R. v. Drake Date:, 2016 BCPC 149

Citation: R. v. Drake Date: 20160519 2016 BCPC 0149 File No: 39643 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BARRY RALPH DRAKE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE PETER M. DOHERTY Counsel for the Crown: B. Goddard Counsel for the Defendant: A. LaBar Place of Hearing: Campbell River , B.C. Dates of Hearing: November 25, 2015 and March 4, 2016 Date of Judgment: May 19, 2016

BACKGROUND [ 1 ] This case came before the Court for trial on November 25, 2015 and March 4, 2016. At the end of the trial I required counsel to provide written submissions. Both solutions were duly received and the matter was set over for counsel to make further argument or clarify their submissions. That turned out not to be necessary counsel being content with the arguments submitted. Decision was reserved. My colleague Judge Flewelling then brought to my attention several cases that the court, in turn, provided to counsel with an invitation to submit supplementary written submissions. Crown declined.

The accused provided a brief supplemental argument. THE FACTS [ 2 ] Loughborough Drive is a surface street on the Wei Wai Kum First Nation’s Reserve in Campbell River. On September 21, 2014, residents of the street observed a vehicle being driving in a reckless manner, described as ‘doing donuts’. Police were called and the accused was identified as the driver. [ 3 ] Crown admits paragraph 1 of the Defendant’s submissions: 1. Mr.

Drake was a prohibited driver on September 21, 2014, when he was seen operating a motor vehicle on Loughborough Drive (the “subject road”) on the Wei Wai Kum First Nation (the “Band”) Reserve in Campbell River, B.C.. As a consequence, he was charged with driving while prohibited pursuant to s.95(1) of the Motor Vehicle Act (the “ Act ”). [ 4 ] In the written argument provided by Crown, Mr. Goddard notes that paragraph 2: 2.

The Crown accepts that Loughborough Drive is a residential street on the Wei Wai Kum First Nation Reserve that is maintained by the Band and is not ordinarily used by the public as a through road as it ends in the cul-de-sac. [ 5 ] The matter is stated by Mr. LaBar under the heading

PART 2 -ISSUE as follows: 1. Whether Loughborough Drive on the Wei Wai Kum First Nation Reserve in Campbell River, B.C. is a “highway” for purposes of the Motor Vehicle Act. ARGUMENT OF THE DEFENDANT [ 6 ] The Crown has the burden of proving each essential element of the offence of driving while prohibited beyond a reasonable doubt. One of the essential elements of the offence is that the driving occur “on a highway or industrial road”.

Section 1 of the Act defines a “highway” as follows: “highway” includes (

a) every highway within the meaning of the Transportation Act (

b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicle, and (

c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited, but does not include an industrial road. [ 7 ] The Crown must prove that one or more of these

definitions of a “highway” apply to the subject road. It is respectfully submitted that the Crown has not done so. The Crown has not led any evidence to support a finding that the subject road is either: - an industrial road for purposes of the Act; - a highway within the meaning of the Transportation Act ; or - used by the public for the purpose of the parking or servicing of vehicles. [ 8 ] The Defendant submits Crown has not led evidence to support a finding that the surface upon which Mr. Drake operated a motor vehicle is a “highway” under the Act.

[ 9 ] Mr. Drake acknowledged in his evidence that the subject road was accessible to the general public for the passage of vehicles. While that concession supports the definition of highway for Loughborough Drive under (

b) above, that alone is insufficient to prove beyond a reasonable doubt that the subject road fits within the definition of ‘highway’ under the Legislation because the status of surface roads on Indian reserve land requires additional evidence not provided by Crown. [ 10 ] The Defendant relies on R. v. Canute et al [1983] BCJ [B.C. Co. Court] Millward CCJ. That case supports the proposition that while the MVA applies to Reserve land, particular surfaces within the Reserve - depending on the facts - may escape the designation of ‘highway’ under (b). [ 11 ] Canute was upheld on appeal; R. v.

