R. v. Halliday, 2022 BCPC 171

Citation: R. v. Halliday 2022 BCPC 171 Date: 20220818 File No: 43422-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM ALLISON HALLIDAY CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: J. Mickelson Counsel for the Defendant: D. Marion, Q.C. Place of Hearing: Campbell River , B.C. Date of Hearing: June 1, 2022 Date of Judgment: August 18 2022

A Corrigendum was released by the Court on August 29, 2022. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction: [ 1 ] On August 16, 2021, Mr. Halliday was, by order of Judge Hutcheson, prohibited from operating a motor vehicle on any street, road, highway or other public place for two years. As a result of events that occurred on November 28, 2021, Mr. Halliday finds himself charged with operating a motor vehicle while prohibited from doing so under Judge Hutcheson’s order, contrary to s. 320.18 of the Criminal Code . [ 2 ] Mr.

Halliday lives in a house at 846 Sullivan Road, Sayward, BC. Sullivan Road is north of Sayward and intersects with highway 19. While he admits that on that day he was driving his vehicle, a pick-up truck, on Sullivan Road, he was not prohibited from driving on a private road and that portion of Sullivan Road, on which he was driving, being a private road, is not subject to the driving prohibition. Mr.

Halliday’s assertion is that if I find he drove to the end of Sullivan Road, onto a paved portion, he was driving on a “highway”. [ 3 ] The Crown asserts that no part of Sullivan Road is a private road and the evidence establishes that it does fall within the prohibited activity. [ 4 ] The relevant

section of the Criminal Code under which Mr. Halliday is charged states the following: Operation while prohibited 320.18

(1) Everyone commits an offence who operates a conveyance while prohibited from doing so o (

a) by an order made under this Act; [ 5 ]

Section 320.81(1) of the Criminal Code provides the parameters of a driving prohibition as follows: Application — public place

(8) A prohibition order in respect of a motor vehicle applies only to its operation on a street, road or highway or in any other public place. [ 6 ] The Criminal Code defines highway at s. 2 in the following manner: … highway means a road to which the public has the right of access, and includes bridges over which or tunnels through which a road passes. [ 7 ] Mr.

Halliday urges the Court to adopt the definition of “highway” under the Motor Vehicle Act and the jurisprudence that has considered that definition in that context and asserts that he was operating on a private driveway and therefore was not driving contrary to Judge Hutcheson’s order. [ 8 ] The definition of highway under the Motor Vehicle Act states that: "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. [ 9 ] Highway is defined under the Transportation Act as follows: "highway" means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following: (

a) deposit of a subdivision, reference or explanatory plan in a land title office under

section 107 of the Land Title Act ; (

b) a public expenditure to which

section 42 applies; (

c) a common law dedication made by the government or any other person; (

d) declaration, by notice in the Gazette, made before December 24, 1987; (

e) in the case of a road, colouring, outlining or designating the road on a record in such a way that

section 13 or 57 of the Land Act applies to that road; (

f) an order under section 56 (2) of this Act; (

g) any other prescribed means; [ 10 ]

Section 42 of the Transportation Act (BC) states that:

Division 1 — New Highways Travelled roads becoming highways 42 (1)Subject to subsection (2), if public money is spent on a travelled road that is not a highway, the travelled road is deemed anddeclared to be a highway. (2)Subsection (1) does not apply to any road or class of roads, or to any expenditure or class of expenditures, that is prescribed by theregulations. [11] The only basis on which an otherwise “private road” would become a highway pursuant to the Motor Vehicle Act, by virtue of itsadoption of the meaning of a highway under the Transportation Act, is if there is a public expenditure which would include things suchas snow clearing, grading, general maintenance or other expenditures of public money.

There was no evidence in this case about whetherthere were any public expenditures on Sullivan Road. [12] With the legislative context in mind, I turn now to the evidence. I heard evidence from Cst. Babala and Mr. Halliday. There is aconflict in the evidence and I am mindful of the principles I must apply as set out in the leading cases of R. v. W.D., (SCC), [1991] 1 S.C.R. 742 and R. v. CWH, [1991] B.C.J. No. 2735. [13] Sullivan Road intersects with Highway 19 and is north of the intersection of Highway 19 and the gas station and store (theStore).

The Store is located on highway 19 and another highway that leads to the village of Sayward. There was no evidence about thedistance between Sullivan Road and the store. Photographs of the first part of Sullivan Road were introduced as evidence in the trial. Atthe corner of the intersection of Sullivan Road and Hwy 19, there is a community mail box and a covered shed used for people who livein this area to place their garbage. A stop sign is also present for drivers using Sullivan Road who are about to enter Highway 19 and aroad sign that says “Sullivan Road”.

