R. v. Jarvis, 2021 BCPC 223

Citation: R. v. Jarvis 2021 BCPC 223 Date: 20210713 File No: 42891-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN PATRICK JARVIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: R. Watwough, Articled Student Counsel for the Accused: M. Munro Place of Hearing: Duncan , B.C. Date of Hearing: May 27 & July 13, 2021 Date of Judgment: July 13, 2021 Introduction

[1] THE COURT: Ryan Patrick Jarvis is before this Court. Mr. Jarvis has been charged on a single-count information that on orabout the 14th of November, 2019, at or near Duncan, British Columbia, he did drive a motor vehicle on a highway or industrial roadknowing that he was prohibited from driving a motor vehicle pursuant to s. 93(1)(a)(ii) of the Motor Vehicle Act, being an offencecontrary to s. 95(1) of the Motor Vehicle Act, R.S.B.C. 1996. [2] The issues that are not in dispute in this matter are: (

a) that Mr. Jarvis was, in fact, a prohibited driver on November 14th, 2019;(

b) there is no issue as to identity or jurisdiction; (

c) Mr. Jarvis admits that he moved a motor vehicle while in an assigned parking stallnear his residence. [3] The sole issue before this Court is whether or not that driving of the motor vehicle occurred while on a highway or industrialroad as defined under the Motor Vehicle Act. Presumption of Innocence [4] The obligation is on the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then and onlythen, can the court convict the accused person. Where a reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [5] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. [6] The Crown must prove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certaintysince that would be an impossibly high standard.

The standard of reasonable doubt falls much closer to absolute certainty than to proofon a balance of probabilities. [7] In short, if, based upon the evidence before the court, the finder of fact is sure the accused committed the offence, then thefinder of fact should convict since this demonstrates that the finder of fact is satisfied of the accused's guilt beyond a reasonable doubt(see R. v. Lifchus, (S.C.C.), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144).

The W.(D.) Formula [8] I must instruct myself that in the trial of matters of this nature, including criminal matters, it is not a question of which witness'sevidence or version of the events I believe, but rather whether, on the totality of the evidence, Crown has proven each essential elementof each offence beyond a reasonable doubt. [9] Where there is evidence of an accused that raises a defence, as in this case, then I must further instruct myself and I must applyto this evidence the well-known process of analysis set out in R. v. W.(D.), (S.C.C.), [1991] 1 S.C.R. 742, found atparagraph 28.

That may be summarized as follows: • First, if I believe the evidence of the accused, obviously I must acquit. • Second, if I do not believe the testimony of the accused, but I am left in a reasonable doubt by it, I must acquit. • Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidencewhich I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [10] The supplemental test to the W.(D.) formulation as enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991]B.C.J.

No. 2735, it adds a fourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable todecide whom to believe with respect to the central issue in a prosecution, then the accused must be acquitted. Josiah Wood J.A., as hethen was, suggests that, logically, this ought to be second in order in the W.(D.) analysis. [11] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times or toachieve a level of sanctity or immutable perfection.

Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt (see R. v. S.(J.H.), 2008 SCC 30 , 2008 2 S.C.R. 152).

The Court's Approach in Summarizing the Evidence [12] For the purpose of these reasons, I have broken the evidence into the following categories: first, what I view as the non-controversial background facts that surround the case; second is the evidence adduced by Crown in support of Crown's theory of thecase; and last is the evidence adduced by the defence in support of their theory of the case, which has been provided by Ryan PatrickJarvis (hereinafter referred to as "the Accused").

Summary of the Undisputed Circumstances [13] The Accused was under surveillance by Constable Laing of the North Cowichan/Duncan detachment of the RCMP on the 14th ofNovember, 2019. Constable Laing was in an unmarked police car sitting across the street from a local pub, restaurant, and liquor storeknown as the Oak and Carriage.

The Accused, Ryan Patrick Jarvis, was a resident of a suite above the pub portion of the facility.According to the evidence of both the police officer, Constable Laing, as well as the evidence of the Accused, the area comprising thepub had exit doors which exited onto the parking lot area of the Oak and Carriage property. Beside the exit doors from the pub was anexterior staircase.

It led to the upper floors wherein there was accommodation used by the Accused as a tenant. [14] In addition, there was a liquor store facility located adjacent to but separated from the pub area by a breezeway. [15] As I understand the evidence, the adjacent general parking lot was accessible to the public for their use. I take it that such use

was available while members of the public were patrons of the Oak and Carriage facility. [ 16 ] However, within this general parking lot, there were some areas specifically designated and marked as "24-Hour Reserved" parking stalls. According to the evidence of the Accused, one of the parking stalls was assigned to him as a tenant.

