R. v. Dickson, 2003 BCSC 437

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dickson 2003 BCSC 437 Date: 20030324 Docket: 20518 Registry: Vancouver Regina Respondent v. Kenneth R. Dickson Appellant Before: The Honourable Mr. Justice Rogers Reasons for Judgment Counsel for the respondent: A.V. Lee Counsel for appellant: J.E. Bethell Date and Place of Hearing: March 12, 2003 Vancouver, B.C. [ 1 ] In metropolitan Vancouver on a two-way street on July 12, 2001, Mr. Dickson decided to ride his motorcycle between two lanes of traffic. Cars waiting for a traffic light to change occupied those lanes. To Mr.

Dickson’s chagrin, one of the cars he overtook was a police cruiser. Officer Aitken was at the wheel of the cruiser. Officer Aitken chased Mr. Dickson down and gave Mr. Dickson a ticket for passing on the right contrary to s. 158 of the Motor Vehicle Act . Mr. Dickson thought the ticket unwarranted, and disputed it. His Worship Almond, JJP heard the trial of the charge. His Worship Almond, JJP convicted Mr. Dickson, and sentenced Mr. Dickson to a fine of $86 and a 60-day driving prohibition. Unsatisfied with that result, Mr. Dickson has appealed both conviction and sentence.

THE FACTS [ 2 ] Officer Aitken was the only witness at trial. The gist of Officer Aitken’s testimony was that he stopped at a traffic light, and was in the middle of three traffic lanes. There were several cars ahead of him, at least one behind him, and cars to the left and right. Everyone (except, as we shall see, Mr. Dickson) stopped and waited patiently for the traffic light in their direction of travel to change from red to green. The light did turn green, and just as the traffic around the Officer began to move forward, a motorcycle overtook the Officer’s car.

The motorcycle passed by the cruiser’s passenger door; that is to say on its right hand side. The motorcycle was traveling on the line that separated the Officer’s lane from the lane immediately to his right. Mr. Dickson passed by the vehicles with perhaps six inches of clearance on either side of his handlebars. Mr. Dickson was not over the speed limit and his motorcycle was under control at all times. While Mr. Dickson did not exceed the speed limit, Officer Aitken testified that he was going considerably faster than the surrounding traffic so that he overtook the traffic “rapidly”.

There was no collision between the motorcycle and anyone or anything else. [ 3 ] Officer Aitken’s evidence was not shaken in cross- examination. [ 4 ] His Worship Almond, JJP gave reasons. They are brief. His Worship Almond, JJP found as a fact that Mr. Dickson maneuvered his motorcycle as Officer Aitken described, that is to say between the two lanes of traffic, and that in doing so there were perhaps six inches of clearance between the motorcycle’s handlebars and the vehicles he was overtaking. His Worship Almond, JJP accepted that this maneuver took the officer by surprise, and he found Mr.

Dickson guilty of overtaking on the right contrary to s. 158(1) of the Motor Vehicle Act .

THE LAW [ 5 ] The relevant

section of the Motor Vehicle Act is: 158

(1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except (

a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn, (

b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or (

c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right (

a) when the movement cannot be made safely, or (

b) by driving the vehicle off the roadway. [ 6 ] The appellant cites Collver J in Hildebrand v. Flint et al 2000 BCSC 1876 as authority for the proposition that s. 158(2) creates a general permission to pass on the right. In that case, Mr. Hildebrand sued for damages when his bicycle collided with Cst. Flint’s police car. Collver J. found that the police car came up from behind the bicycle, overtook it, and then turned right. When the car turned, the bicycle was so close that Mr. Hildebrand had no opportunity to avoid hitting its right front fender. Cst.

Flint was liable for the accident because he did not pay sufficient attention to his surroundings, and he turned when Mr. Hildebrand was so close that Mr. Hildebrand had no chance to avoid the collision. Mr. Dickson says that this passage in Collver J.’s reasons: . . . s. 158 of the Motor Vehicle Act , supra , which proscribes passing on the right except in three permitted situations, or “when the movement cannot be made safely”, . . . is a statement of law that establishes the appellant’s position.

I observe that the full passage in the reasons is thus: If one accepts that theory, counsel for the defendants argued that Mr. Hildebrand was thus in breach of s. 158 of the Motor Vehicle Act, supra , which proscribes passing on the right except in three permitted situations, or “when the movement cannot be made safely”, and that having regard to his speed and his to heed the presence of the police car beside him, Mr. Hildebrand at least contributed to the ensuing accident. [ 7 ] Collver J. was not pronouncing the law – he was simply reciting counsel’s argument and counsel’s, not the court’s,

interpretation of s. 158. Further, Collver J. did not have to interpret s. 158 in order to reach the decision he did. To the extent that in Hildebrand Collver J. passed comment on the meaning of s. 158, that comment was not necessary to the ratio of the case and is obiter dicta . As such it is not binding on me. ANALYSIS [ 8 ] Does s. 158(2) create a general permission to pass on the right so long as it can be done in safety?