Photographs of Sullivan Road show that it curves to the left upon entering it from Highway 19. [14] Cst. Babala is an RCMP officer of some 18 years’ experience. She was working in Sayward that day and in uniform and driving amarked police vehicle. She was asked to look into reports that Mr. Halliday had been seen driving and was advised that he was aprohibited driver, drove a blue and grey older Ford pick-up truck and lived at 846 Sullivan Road. She was able to see a photograph ofhim when she ran checks. Identity is not an issue. [15] That morning she drove to Mr. Halliday’s residence on Sullivan Road.

She drove the entire length of Sullivan Road which shedescribed as a dirt and gravel road. She saw a two toned blue and grey older ford pick-up – with no rear licence plate, parked “nose in”into the driveway at the residence. [16] She left and returned in the early afternoon and saw that the truck was still in the same position. She set up covert surveillance atthe end of the roadway by Highway 19 to see if Mr. Halliday would drive and parked on Sullivan Road facing towards Highway 19.

Asshe was waiting, she saw 3 unrelated vehicles drive onto or leave Sullivan Road. [17] About 50 minutes after she set up surveillance, she decided to leave and turned south (left from her position) onto Hwy 19. Asshe was doing so, she described that she saw Mr. Halliday’s truck leave his driveway and drive down Sullivan Road. She did a U-turn togo north on the highway and saw that Mr. Halliday’s truck had stopped at the end of Sullivan Road and Hwy 19. As she was passingnorthbound, she saw him get out of the driver’s seat and go to the mailboxes.

She described that his truck was parked by the garbageshed and mailbox. [18] She did another U-turn southbound and turned into Sullivan Road. She activated her police lights. As she did so, she saw Mr.Halliday get back into his truck and reverse his truck on Sullivan Road, ultimately reversing and stopping in an area that is wider thanSullivan Road and appears to what could be described as a large shoulder area or clearing. [19] She pulled in front of his vehicle and spoke to him.

She told him he was not allowed to be driving and she testified that Mr.Halliday replied that he was going to get his mail and he was told he could get his mail because it was his driveway or part of hisdriveway. This statement was ruled voluntary during a voir dire and was admitted into the trial proper by consent. Mr. Halliday deniedthat he made this statement to Cst. Babala. She noted that the box of the truck was full of garbage bags. [20] According to Cst. Babala, Sullivan Road is .6 km in length and there are a total of 5 residences including Mr.

Halliday’sresidence. [21] At the apex of the curve, there is a residence on a sizeable piece of land with a fence and gate. This property has a driveway thatbranches off Sullivan Road from a widened area then continues through the gate up to the house itself. [22] Mr Halliday’s house is located around this corner and, according to Cst. Babala, is .5 km from Highway 19. It cannot be seen inthe photographs. [23] Mr. Halliday testified that he rents a house from Mr. Schmidt who owns the land on which the house he rents is located.

On theday in question, he says that he was intending to take the garbage from his house to the garbage shed. He had garbage bags full of foodproducts that had thawed and “gone bad” when his freezer stopped working. It was extremely odoriferous – as he said, it was “leakinggross stuff”. The clearing where he stopped can be seen in the photographs. It is quite some distance from the garbage shed/mailboxesalthough there were no measurements in evidence. He said he was “being lazy” and that is why he drove to that spot with the garbage inthe back of his truck. [24] According to Mr.

Halliday, he also had to go to the local store to call his wife who was away. He was intending on walking thereto get a cell phone signal and then walk back to Sullivan Road and then throw out the odorous garbage. According to Mr. Halliday, thewalk is 30 minutes each way, so the entire walk alone would be a minimum of an hour.

[ 25 ] He testified that he drove his truck from his house down Sullivan Road towards Highway 19. He testified that his private driveway extends all the way along Sullivan Road until the area where the shed and mailboxes are located and which is paved. Essentially, he says that the gravelled portion of Sullivan Road is a private driveway and it is only the paved portion next to Highway 19 that is a highway. If driving on Sullivan Road from his residence towards highway 19, there is an area where Sullivan Road is wider just before the apex of the curve.

This is also in the vicinity of the gate and driveway entrance to the house I mentioned earlier. Mr. Halliday said usually someone else’s trailer is parked there and he has used it “a couple of times” to park or he has “pushed” his truck there. [ 26 ] He testified that he did not drive his truck any farther along Sullivan Road and was “many meters before the paved area”. He was very clear in his evidence that he did not drive beyond the clearing. When he was stopped by Cst. Babala, his evidence is that he asked her how she could arrest him for driving on private property.

