R. v. Chan, 2021 BCPC 49

Citation: R. v. Chan 2021 BCPC 49 Date: 20210302 File Nos: AJ15178636 AJ15178644 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHI WAI CHAN REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE D.G. SCHWARTZ Counsel and Agent for the Crown: Cst. B. Ellis Counsel for Disputant: N. Ganapathi Place of Hearing: Vancouver , B.C. Date of Hearing: July 29, November 12, 2020 Date of Judgment: March 2, 2021

INTRODUCTION [ 1 ] Chi Wai Chan (the disputant) was ticketed in Vancouver, B.C. with two charges under the Motor Vehicle Act RSBC 1996 c. 319 (the Act ). The first charge alleges that on or about March 31, 2019 the disputant, as registered owner, contravened s. 68(2) (

b) of the Act described in the ticket as “Hit & Run – fail to leave info in writing”. The second ticket alleges that on or about March 31, 2019 the disputant, as registered owner, contravened s. 84(2) of the Act described in the ticket as “R/O gives false information”. The disputant pleaded not guilty on both charges on July 29, 2020. He was self represented at that sitting. I heard the testimony of the Crown witnesses on July 29, 2020. I adjourned for lack of court time after the direct testimony of Constable Ellis was complete to another day to be fixed by the registry for a continuation.

On November 12, 2020 the disputant attended with legal counsel. Counsel waived cross-examination of Constable Ellis, Crown closed its case, and counsel brought a “no evidence” motion. I heard oral argument of both parties and adjourned for decision. THE LEGISLATION [ 2 ] Section 68(2) of the Motor Vehicle Act reads: Duty of driver at accident 68

(1) The driver or operator or any other person in charge of a vehicle that is, directly or indirectly, involved in an accident on a highway must do all of the following: (

a) remain at or immediately return to the scene of the accident; (

b) render all reasonable assistance; (

c) produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request, to a witness (

i) his or her name and address, (ii) the name and address of the registered owner of the vehicle, (iii) the licence number of the vehicle, and (iv) particulars of the motor vehicle liability insurance card or financial responsibility card and, if applicable, blanket certificate for that vehicle, or such of that information as is requested.

(2) The driver or operator or any other person in charge of a vehicle that collides with an unattended vehicle must stop and must (

a) locate and notify in writing the person in charge of or the owner of the unattended vehicle of (

i) the name and address of the driver, operator or other person in charge, (ii) the name and address of the registered owner, and (iii) the licence number of the vehicle that struck the unattended vehicle, or (

b) leave in a conspicuous place in or on the vehicle collided with a notice in writing giving the information referred to in paragraph (a).

(3) The driver or operator or any other person in charge of a vehicle involved in an accident resulting in damage to property on or adjacent to a highway, other than a vehicle under subsection (2), must take reasonable steps to locate and notify in writing the owner or person in charge of the property of the fact of the accident and of the following: (

a) the name and address of the driver, operator or other person in charge of the vehicle; (

b) the name and address of the registered owner; (

c) the licence number of the vehicle. Duty to give information 84

(1) If a peace officer has reason to believe that a motor vehicle has been involved in an accident or in a contravention of this Act , the Commercial Transport Act or the Transportation Act , the regulations under any of these Acts , the bylaws of a municipality or the laws of a treaty first nation, and so informs the owner or a person in the motor vehicle, it is the duty of the owner or person, as the case may be, if required by the peace officer, to give all information it is in his or her power to give relating to the identification of the driver of the motor vehicle at the relevant time or during the relevant period.

(2) If the owner or other person fails to comply with subsection (1), or gives information that he or she knows to be false or does not believe to be true, he or she commits an offence against this Act .

THE EVIDENCE Constable Kitson [ 3 ] Constable Kitson testified that he was dispatched to a police incident on March 31, 2019. He was with Constable Killoran when dispatched to a hit and run accident (the accident) in the 2700 block of Franklin Street which is in the City of Vancouver in the Province of British Columbia. The dispatcher indicated that at 3.40 a.m. a citizen reported hearing a loud crash in the block they lived in. They reported that they had observed a black vehicle which struck a parked BMW and the black vehicle fled the scene. They reported that the BMW suffered extensive damage.