Canute et al [1983] BCJ 2315 [BCCA] Carrothers JA, at para 10: By definition, a “highway” does not include a road on a reserve which is built by or for reserve residents, on which no public money is spent and which is not designed or intended for use by the general public. Thus we were not concerned with Canute as he was not a “highway” when he committed the offence alleged by him. [ 12 ] The Defendant says: 6. Similarly, in Mr. Drake’s case, while the public may have occasion to drive on the subject road, the purpose for doing so is incidental to the ownership of the property by the Band.

Unlike Spit Road, which is also on reserve land, the subject road has a clearly marked sign indicating private land and is meant for reserve residents. There is no evidence of public money being spent on the subject road. In fact, quite the opposite: the evidence is that the road is maintained entirely by the Band. [ 13 ] Defendant relies on Galligos v. Louis [1984] CanLII [BCSC] Locke J para 34: In the case at bar, the Lower Logging Rd, has somewhere in the neighbourhood of seven to nine houses along it. It is located on the Sliammon Indian Reserve. It is ordinarily used by residents.

It has been used by contractors building houses along the road, taxi services, political canvassers, and the R.C.M.P. The MacMillan Bloedel transport truck pick up workers who live along the road. Fruit and vegetable vendors require a permit from the band to use the road. B.C. Tel. and B.C. Hydro have easements to conduct their businesses there. There is a beach at the end of the road, but it is mainly used by the reserve residents. Although there are no physical barriers to public access, a private sign at the intersection of the Lower Logging Rd. and Highway 101 has been in existence for about two years.

All this points to the fact that the Lower Logging Rd. is used for purposes incidental to the ownership of the property by the Indians, and not by the general public for their own purposes not connected with the reserve. Following the reasoning in R. v. Joe, supra , and R. v. Canute, supra , I find that the Lower Logging Rd. is not a “highway” within the meaning of s.1 of the Insurance ( Motor Vehicle) Act. This decision was affirmed on appeal; Galligos v. Louis [1986] CanLII 1274 [BCCA]. COMMENT [ 14 ] One of the striking differences between that case and the case at Bar is signage.

In Galligos the road was marked as ‘Private.’ In the case at Bar the sign reads; “You Are Now Entering Private Land - Please Drive carefully.” Behind the sign, a photograph of which was entered in the trial, there appears to be what one might describe as a normal suburban residential street with detached dwellings. Below the aforementioned sign is a smaller sign affixed to the post which cautions, ‘Drive Slowly - Children Playing.’ Clearly, this residential area was open to the public to drive upon by implicit invitation. [ 15 ] The Defendant cites R. v.

Wycotte [2006] BCPC 0657 Bayliff PCJ who ruled that while the public had access to the road in question, it was always by implied or direct invitation and not as of right.

Her finding are summarized in paragraphs 32 through 34; [32] The critical facts that, in my view, require a conclusion that Esket Drive is not a “public space” or a “road to which the public has the right of access” are firstly, that it is entirely on reserve land which is a form of private ownership by a group of people, namely members of the same band. [33] Secondly, Esket Drive is not a through road and as such is not, apparently, part of the provincial highway system … [34] Thirdly, the band pays entirely for the maintenance of Esket Drive.

And fourthly, the principal purpose of Esket Drive is clearly to provide access for members of the band to each other’s residences, to the administrative buildings and services at the centre of the community and to Dog Creek Road, and hence to the wider provincial highway system … [ 16 ] Finally. Mr. LaBar notes: 12. It is respectfully submitted that the same distinction made in Wycotte , between public access by invitation only and public access as a right, can be made in Mr. Drake’s case. The Band has the ability, as land owners, to deny the general public access to the subject road if it so chooses.