That parking stall was located immediately outside of one of the exit doors leading from the pub area. [ 17 ] Exhibit Number 6 is a series of photographs depicting a white Chevrolet Impala motor vehicle parked in a particular parking stall with a clearly identifiable sign that says, "24-Hour Reserved." The evidence is that there was also signage immediately adjacent to that parking stall which warned individuals that they could be towed if they were parking within one of the assigned reserved parking stalls. [ 18 ] On the evening in question, Constable Laing observed two individuals proceeding towards the parked white parked Impala (the “Vehicle”).

It is Constable Laing's evidence that he recognized these individuals, although he could not see them facially, but he had been alerted to the possible presence of the Accused, as a result of previous reports that he had received. He watched the two individuals approach the Vehicle and observed the Accused getting into the front seat of driver’s side of the Vehicle and the other individual entering into the passenger side. [ 19 ] At that point, Constable Laing observed that the Vehicle appeared to have been started up.

He made that observation and came to that conclusion based upon the fact that the Vehicle’s front lights became illuminated brightly, the taillights became illuminated, and he observed that, after a short period of time, the Vehicle started to back up. It is common ground that the Vehicle moved a very short distance inside of the assigned parking stall.

The time that it took for that Vehicle to move that very short distance was brief, but it did permit Constable Laing to move his unmarked police car through the parking lot area; he positioned his police vehicle directly behind the Vehicle into which he had observed the Accused entering on the driver's side.

Thus the Vehicle into which the Accused had entered was essentially hemmed in by the police vehicle. [ 20 ] At that point, Constable Laing says that he exited his police vehicle and proceeded directly to the driver's side of the Vehicle where he made his observation that the person whom he believed to be Ryan Patrick Jarvis was seated in the driver's seat and in care and control Vehicle.

Constable Laing concluded that he had reasonable grounds to arrest the Accused on the charge of driving a motor vehicle on a highway while prohibited under the Motor Vehicle Act . [ 21 ] In his evidence, Constable Laing did concede that the operation of the Vehicle by the Accused was for a very brief period of time. The events in question occurred in the late evening so it was dark. The passenger was a person known to Constable Laing through a previous police interaction with that individual.

Subsequent to the arrest, Constable Laing also reconfirmed that, at the time in question, the Accused was a prohibited driver, through accessing databases available in his police cruiser. Evidence of the Accused [ 22 ] The Accused testified that he and his roommate, being the other individual who was found by Constable Laing in the Vehicle, were together in the upstairs residence that they occupied as roommates. He testified that he received a visit from the bar manager with a request that the parked Vehicle, which the Accused had control over, be moved back a foot from the exit door of the pub.

It was the evidence of the Accused that the Vehicle in question was one to which he had access to, but did not have ownership. He also described the Vehicle as a "community car," by which I took it to mean that several other individuals, other than just the Accused, also had access to and the use of that Vehicle. [ 23 ] At the time of this request from the bar manager, the Accused and his roommate were in discussions. They moved down to the Vehicle. The Accused started up the Vehicle.

There was a continuation of the discussions for a few moments between the Accused and his roommate; at that point, the Accused says that he moved the Vehicle back approximately one foot, all in accordance with the request made by the bar manager. It is the evidence of the Accused that at the time that he was moving the Vehicle, he knew that he was a prohibited driver. He testified that he had knowledge of that prohibition, but he also believed, based on his own understanding of the Motor Vehicle Act , that he was permitted to move the Vehicle within the assigned parking stall.

The Accused also testified that he had no intention of moving the Vehicle beyond the assigned parking stall into the main portion of the adjacent parking lot, nor did he intend on leaving the adjacent parking lot as the driver of that Vehicle. [ 24 ] In his evidence, the Accused again confirmed that the reserved parking stall in which the Vehicle was located was specifically assigned to him and that its use by other unauthorized individuals could result in their vehicles being towed from that reserved parking stall location.

It was the evidence of the Accused that he was not certain who had actually parked the Vehicle into the reserved parking stall, again, indicating that in addition to himself, other individuals had access to the Vehicle and apparently had keys to the Vehicle in order to utilize it. [ 25 ] In his evidence, the Accused did concede that the parking lot is generally accessible for patrons of the pub and also conceded that people walked across the parking lot; I take it that it is also conceded from his description that at that time there were other vehicles in the parking lot, which were able to use that general parking facility.