The damage included a bent rear axle and the left wheel well was damaged and the vehicle was not drivable. The vehicle was on the North side of the street. The officer concluded that the vehicle that caused the damage had been travelling in a westbound direction to have caused the damage that it did. [ 4 ] Constable Kitson spoke to the owner of the BMW and determined the owner had no knowledge his vehicle had been in an accident.

The vehicle was impounded by the officer. [ 5 ] Constable Kitson also located a second vehicle around the corner from the BMW at the 200 block of Slocan parked on the East side facing North which had extensive damage. That vehicle was a black Honda Accord with Licence plate BG3 10K. Constable Kitson observed that the Honda had extensive front end damage and sideswipe damage on both sides of the vehicle. He impounded that vehicle as well.

That vehicle was registered to the disputant – see Exhibit 8. [ 6 ] When asked if there was any indication that the Honda had been stolen, Constable Kitson replied that there were no obvious indicators that would typically indicate a stolen vehicle such as a punched door lock, punched ignition, broken window or anything else. [ 7 ] While on patrol later in the evening Constable Kitson and Constable Killoran were notified by the E-Comm 911 centre that the owner of the Honda Accord had called to report his vehicle as stolen.

Constable Killoran called the Disputant back at 604-537-2050 and Constable Kitson heard one side of that conversation. Constable Killoran was not available to give testimony. Constable Kitson was able to relate what he heard of that conversation and understood that the disputant reported that his vehicle had been stolen the previous evening while he was at a restaurant in the area where the hit and run had taken place. The disputant added that his keys had been stolen from the restaurant.

Constable Killoran told the disputant to come into the police station for an audio/video recorded interview and the police would be happy to take his statement. The officer testified that no threats or inducement were given to encourage such a statement. On cross-examination by the disputant, Constable Kitson confirmed that the conversation he overheard occurred once for sure but did not know if any other conversation between Constable Killoran and the disputant had taken place. John Spiby [ 8 ] John Spiby was called as witness for the Crown.

He was able to testify that he was awakened about 3.30 a.m. on the 31st of March 2019 by a noise but he fell back asleep. He lives on the 2700 block of Franklin Street. In the morning his neighbour visited him and pointed out that his vehicle, a white 1989 Mercedes 300SE, was damaged. When he examined the damage he saw scratches down the left back quarter panel and a broken taillight. He also observed a broken headlight lens above and below the bumper bar. Police later attended and retrieved the debris. The vehicle had been parked on the North side of Franklin Street facing westbound. Mr.

Spiby identified the damaged headlight lens found near the bumper from pictures later entered as Exhibit 7. Constable Ellis commented extensively on this exhibit later. Mr. Spiby confirmed that nobody came to his house to report the damage to his vehicle nor was any information left at the scene indicating who caused the damage to his vehicle. The disputant did not cross-examine this witness. Constable Ellis [ 9 ] Constable Ellis testified that he has been a police officer for 14 years and had been assigned to the Hit and Run Investigations Unit for the last year and a half.

He reviewed the report of Constable Kitson and Constable Killoran and then examined the two vehicles that had been towed to the garage. He introduced several photos he took which were marked Exhibit 1. These show the damage to the BMW referred to in the testimony of Constable Kitson. The photos show a sideswipe to the driver front fender and wheelwell located some 16 inches to 28 inches from the ground. There was also some damage to the driver’s front wheel as well. [ 10 ] He then filed a series of photos which were marked Exhibit 2 which show the damage to the Honda Accord which belongs to the disputant.

These photos clearly show damage to the Accord on both the driver’s side and the passenger side at a similar height to that of the BMW. Exhibit 3 was entered and it shows the scraping along the bumper of the Mercedes which was Mr. Spiby’s vehicle and shows the height of that bumper being consistent with other damage on the BMW and the Honda. After further investigation Constable Ellis identified another vehicle that had likely been involved with this accident. Exhibit 4 shows that vehicle to be a Honda Prelude with damage to the driver’s side.

It had been parked on the 2700 block of Franklin but facing the opposite direction from the BMW and the Mercedes. Again the measurements of the sideswipe correspond with the damage on those other vehicles. Constable Ellis submitted into evidence as Exhibit 7 photos of the damaged front headlight on the disputant’s vehicle and the headlight debris found by Mr. Spiby above and below the bumper of his Mercedes.

