a 90-day prohibition. He deposed that he had been riding an ATV, or all-terrain vehicle, on private land near the Alexis Creek General Store. He had in his possession an unopened case of beer when he was stopped by a police officer while riding on the store's property.

He was asked to submit to a roadside screening device, but refused. He deposed that he was not intoxicated at the time. Nonetheless, he was subjected to a 90-day immediate roadside prohibition as a result. [ 13 ] The essence of Mr. Catcheside's application, as I understand it, is that he is not the person he was 30, 20, or even 10 years ago. He has learned from his mistakes. He has paid off debts owed to ICBC.

[ 14 ] He has lost employment in the past as a result of his driving prohibitions. Notably, he was employed in the oil industry in Fort St. John until the industry experienced a downturn. As the only remaining jobs at that time required employees to have a driver's licence, he was unable to continue employment in that community. He deposed in his affidavit that he has lost hours at his current employment due to his lack of driver's licence and hopes that a reinstatement will result in a more consistent work schedule. [ 15 ] Portions of s. 98 of the Motor Vehicle Act relevant to this application are as follows:

(5) A person, who is prohibited from driving a motor vehicle under this

section for a period of more than 3 years, may make an application to the court that prohibited him or her from driving for a review of the length of the prohibition, after 3 years of the prohibition have elapsed. [And after notifying the Insurance Corporation of British Columbia.]

(6) On an application under subsection (5), the court may, if it considers that it is not contrary to public interest, reduce the length of the prohibition or cancel the prohibition.

(7) If the court reduces the length of a prohibition or cancels a prohibition under subsection (6), it must forthwith notify the Insurance Corporation of British Columbia of its decision. [ 16 ] The question for the court, then, is whether or not it is contrary to public interest to cancel Mr. Catcheside's three concurrent driving prohibitions. R. v. McLaren tendered by Mr. Los on behalf of Mr. Catcheside is instructive on the issue of regulatory versus criminal prohibitions.

At paragraph 24 of the McLaren decision, Madam Justice Ross writes that: ...a driving prohibition imposed pursuant to the Motor Vehicle Act is not punitive in nature.

The driving prohibition is part of the regulatory scheme for insuring highway safety... [ 17 ] Further at paragraph 25, she writes: [An order prohibition --] An order prohibiting driving is made in recognition of the need to keep a person off the highways of the province because of the danger he poses to others using the highway... [ 18 ] At paragraph 27, she notes that driving prohibitions also fulfill a deterrent function: ...and should be “sufficient to bring home to the appellant the need to address his driving habits... [ 19 ] At paragraph 28, she writes that: ...courts have held that where a driver has a substantial driving record, a significant prohibition is required to oblige the driver “to confront and address his driving practices”... [ 20 ] She notes further at paragraph 30 that: A driving prohibition is also in part rehabilitative, as it will “cause the offender to reflect on and change his attitude towards driving and road safety so that when he resumes driving, he will be less of a danger to the public”... [ 21 ] Madam Justice Ross goes on at paragraph 31 to contrast purposes of a regulatory Motor Vehicle Act prohibition with those imposed under the Criminal Code , where prohibitions are imposed as part of the punishment for the commission of offences. [ 22 ] Section 98(6) thus allows a court to reduce or cancel a prohibition if it is of the view that it is not contrary to public interest to do so.

The question is would cancelling Mr. Catcheside's concurrent prohibitions be contrary to the public interest? [ 23 ] It is certainly in the public interest that individuals who are capable of work should not be prevented from doing so. I am also of the view that the public interest is engaged where individuals make a concerted effort to change their deleterious habits or those that put the public at risk.

It may be in certain circumstances in the public interest to reconsider the reinstatement of privileges previously removed from such individuals if they demonstrate an ability to make amends and a willingness to abide by the law. A first consideration, however, should be for the security of the public in light of the offence or offences that have brought on the suspensions or prohibitions. [ 24 ] I have noted several times that neither the Attorney General nor the Superintendent of Motor Vehicles takes a position regarding Mr. Catcheside's application and neither body attended the hearing.

It might be tempting to conclude in the absence of these regulatory bodies that reinstatement is not contrary to the public interest. In my view, the Superintendent or Minister's consent (or lack of opposition) does not resolve the issue of what is in the public interest. On that point, see Girouard v. New Brunswick (Registrar of Motor Vehicles) , [1991] M.B.J. No. 905, at paragraphs 5 through 7. The law places the responsibility of determining the public interest on the judge hearing the application, not the registrar.