Put another way, does the word despite in s. 158(2) modify the proscription against passing on the right, or does it modify the exceptions enumerated in subsections (a),(b), and (c)? [ 9 ] In my view, s. 158 must be read as a whole. Subsection (1) generally prohibits passing on the right. That is the staring point:

passing on the right is verboten. [ 10 ] Subsections (1)(a),(b), and (

c) create limited exceptions to the general proscription. By their authority, one may pass on the right only so long as: (

a) one is going by a left turning driver; (

b) there is an unobstructed lane for one to use to make the passing maneuver, or; (

c) there is a one-way street of sufficient width to accommodate two or more lanes of moving vehicles. Unless one of these three situations pertains, s. 158(1) prohibits passing on the right. [ 11 ] Subsection (2) contemplates passing on the right as well. According to s-s. (1) passing on the right is generally impermissible. I read s-s. (2) as applicable only to those three narrow circumstances under which passing on the right is permitted, i.e.: the three situations described by s. 158(1)(a),(b), and (c). [ 12 ] If the

section were interpreted as Mr. Dickson argues, that is to say if s. 158(2) creates a general permission to pass on the right so long as it is safe and you do not drive off the road to do it, then the general proscription in s. 158(1) would be completely unnecessary. Mr. Dickson’s argument would render s. 158(1) ineffective and redundant. I presume that the Legislature did not wish to pass ineffective legislation. The

section must, in my view, be interpreted in a way that preserves its sense and gives effect to all of its provisions. [ 13 ] Further, on Mr. Dickson’s

interpretation of the

section his maneuver at the intersection would be acceptable in law. If that were so, then at any intersection where cars wait for a traffic light, motorcycles could filter in and fill up the spaces between the vehicle lanes, like styrofoam peanuts filling empty space in a shipping box. It takes little imagination to picture the chaos that would result when the light turns green and the motorcycles jostle and jockey to regain their proper position in the traffic lanes. I would not be the author of an

interpretation that would lead to that chaotic result. [ 14 ] If I am incorrect in my

interpretation of s. 158(2), it remains for me to consider Mr. Dickson’s argument that His Worship Almond, JJP erred when he determined that Mr. Dickson’s maneuver was not one that could be done safely. In his reasons His Worship Almond, JJP did not discuss the legal meaning of “safely”, but did find that it was unsafe for a motorcycle to overtake slowly moving traffic at a moderate speed by passing between fully occupied lanes leaving only six inches of clearance between his bike and the surrounding cars. The fact that there was no mishap does not, in my view, convert an unsafe situation to a safe one.

The absence of a collision in such circumstances means that everyone was lucky, not that everyone was safe. His Worship Almond, JJP had before him evidence on which he could have concluded that, in the particular circumstances of the time and place, Mr. Dickson’s maneuver could not have been completed safely. That was a proper finding and I would not disturb it. SENTENCE [ 15 ] Mr. Dickson has no complaint against the fine he received, but says that the 60-day driving prohibition was excessive. [ 16 ] Following his conviction, Crown entered Mr. Dickson’s driving record entered into evidence.

Between November 1997 and July 2001, he was convicted of 14 driving offences. A non-exhaustive list of those offences includes six speeding tickets, one for excessive speed, one for speeding in a playground, and tickets for disobeying traffic control, unsafe U-turn, and disobeying a yellow light. [ 17 ] The learned Judicial Justice of the Peace reviewed the record. The learned Judicial Justice of the Peace considered and rejected defence counsel’s utterly facetious argument that the record was not really as bad as it appeared because if Mr.

Dickson had disputed those tickets he would have got off on a quarter of them. [ 18 ] His Worship Almond, JJP concluded that Mr. Dickson was a person who needed to mend his ways. The learned Judicial Justice of the Peace suggested that Mr. Dickson enroll in driver improvement training, and that he be retested with respect to his driving privilege. Those were, in my view, just and appropriate observations. Mr.

Dickson’s driving record reveals that he is a person with little regard for traffic safety and has the impression that the rules of the road somehow do not apply to him. [ 19 ] The sentence imposed was fair and just. Indeed, were I to be asked to consider sentencing anew, I would impose a longer prohibition than did the learned Judicial Justice of the Peace. [ 20 ] I echo the learned Judicial Justice of the Peace’s recommendation that Mr. Dickson be retested for his driving privilege, if that has not already been done between April 2002 and today. CONCLUSION [ 21 ] Mr.

Dickson was not occupying a position contemplated by s. 158(1)(a),(b), or (c). He is not, therefore, entitled to claim an exemption to the prohibition contemplated by those three paragraphs. Section 158(2) modifies those exceptions. That being so, and because those exceptions do not apply in the present case, it was not necessary for the learned Judicial Justice of the Peace to consider whether Mr. Dickson was or was not driving safely. The Judicial Justice of the Peace had before him evidence on which he could find Mr. Dickson guilty of passing on the right contrary to s. 158(1) of the Act .

I cannot say that the learned Judicial Justice of the Peace failed to properly interpret the Act . Instead the conviction the learned Judicial Justice of the Peace entered was entirely consistent with a proper

interpretation of that Act and was consistent with the evidence he heard at trial. [ 22 ] If I am wrong on the

interpretation of s. 158, that is to say if s. 158(2) modifies the proscription rather than the exceptions in s. 158(1), then it remains for me to consider whether the learned Judicial Justice of the Peace erred when he concluded that Mr. Dickson’s maneuver was one that could not be completed in safety. What is safe to do depends upon the circumstances of the time and place. The learned Judicial Justice of the Peace considered the proximity of Mr. Dickson’s motorcycle to the waiting traffic, and considered that the maneuver was unexpected and surprising to the Officer who witnessed it.

The evidence established that Mr. Dickson’s passing maneuver had him going at a moderate speed within six inches of traffic under circumstances where his presence between the vehicles was quite unexpected. The combination of operating a vehicle in an unexpected manner coupled with traveling at speed less than a foot from vehicles occupied by those unexpecting motorists was, in my view, ample evidence to support the learned Judicial Justice of the Peace’s conclusion that the passing maneuver could not be done safely.

[ 23 ] Mr. Dickson’s appeal is dismissed. “P. Rogers, J.” The Honourable Mr. Justice P. Rogers