The Applicable Law [ 26 ] Under the definition sections of the Motor Vehicle Act , being s. 1, "highway" is defined in the following fashion: "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 vehicles, 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; [ 27 ]

Section 95 of the Motor Vehicle Act provides as follows: 95(1) A person who drives a motor vehicle on a highway or industrial road knowing that (

a) he or she is prohibited from driving a motor vehicle under

section 91, 92, 93, 94.2, 215, 215.43 or 251(4) commits an offence and is liable, (

c) on a first conviction, to a fine of not less than $500 and not more than $2000 or to imprisonment for not more than 6 months, or to both, and (

d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $500 and not more than $2000 and to imprisonment for not less than 14 days and not more than one year. Crown's Position and Submissions [ 28 ] Crown submits that it has proven all essential elements of the offence. In particular, Crown says that the evidence supports the conclusion that the Accused was driving a motor vehicle on a highway as defined under the Motor Vehicle Act and specifically that the reserved parking stall falls within that definition and that the case authorities support such a conclusion.

In that regard, Crown has placed reliance on the following cases: 1. Lensu v. Victorio , 2019 BCSC 59 , a decision of the Honourable Madam Justice DeWitt-Van Oosten (as she then was of the British Columbia Supreme Court). 2. The decision of Nadeau v. Okanagan Urban Youth & Cultural Association , 2013 BCSC 55 , a decision of the Honourable Mr.

Justice Powers of the Supreme Court of British Columbia. [ 29 ] Crown submits that the analysis contained in Lensu should lead to the conclusion that the reserved parking stall is a “highway” as defined under the Motor Vehicle Act , specifically because it is an area which is designed or intended for use by the general public or used by the general public for the passage of vehicles.

The Crown says that the second portion of the statutory definition also applies to the reserved parking stall and is satisfied here, namely: being a private place or passageway to which the public for the purposes of parking or servicing of vehicles has access or is invited. [ 30 ] In the Lensu decision, Madam Justice DeWitt-Van Oosten notes the factual situation in the case before her at paragraph 163. She was dealing with an accident that occurred in an alley running alongside and between two parkades.

The alley functioned as a lane, right of way, or passageway for both vehicles and pedestrians and it was accessible to members of the public. She noted that vehicles travel along the alley to enter and exit the parkades. Pedestrians also use the alley to access the parkade and retrieve their vehicles.

The learned Justice concluded in the last sentence of paragraph 163: In my view, the alley meets the definition of a "highway" for purposes of ss. 180–182 of the Motor Vehicle Act . [ 31 ] I note that those relevant provisions, under s. 180, deal with the situation when pedestrians are crossing other than at a crosswalk; under s. 181 it deals with the duty of a driver to avoid colliding with a pedestrian who is in what may be regarded as a "highway" area; and then provisions of s. 182(1) deal with pedestrians walking along a highway.

Thus, it was on that basis that the Court accepted that the alley running alongside the two parkades met the definition of a "highway." I am not satisfied that that the Lensu case deals with the same factual circumstances that are before this Court. [ 32 ] The decision in Nadeau v. Okanagan Urban Youth & Cultural Association provides a comprehensive review of a number of case authorities dealing with similar issues as to what amounts to a "highway" under the Motor Vehicle Act .

There is a broad range of factual situations including damages or injuries sustained and whether they occurred on a highway, whether a person was operating the motor vehicle on a highway without a licence, whether a parking lot that was marked as "tenants parking only" or "private" and was an area which fell within the definition of a "highway." [ 33 ] One of the cases canvassed in the Nadeau , at paragraphs 90 and thereafter, is the decision is R. v. McMeekin , [1982] B.C.J. No. 727 , being a decision of the British Columbia County Court.

In that situation, there was an appeal from a conviction under the Motor Vehicle Act of driving without due care and attention: The accident occurred in a parking area of an apartment complex. The accused was making a delivery. The parking lot itself was marked as “tenants parking only” or “private”. There was an area for visitor parking and there were signs indicating the lot was a tow away zone. [ 34 ] In the McMeekin decision, the Court considered the definition of “highway” and the definition of “public” and referred to the decision of R. v. Joe (unreported, 22nd of October, 1969 Vancouver 222/69 (B.C.C.A.)).

Relying upon the decision in McMeekin , the Court in Nadeau came to the following conclusions at paragraph 95 and thereafter: [95] The private property becomes a highway if the public are invited to or have access to it for the purposes of parking or servicing their vehicles. [96] In dealing with this issue, it would be easy to focus on the definition of “public” and whether the particular person was a member of the public.