However, the conspicuous absence of either regulatory body to contest the cancellation of the current prohibitions is a factor upon which I rely in determining whether it is contrary to the public interest to do so. [ 25 ] It is clear from a review of Mr. Catcheside's driving extract that he has struggled with alcohol for some period of time in his life. The April 10, 1995, prohibition resulted from a conviction for driving with greater than 80 milligrams of alcohol in 100 millilitres of blood which resulted in an s. 259 prohibition as well as the 30-year s. 98 Motor Vehicle Act court-imposed prohibition.

The two lengthy court-imposed prohibitions, 40 years and lifetime, resulted from convictions for driving while disqualified under s. 259(4) of the Criminal Code . [ 26 ] Each conviction, again, carried with it penalties apart from the s. 98 Motor Vehicle Act prohibitions. There is public interest in seeing that drivers who habitually violate prohibition orders are subject to significant penalties and that they be deterred from doing so. Driving prohibitions of three and four decades followed by a lifetime prohibition can only be viewed as severe penalties for an admittedly deplorable driving record.

[ 27 ] Mr. Catcheside brings this application 10 years after the last of these prohibitions was pronounced. While he has convictions and further prohibitions in the interim, he has served significant periods of incarceration in addition to the prohibitions.

Further, he has obeyed the prohibition since his release from what I was told was a 25-month term of imprisonment following a June 2010 conviction, save and except for the August 2016 immediate roadside prohibition. [ 28 ] I conclude that the purposes underscoring these lengthy driving prohibitions has been met in the intervening years since they were pronounced. They were not meant to punish Mr.

Catcheside, but rather to recognize the need at the time they were pronounced to keep him off the highways. [ 29 ] I further find that these lengthy prohibitions have served the deterrent effect intended by the sentencing judges. Each was a significant prohibition well beyond the three-year period required before an application under s. 98(5) can be tendered for review of the prohibitions. I conclude that Mr. Catcheside has had the opportunity to confront his driving practices and address them. I am of the view that it is not contrary to the public interest to cancel Mr.

Catcheside's concurrent driving prohibitions. The purpose of these prohibitions has, in my view, been served. I consider the length of the prohibitions to date to be sufficient to bring home to Mr. Catcheside the need to address his driving habits. [ 30 ] Mr. Catcheside has learned that driving while suspended or prohibited means, for him, that he goes to jail and does so for a very long time. I accept that in the intervening 10 years since his last prohibition, aside from the 90-day immediate roadside prohibition, Mr. Catcheside has addressed his driving habits and practices. He has: (

a) Communicated with ICBC regarding outstanding fines; (

b) Confirmed his commitment to abide by the regulations surrounding the privilege of driving; and (

c) Acknowledged his willingness to attend the Responsible Driver Program, a condition precedent to the reinstatement of his driver's licence by ICBC. [ 31 ] In the absence of opposition to this application either from the Crown, the Superintendent of Motor Vehicles, or the Ministry of the Attorney General, I conclude that the prohibitions may be cancelled. [ 32 ] MS. KONGE: Thank you, Your Honour. [ 33 ] THE COURT: Thank you, counsel, for your submissions. [ 34 ] MR. LOS: Thank you, Your Honour. There is, I believe, a subsection in s. 98 that requires the court notify ICBC of its decision.

So perhaps the court could just direct that to be done. [ 35 ] THE COURT: Yes, that is 98(7) which reads: If the court reduces the length of a prohibition or cancels a prohibition under subsection (6), it must forthwith notify the Insurance Corporation of British Columbia of its decision. [ 36 ] I will direct that the Insurance Corporation of British Columbia be notified. I am wondering of the form of that notification, if either counsel has a position on that? [ 37 ] MS. KONGE: No. [ 38 ] MR.

LOS: I am -- I have been in touch with both of those -- both counsel for the Superintendent and ICBC so I am going to email them the results this afternoon. I am not sure about the form the court has to send out, to be honest. I have never done one of these before. [ 39 ] THE COURT: I will simply direct that the court notify the Insurance Corporation of British Columbia of the decision cancelling these three concurrent prohibitions. [ 40 ] MR. LOS: Thank you, Your Honour. [ 41 ] THE COURT: Thank you. ______________________________ P. D. Whyte Provincial Court Judge