He denied that he told her he was getting his mail from the mailbox. [ 27 ] He denied that he reversed his truck along Sullivan Road from where the community mail box and shed are located. Rather, he maintained that he backed into that “driveway” or “pull off” and never “went to the end of the road.” [ 28 ] According to Mr. Halliday, one residence in the area is occupied by Mr. Schmidt, one occupied by a neighbour with whom Mr. Halliday is not very familiar, and another occupied by Mr. Schmidt’s son. I couldn’t conclude from the evidence who owns or occupies the 5 th residence. Mr.

Halliday attempted to establish that Sullivan Road is Mr. Schmidt’s private road. [ 29 ] He was asked if the other houses in his area have a driveway and he said no, just his and the one above him and that “the driveway is the driveway or the road – goes straight up to our property – into our house and turns left and then into their house – enough room to fit one car.” He testified, in cross examination, that someone driving past his house would “stay on the road, driveway, veer left and go straight ahead.

I guess technically you go off the road to go to our house.” Discussion: [ 30 ] Some of the evidence is consistent – Mr. Halliday says he backed into the area I refer to as the wide clearing along Sullivan Road which is consistent with Cst. Babala’s evidence that she saw Mr. Halliday reversing his truck. It is also consistent with Cst. Babala’s evidence about where Mr. Halliday stopped his truck after she turned onto Sullivan Road and activated the lights of her police vehicle. [ 31 ] The balance of the evidence is inconsistent. [ 32 ] I find it difficult to accept Mr. Halliday’s evidence.

There are a few reasons for this. He testified that the reason he drove from his residence to the clearing some distance from the garbage shed was because he was feeling lazy that day. However, he had to walk all the way from Sullivan Road to the gas station and store, which according to him was a 30 minute walk each way. He testified that the bags of garbage were very odoriferous and yet, according to him, he was going to park his truck with the smelly leaky garbage in the back of his truck, walk to the gas station store and walk back, a total of about an hour.

I find it somewhat challenging to accept that he would leave it in his truck for at least an hour and walk by the garbage shed without dumping the garbage. [ 33 ] It is also difficult to accept his evidence that he drove down Sullivan Road, with a truck containing full garbage bags and leaking noxious foul liquids but stopped just before the apex of the curve where the clearing is – near where the gate and driveway enter another property - and “many meters away” from the garbage shed. Looking at the photographs, it is still some distance to walk to the garbage shed.

As I understand his evidence, the gravelled part of Sullivan Road ends just before the garbage shed, and mail box.

According to his theory, he could have stopped on the gravelled portion of the road much closer to the garbage shed and still be on his private driveway. [ 34 ] On his version of events, after walking to the store, he would walk back to the truck, pick up the bags of garbage, walk “many metres” to the garbage shed, dump the garbage, then walk those “many metres” back to his parked truck and then drive back to his residence. [ 35 ] Most difficult to accept is his evidence that he parked his truck (so he could walk to the store and eventually dispose of the garbage) by backing into the clearing area off the main travelled portion of Sullivan Road.

I have looked at the photograph showing where he eventually stopped. There is a considerable amount of clearing space for a pick-up truck. He testified that someone else often parked his trailer there. It would have been very easy to simply pull into that area by driving forward, rather than backing in. In my view, his evidence was tailored to conform with Cst. Babala’s evidence that she saw him backing up after she turned on her emergency police lights. [ 36 ] In assessing the credibility of Mr.

Halliday’s evidence, I am entitled to consider that he has a lengthy criminal record involving offences of theft, possession of stolen property, break and enter, personation with intent to gain advantage, and a variety of offences involving fraud including identity theft, possessing or use of a stolen credit card. These are all offences of dishonesty and I approach his evidence with a great deal of caution. This, coupled with the other evidence I find troubling, and to which I have just referred, lead me to the conclusion that I am not able accept his evidence and where it differs from that of Cst.

Babala, I prefer hers. [ 37 ] Cst. Babala was able to see the pick-up truck – she could identify it as belonging to Mr. Halliday. She had a clear view of his truck stopped by the shed and mail box area at the end of Sullivan Road. I am not certain that she could actually see him leave his residence and this was not explored further, but I accept that as she was turning left, or southbound, onto highway 19, she saw his truck being driven down Sullivan Road towards Highway 19 and parked beside the garbage shed and mailbox area. [ 38 ] I conclude that Mr.