So long as the private property is used for parking or servicing of vehicles at the invitation of the person who controls it or the public has access to it for those purposes, even if not a specific invitation, it will be a highway. The property remains a highway even if members of the public who are not invited use it as well. It remains a highway even if it is used for other purposes so long as it is also used for the parking or servicing of vehicles again by invitation or as a result of the public having access to the property for those

purposes. [35] Thus, Crown argues that, essentially, the parking stall in question is an area to which the public has access and, notwithstandingthe exclusive reservation of the parking stall for the Accused, that it must be regarded as a "highway" as defined under the Motor VehicleAct. Defence Position and Submissions [36] Defence places considerable reliance on another Supreme Court decision. That decision is Jago v. British Columbia(Superintendent of Motor Vehicles), [2011] B.C.J. No. 2035.

That is a decision of the Honourable Justice Barrow of our Supreme Court.The decision in Jago has been cited and relied upon by other courts in our province including in a decision I recently rendered in R. v.Fast, 2020 B.C.J. No. 2202, 2020 BCPC 256, 2020 CarswellBC 3435. Incidentally, the decision in R. v. Fast necessitated applying thereasoning in Jago in order to determine whether a vehicle found by the police in an enclosed mini-storage complex was a "highway" asdefined in the Motor Vehicle Act.

At the end of the day, I concluded in that decision that it did not meet the definition of a "highway." Inreaching that decision, I relied heavily on the analysis in the Jago decision which I found to be very persuasive. [37] In the Jago decision, Mr. Justice Barrow dealt with a judicial review of the decision of an adjudicator regarding an immediateroadside prohibition under s. 215.41 of the Motor Vehicle Act. The prohibition had been issued when a police officer had observed amotorist backing up his vehicle, turning it around, and then driving down an ungated driveway.

The decision turned on whether or notthe driveway met the s. 1 definition of a "highway" and specifically under s-s. (c). The Court in Jago concluded that the driveway did notmeet the grammatical and ordinary sense of the definition of a "highway." In coming to that conclusion, Justice Barrow reasoned asfollows: [13] The issue posed is one of statutory

interpretation. It is thus apt to begin with Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, where at para. 21, Iacobucci J. adopted the canon of statutory construction expressed by Dreidger inConstruction of Statutes (2nd ed. 1983) at p. 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [14] A significant aspect of the scheme created by the Act for the issuance of roadside driving prohibitions is, for purposes of thisanalysis, that it extends only to drivers found driving or in care or control of a vehicle on a highway or industrial road. People founddriving on private property that does not fall within the definition of “highway” or “industrial road” are not subject to such prohibitions. [15] In its grammatical and ordinary sense, subsection (

c) of the definition of “highway” serves to extend the definition to privatedriveways to which the public has access (or is invited) for the purpose of parking or servicing motor vehicles. As the adjudicatorpointed out, there was no gate or other obstruction at the point where the petitioner’s driveway met Broadwater Road. Even assumingthat the absence of such an obstruction is sufficient to confer access, a proposition that is not free from doubt, access alone is not enough;rather, the definition requires that the access be for the purpose of parking or servicing motor vehicles.

Put in the form of a question, itcomes to this: can it be said that the petitioner’s driveway was open to use by the public for the purpose of parking or servicing vehicles?There is simply no evidence to support that conclusion and thus, in my opinion, the driveway does not meet the grammatical andordinary sense of the definition of “highway”. [16] I am fortified in this conclusion by considering the effect if the result were otherwise, that is, if this driveway were held to be ahighway.

The result, it seems to me, would be that virtually all private driveways, save those with gates or similar obstructions, would behighways. Such a conclusion is not consonant with the intention of the legislature as disclosed by the manner in which they have chosento define the term. It seems to me that the distinction the legislature has sought to draw is between places which are open to use by themotoring public and those that are essentially private.

I recognize that the legislation, and in particular the roadside prohibition scheme itcreates, is aimed at securing the safety of the public using roads and highways. I also recognize the well-grounded concern thatConstable Tait had for the safety of the public based on the petitioner’s condition and his obvious intent. It is that risk which counsel forthe respondent argues supports the conclusion that all private driveways to which the public has access are highways. I am unable toagree.

While it is open to the legislature to extend the reach of the scheme to drivers about to enter a highway, they have, thus far, chosennot to. [17] In addition to the language of the definition, the foregoing conclusion is supported by authority, and in particular the decision ofCowan Co.Ct.J., in R. v. McMeekin (1982), 16 M.V.R. 27 (B.C.Co.Ct.) (a case that Ms. Wolfe on behalf of the respondent very fairlydrew to the court’s attention). The accused in McMeekin was charged with driving without due care and attention under the MotorVehicle Act RSBC 1979, c.288.