In particular in photos marked DSC – 0028 and DSC – 0029 show a remarkable fit of the headlight debris. [ 11 ] Constable Ellis urged the Court to find that the evidence in the photos of all the vehicles is consistent with a finding that the disputant’s vehicle came into collision with the BMW, the Mercedes and the Honda Prelude. The height of the sideswipe damage is consistent. The debris fits the headlight of the disputant’s vehicle so perfectly it cannot be mere coincidence.

Constable Ellis described this part of his investigation in great detail and it remains unchallenged. [ 12 ] Having examined this photographic evidence and having heard the evidence of Constable Ellis I have absolutely no doubt that it was the disputant’s vehicle that collided with and caused damage to the other vehicles. That factual finding was not seriously challenged by the disputant. The “driver or operator or person in charge of the vehicle” failed to leave the required information at the scene. Cell Phone Evidence

[ 13 ] Constable Ellis testified that he had obtained a production order to obtain the cell phone data for phone number 604-537-2050, which was the disputant’s phone number when he spoke to Constable Killoran on his phone reporting his vehicle stolen. This cell phone data was obtained from Rogers Communications and Exhibit 5 is an affidavit prepared by an investigator employed by Rogers documenting compliance with the Production Order.

The affidavit sets out the subscriber information confirming that between March 30, 2019 and March 31, 2019 the disputant was the subscriber of phone number 604-537-2050 and he lives at 6568 Sumas Drive, Burnaby, BC. Also attached is a call log for those dates showing all calls to and from the Disputant’s cell phone, their duration and the “First Cell ID” which refers to the nearest cell tower identity that carried that call.

Exhibit 6 was prepared by Constable Ellis showing various Google Maps showing the location of the relevant cell tower locations relative to the disputant’s cell phone. [ 14 ] Constable Ellis referenced Exhibits 5 and 6 in testimony and expressed his

summary as follows: “So relevant phone calls and cellular activity on Mr. Chan’s phone occurred on the 30th of March at 2046 hours. That was the first one that put his cell tower in the vicinity of the hit and run. There was subsequent activity from the same tower at 2:17 a.m. on the 31st of March, and relevant activity at 3:15 a.m. on the 31st of March, on same cell tower. These are phone calls from Mr. Chan. So Mr. Chan, at 3:15 in the morning – it’s a bit of a late night for Mr.

Chan – was three blocks from the hit and run scene – and bearing in mind that the hit and run was reported to the police in the CAD call at 3:39 a.m. with an approximate five-minute time delay, giving an approximate time of the actual collision as being 3:34 a.m.” [ 15 ] The Court asked some clarifying questions and Constable Ellis indicated as follows: “Of all the places in the Lower Mainland Mr. Chan could have been, he was closest to that cell tower when he was making calls. That was the tower that was carrying his – cellular communications.

And his cellular communications in that neighbourhood were last made at 3:15 a.m. (…) when the hit and run occurred. And the next cell tower location to carry a communication from Mr. Chan’s phone was in North Burnaby off of Hastings and Kensington at … 6:12 a.m. There were a number of communications from 6:12 a.m. through to 8:06 a.m. that were carried by this North Burnaby cellphone. So Mr. Chan has been up all through the night it would appear based on his cellular activity and his ability to send at this time of the morning texts messages that return a cell tower location. And Mr.

Chan at this time is out of the neighbourhood of the hit and run circumstance. The remaining four pages in this plotted document show locations where Mr. Chan’s cellular communications were then carried by towers in mid-Burnaby. It’s the investigative belief that around these times Mr. Chan had returned to his address on Sumas Drive because at 8:41 a.m. Mr.

Chan’s cellular communication is being carried by a tower at 7360 Halifax Street.” [ 16 ] As the Court did not have the benefit of extensive cross-examination of Constable Ellis on this rather technical evidence nor the benefit of an expert witness on the inherent weaknesses of the cell tower data (if any), it has reviewed the data in Exhibits 5 and 6 along with the transcript of Constable Ellis’s testimony carefully and finds that his explanations are consistent with the data and are credible. I am satisfied that Mr. Chan’s phone was at the scene of the hit and run at the material time.