The general public uses the subject road by invitation only. This is a further indication that the subject road is not a

“highway” as defined in the Act. CROWN SUBMISSIONS [17] Mr. Goddard, for the Crown notes in his written submissions: 2. The Crown accepts that Loughborough Drive is a residential street on the Wei Wai Kum First Nation Reserve that is maintainedby the Band and is not ordinarily used by the public as a through road as it ends in a cul-de-sac. 3. The testimony of Christopher Drake in relation to Loughborough Drive and Henderson Avenue was that these streets are open tothe public to drive on. 4.

The accused, Barry Ralph Drake, in cross-examination, agreed in relation to Loughborough Drive and Henderson Avenue, thatthese roads are open to the public, and agreed that members of the public are entitled to come and drive on those roads and in factthey’re invited to use those roads if they want to visit people who live there. 5.

Exhibit 3, the photograph of a sign posted on Loughborough Drive, clearly indicates to anyone using Loughborough Drive that itis private land and asks everyone to drive carefully, clearly inviting any person travelling on Loughborough Drive to drive there in acareful manner. [18] It is the positon of the Crown that Loughborough Drive is a road or street used by the general public for the passage of vehicles,despite it being a private place maintained by the Band, and that brings it within the definition of ‘highway’ under the Act. [19] Mr. Goddard distinguishes Galligos as an insurance case thusly: 14.

The appeal by Canute was allowed on the basis that the road he drove on was determined by the Appellate Court to not comewithin the definition of a highway. The Appellate Judge relied on several factors, including that there were at times no trespassing signsposted at either end of the road, that the gravel portion of the road was used primarily as a short cut to church by pedestrians, and wasonly passable by 4 wheel drive vehicles even in good weather, that only native people lived in the area, and that only occasionally did apublic employee or bewildered tourist use the paved

section of the road. 16. Galligos v. Louis, (BC CA), 33 D.L.R. (4th) 638 is a decision of the B.C. Court of Appeal that the InsuranceCorporation of British Columbia was not liable under

section 19 of the Insurance (Motor Vehicle) Act for the operation of an uninsuredvehicle on a road on the Sliammon Reserve. The Court determined at trial that the evidence did not show the road in question was usedby the general public.

The Appellate Court agreed the evidence did not show that the general public used the road and stated the generalpublic were not invited to use the road. [20] Crown says Wycotte is wrongly decided because the learned trial judge ruled “the public did not enjoy access to the road inquestion as of right, and determined the road in question was not one that a Criminal Code prohibition applied to.” (Crown’ssubmissions para 17, in part). [21] Mr. Goddard sets his argument out in para 18 of Crown’s submissions; 18.

Nothing in the Motor Vehicle Act definition of a highway requires that the public enjoy access to a highway as of right, and theMotor Vehicle Act definition specifically includes private places the public has access to, or is invited to, for the purpose of parkingvehicles.

COMMENT [22] Crown, while admitting this is a private street solely maintained by the Band on its Reserve land, says there is no evidentialfoundation that, (quoting from the Defendant’s submission,) “The Band has the ability, as land owners, to deny the general public accessto the subject road if it chooses.” With respect, that argument seems logically inconsistent. It seems to me it would be in the purview ofthe Band to post ‘Private Road’ or even ‘No Trespassing’ signs anywhere on its property to restrict passage to a road they maintained.

That they did not do this in regard to Loughborough Drive and, in fact, posted signs that warned drivers that they were on private landand to drive carefully seems, implicitly, to anticipate the public would be using that street, inviting them to be cautious. It seems clear,that access to the public is not ‘as of right.’ [See R. v. Wycotte, above.] As Mr.

LaBar notes in his submissions; “The mere fact that thesubject road was accessible to the general public does not automatically make it a highway.” [23] This ruling will give little comfort to Band members who called police to confront a reckless driver in a residentialneighbourhood where children may play. The Band members on that street, no doubt, thought the Highway Act enforceable on theirstreet. [24] It should be noted that, during the course of this hearing, I said to counsel that it might be useful to take this case up no matterthe outcome.

BY THE COURT _________________________________ The Honourable Judge Peter M. Doherty