She was in a parking lot of an apartment complex when she had an accident. The parking lot was postedwith signs indicating that it was for tenants’ parking only. Ms. McMeekin was convicted at trial and she appealed. The only issue waswhether the parking lot was a “highway” within the definition found in the 1979 version of the Act.

The definition of highway in thatversion of the Act is the same as the current definition, except that the former was not divided into subparagraphs. [38] The decision in Jago then goes on to analyze the decision in McMeekin which was persuasive in the conclusions reached byJustice Barrow in Jago. Hence, based on that authority, defence says that I should accept that with respect to the reserved parking stall,that it does not meet the definition requirements of s.s (b). Furthermore there is not access as contemplated under s-s. (

c) of the definition,and it is not a “highway” because it is not a private place or passageway to which the public for the purposes of parking or servicing ofvehicles has access or is invited.

In other words, it is not the “public” and it is only the Accused or persons authorized by him who havethe access to or an invitation to the reserved parking stall. [39] That said, there is no evidence that the motor vehicle driven by the Accused actually moved out of the reserved parking stall areaand into the general flow of the remaining portion of the parking lot surrounding the Oak and Carriage Pub, which is accessible to andused by the general public.

Defence does concede that had the Vehicle moved into that area, then it may very well have been into a"highway" as defined by the Motor Vehicle Act, being an area where under s-s. (

b) that was designed or was intended for use by thegeneral public or for the passage of vehicles, or even possibly falling within the definition found in s-s. (c).

[ 40 ] Hence, it is defence's position that Crown has failed to prove an essential element of the offence, namely that the Accused drove a motor vehicle on a "highway", as defined under the Motor Vehicle Act . Analysis [ 41 ] I found the evidence of the police officers who testified to be reliable. They answered questions in a forthright manner. Constable Laing was quick to admit there were times when he had no recollection of certain facts which were put to him. In my mind, he came across as both a credible and reliable witness. [ 42 ] The Accused at times was argumentative with Crown counsel.

There were times when the Accused stated he had no recollection of certain events which included the certain times and the circumstances that he received notices confirming his prohibition from driving under the Motor Vehicle Act . On balance, though, his evidence about his exclusive assigned use of the parking stall for his residence is not contradicted. His evidence is supported by some of the observations made by Constable Laing.

His evidence is also supported by some of the photographic evidence that has been entered in this case. [ 43 ] Having regard to the W.(D.) formulation, on balance and for the most part, I accept his evidence as unchallenged. I do not find that I can reject his evidence with respect to either his intent or the circumstances surrounding the exclusive assignment of the motor vehicle parking stall to him, nor about his intention not to move Vehicle beyond the confines of the assigned parking spot. [ 44 ] The situation before this Court is admittedly different than before the Court in the Jago decision.

Jago was a driveway. This was a parking stall adjacent to what appears to be an area that falls within the definition provisions of paragraph (

b) and/or (

c) of the Motor Vehicle Act . Unlike the situation in R. v. Fast , there was no gates surrounding this particular stall nor other means to isolate it from access to or use by the general public. However, it is accepted by both Crown and defence that that there was clear notification by way of signage indicating that this particular parking stall was a 24-hour reserved parking area and that the tow-away signs provided a clear message to any potential unauthorized user that their vehicle would be subject to being removed from that location. [ 45 ] The definition contained under s-s. (

c) is precise in its language. In order for this parking stall to fall into the general scheme…. pausing for a moment. I am sorry? [ 46 ] UNIDENTIFIED VOICE: I am sorry. [ 47 ] THE COURT: Thank you. [ 48 ] In order for this parking stall to fall within the general scheme of a highway, I would have to be satisfied that this parking stall is a private place to which the public for the purposes of parking or servicing vehicles has access or is invited.

I can conclude based on the evidence before me that the Accused had that right, but it was an exclusive right that he enjoyed in conjunction with his tenancy of his residential premises located above the pub and there was not a public right of access nor a public invitation for those purposes.

Conclusion [ 49 ] Based on all of the foregoing, I am not satisfied the Crown has discharged its burden beyond a reasonable doubt to establish that the reserve parking stall was a "highway" as defined under the Motor Vehicle Act . [ 50 ] I am also not satisfied, of course, that Crown has proven that the Accused was therefore driving a motor vehicle while prohibited on a "highway" as defined under the Motor Vehicle Act and as required by the provisions of that Act . [ 51 ] Accordingly, I acquit Mr. Jarvis on the charge found on Count 1 of the information. (REASONS FOR JUDGMENT CONCLUDED)