Halliday drove his truck to the end of Sullivan Road to the area where the shed and community mailboxes are located. [ 39 ] However, I have also gone on to consider whether or not Crown has established beyond a reasonable doubt that the gravel portion Sullivan Road is a “street, road or highway” as intended by Judge Hutcheson’s Prohibition Order. [ 40 ] There are no photographs of Mr. Halliday’s property but his evidence is that a person would drive off the main part of Sullivan Road, “technically” as he stated, to enter onto his property. I accept that Sullivan Road is used by all the occupants in the area, and

implicitly, their guests, to access their residences. The photographs, for example, show that the first residence has a long driveway thatintersects with Sullivan Road. There are no photographs of Sullivan Road beyond where Mr. Halliday stopped his vehicle in the clearingwhich makes it more difficult to assess whether it is a private driveway or a road or highway used to access a driveway. There are nophotographs of Mr. Halliday’s residence which would show how he accesses his residence from Sullivan Road. [41] I have considered the authorities provided by Mr.

Halliday although I keep in mind that all those authorities were interpreting thedefinition of highway under the Motor Vehicle Act. However, there is overlap in the definition of highway under the Criminal Code andthe Motor Vehicle Act case law is of some assistance. [42] The analysis by Justice Barrow in R v. Jago, 2011 BCSC 1454 is of assistance. In that case, Mr. Jago was found driving on a 300metre long driveway.

It led directly to a residence and serviced two residences on the same property. [43] Of significance in Jago, is that the driveway in question connected with Broadwater Road which was the address for theresidence. In other words, the driveway was only accessible from a road. It did not matter if there was no gate or other obstruction at thepoint where the driveway met Broadwater Road. At paragraph 18 Justice Barrow concluded that Mr.

Jago’s driveway was not a highwaybecause, if it were otherwise, “virtually all private driveways, save those with gates or similar obstructions, would be highways.” [44] At paragraph 21, Justice Barrow phrased the issue in this manner: The issue remains whether the driveway passageway was a passageway to which the public, for the purpose of the parking or servicingof vehicles, had access or was invited. [45] To that I would add that, adopting the definition of highway under the Motor Vehicle Act, the issue is whether Sullivan Road wasdesigned or intended for or used by the general public for the passage of vehicles.

Using the definition of highway under the CriminalCode, the issue is whether Sullivan Road is a road to which the public have a right of access. [46] A 24 hour clearly marked, reserved parking stall in a parking lot assigned exclusively to a tenant is not a highway because no oneelse has a right to travel in it: R. v. Jarvis, 2021 BCPC 223. [47] A lot in an enclosed mini-storage complex was not a highway: R. v. Fast, 2020 BCPC 256 , 2020 B.C.J.

No. 2202. [48] A campsite road that intersected with a highway was available to the public in the sense it was available to campers using thecampground, but it was not available to the general public and it was therefore not a highway as defined in the Motor Vehicle Act: R. v.R., 2012 BCPC 3 . [49] The road at issue here is marked by a street sign that says “Sullivan Road” near where it intersects with Highway 19 There maybe a paved area at the end of Sullivan Road for the residents who live in the area to place garbage and retrieve their mail.

A stop sign hasbeen placed at the end of Sullivan Road where it intersects with highway 19. Mr. Halliday asserts that only this portion of Sullivan Roadis a highway as defined in the Motor Vehicle Act. [50] There was no evidence that Sullivan Road would be deemed to be a highway by virtue of S. 42 of the Transportation Act becausepublic money was spent on it. [51] Neither the Motor Vehicle Act nor the Criminal Code defines “street or road”. [52] I was not provided with case law on the application of jurisprudence relevant to the definition of highway under the CriminalCode in a case such as this.

The legislation is distinct and serves different purposes, although the object of both the Criminal Code andthe Motor Vehicle Act is to regulate and govern the behaviour of citizens on highways, roads or streets for the protection of thecommunity. Its object is to prevent unlicensed, prohibited or suspended drivers from driving. [53] While these cases may seem straightforward, and that a common sense

interpretation of a road, street or highway would seemquite simple, in reality they are not easy cases to grapple with. This must be one of the types of cases of which it could be said there hasbeen much judicial ink spilled in an attempt to interpret the applicable legislation and the meaning of a “highway or a road.” [54] The case authorities differentiate between “general public” referred to in s. 1(

b) of the Motor Vehicle Act and “public” in s. 1 (c).The term “highway” in s. 1 states that highway “includes” the listed

definitions. The Criminal Code refers to a highway as a road towhich the public has the right of access. [55] Based on my review of the legal authorities relating to the Motor Vehicle Act, Sullivan Road is not necessarily a highway justbecause the residents in the area use Sullivan Road to access their homes. In Motor Vehicle Act cases, Crown must establish that SullivanRoad was designed or intended for or used by the general public for the passage of vehicles.