CIRCUMSTANTIAL EVIDENCE ASSESSED [ 17 ] There is no direct evidence placing the cell-phone in the hand of Mr. Chan at the relevant time of the hit and run. There is the evidence of Constable Kitson who reported overhearing a conversation of Mr. Chan with Constable Killoran reporting Mr. Chan’s vehicle as stolen. As no follow up statement was ever made by Mr. Chan we have no other evidence supporting this assertion.

As always the burden is on the Crown to establish the case beyond a reasonable doubt. [ 18 ] The Supreme Court of Canada has articulated the manner in which the Court must assess a case based on circumstantial evidence. In R. v. Villaroman , 2016 SCC 33 the succinct headnote reads in part as follows: A view that inferences of innocence must be based on proven facts is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt.

The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [ 19 ] Has the Crown met its burden to “negative these reasonable possibilities which are inconsistent with guilt”? The Court finds that it has met that burden. Why? [ 20 ] The location of Mr. Chan’s cell phone at the scene of the hit and run is established above. Mr.

Chan used the same phone later to report his vehicle as stolen. How did his phone get from the stolen vehicle to Mr. Chan later for him to make the call to police? This is inconsistent with logic and experience applied to the evidence or the absence of evidence and is not based on speculation. The only reasonable inference from all the evidence is that Mr.

Chan was himself at the scene of the hit and run on Franklin Street, abandoned his vehicle and left the area to return to Burnaby near where he lives and later phoned to report his vehicle stolen in an attempt to avoid responsibility for the collisions he caused. [ 21 ] Counsel has argued that Mr. Chan should have been charged (if at all) with s. 68(1) rather than s. 68(2) of the Motor Vehicle Act .

He has argued that the words “directly or indirectly” applies to Mr. Chan as he is “indirectly” involved in an accident within the meaning of s. 68(1) of the Act . No authority was provided for this argument. [ 22 ] Crown argued that the phrase “directly or indirectly” applies where an accident occurs on a highway between some vehicles and a driver avoids the immediate collision but hits another person at roadside. This is an indirect involvement in an accident. [ 23 ] Subsection 68(2) sets out the duty on a person in charge of a motor vehicle that collides with an unattended motor vehicle . That is why the direction in s. 68(2)(

b) exists, to leave in a conspicuous place the required information. Counsel’s argument that the wrong

section was charged is rejected on the plain language of the Act . DECISION [ 24 ] The Crown has proven all the elements of the offence under s. 68(2) beyond a reasonable doubt. It follows from the facts proven by the Crown that a finding of guilt must flow on s. 84(2) of the Motor Vehicle Act as well. The report of a stolen vehicle was false information or Mr. Chan knew that report to be false when he made it. Mr. Chan stands convicted on both charges.” _____________________________ Judicial Justice D.G.

Schwartz Provincial Court of British Columbia CORRIGENDUM - Released March 11, 2021 In the Reasons for Judgment dated Decemeber 4, 2020, the following changes have been made: [1] On the cover page, the date of the hearing and the date of the Judgment should read: Date of Hearing: July 29, November 12, 2020 Date of Judgment: March 2, 2021 [2] In paragraph [2] the portion of the quote from the Motor Vehicle Act under the heading Duty to give information should read: 84

(1) If a peace officer has reason to believe that a motor vehicle has been involved in an accident or in a contravention of this Act , the Commercial Transport Act or the Transportation Act , the regulations under any of these Acts , the bylaws of a municipality or the laws of a treaty first nation, and so informs the owner or a person in the motor vehicle, it is the duty of the owner or person, as the case may be, if required by the peace officer, to give all information it is in his or her power to give relating to the identification of the driver of the motor vehicle at the relevant time or during the relevant period.

(2) If the owner or other person fails to comply with subsection (1), or gives information that he or she knows to be false or does not believe to be true, he or she commits an offence against this Act . [3] In paragraph [16] the sentence has been changed to “…it has reviewed the data in Exhibits 5 and 6 along with the transcript of Constable Ellis’s testimony carefully and finds that his explanations are consistent with the data and are credible.” [4] In paragraph [24], the last sentence should read “Mr. Chan stands convicted on both charges.” _____________________________ Judicial Justice D.G. Schwartz Provincial Court of British Columbia