However, using the definition of highwayunder the Criminal Code, that Sullivan Road is a road to which the public have a right of access. [56] In this case, and referring to the definition in the Criminal Code, which in my view is the governing statute, the meaning of theword “public” takes on considerable significance. Are the people who have residences along Sullivan Road members of the public?Parliament chose not to use the word “general public” found in the

definitions in the Motor Vehicle Act and which would imply a largercohort. [57] The people who reside along Sullivan Road certainly have a right of access. [58] The Criminal Code definition of highway does not define “public”. If I conclude that the people who live on Sullivan Road arenot “the public with a right of access”, that would result in them not having the protection of a law designed to prevent unlicensed orprohibited drivers from driving on Sullivan Road near their residences. I add that such drivers would also be uninsured. Such aconclusion would mean that many people who reside on roads in rural areas would also be exposed to unlicensed and uninsured drivers

using the roads near their homes. In my view, that would be an unintended result of the legislation. [59] I conclude that whether or not there are other “driveways” or paths that lead from Sullivan Road to the various residences, thatthe people who live along it are members of the public. [60] I also conclude that Sullivan Road is a road and not a private driveway – first there is a sign that says it is a road.

A road isdefined in the Merriam Webster dictionary as: an open way for vehicles, persons, and animals especially: one lying outside of an urbandistrict. [61] A road is defined in the Oxford Dictionary as: a hard surface built for vehicles to travel on. [62] The Cambridge dictionary defines it as: a long, hard surface built for vehicles to travel along. [63] All these descriptions aptly describe Sullivan Road.

Whether it is gravel, dirt, or paved, Sullivan Road is a hard surface, it hassome length, and it was certainly built for vehicles to travel on. [64] I have concluded that Sullivan Road is a road, that the public includes the people who live along Sullivan Road, and that theyhave a right of access. [65] In the result, I am satisfied beyond a reasonable doubt that Sullivan Road is a highway as defined in the Criminal Code. [66] Even if I was incorrect about this finding, utilizing the

definitions of highway in the Motor Vehicle Act, I conclude that SullivanRoad in this case is quite distinct from the “driveway” in Jago and it is clearly not a parking stall (Jarvis) or an enclosed lot (Fast) or acampsite road (R. v R). [67] In conclusion, I find that Mr. Halliday’s vehicle was driven or operated on Sullivan Road, that he drove to the garbage shed andcommunity mail boxes on the day in question. In my view, differentiating between what Mr. Halliday says is the gravelled portion andthe smaller paved portion is not relevant.

Accordingly, I find him guilty of the offence of driving a motor vehicle on a highway contraryto the prohibition order of Judge Hutcheson. __________________________ ___________ The Honourable Judge Flewelling Provincial Court Judge CORRIGENDUM - Released – August 29, 2022 In the Reasons for Judgment dated August 18, 2022, the following changes have been made: [1] Paragraph [11] has been amended from: [11] The only basis on which an otherwise “private road” would become a highway pursuant to the Motor Vehicle Act, by virtue of itsadoption of the meaning of, thecnically a shighway under the Transportation Act, is if there is a public expenditure which would includethings such as snow clearing, grading, general maintenance or other expenditures of public money.

There was no evidence in this caseabout whether there were any public expenditures on Sullivan Road. To read as follows: [11] The only basis on which an otherwise “private road” would become a highway pursuant to the Motor Vehicle Act, by virtue of itsadoption of the meaning of a highway under the Transportation Act, is if there is a public expenditure which would include things suchas snow clearing, grading, general maintenance or other expenditures of public money.

There was no evidence in this case about whetherthere were any public expenditures on Sullivan Road. [2] Paragraph [47] has been amended from: [47] A lot in an enclosed mini-storage complex was not a highway: R. v. Fast, 2020 BCPC 256 , 2020 B.C.J. No. 2202themeaning of . To read as follows: [47] A lot in an enclosed mini-storage complex was not a highway: R. v. Fast, 2020 BCPC 256 , 2020 B.C.J. No. 2202.

_____________________________________ The Honourable Judge Flewelling