R. v. Sipes Date:, 2012 BCPC 17

Citation: R. v. Sipes Date: 20120130 2012 BCPC 0017 File No: 57091-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONALD WILLIAM SIPES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J. RODGERS Counsel for the Crown: David McCormick Counsel for the Defendant: John Green Place of Hearing: North Vancouver, B.C. Date of Hearing: December 6, 2011 and January 4, 2012 Date of Judgment: January 30, 2012 [ 1 ] Does a person commit the offense of “obstruction of a peace officer” contrary to

section 129 (

a) of the Criminal Code when the person refuses to provide his residential address so that the officer may complete a violation ticket alleging an offence under the Motor Vehicle Act ? [ 2 ] On the 29 th of July, 2011, Cpl. Johnk and Cst. McLeod of the North Vancouver Detachment of the RCMP were conducting foot patrols near the intersection of Chesterfield Avenue and 3 rd Street in North Vancouver.

The intersection is controlled by signal lights and there are pedestrian cross walks for pedestrians travelling north and south on Chesterfield Avenue or east and west on 3 rd Street. [ 3 ] At approximately 4:10 p.m., Cpl. Johnk saw Mr. Sipes walk from the east side of Chesterfield Avenue to the west side across the traffic lanes. It is disputed exactly where it was that Mr. Sipes crossed Chesterfield Avenue. Cpl. Johnk estimated that Mr. Sipes was 10 metres north of the crosswalk at 3 rd Street; Cst. McLeod estimated Mr. Sipes was 10 to 15 metres north of the crosswalk; and Mr.

Sipes testified he was almost 40 metres north of the crosswalk. [ 4 ] Cpl. Johnk called to Mr. Sipes who stopped on the sidewalk on the west side of Chesterfield Ave. The officer walked to Mr. Sipes with the intention of warning him about jaywalking. Cpl. Johnk had not previously met Mr. Sipes but Mr. Sipes immediately became belligerent and responded with what the officer described as a “verbal barrage”. [ 5 ] Cpl. Johnk told Mr. Sipes that he would be issued a violation ticket for “jaywalking” contrary to

section 133 of the Motor Vehicle Act . He asked Mr. Sipes for some identification documents but Mr. Sipes did not have any identification with him. [ 6 ] The officer asked Mr. Sipes for his name and Mr. Sipes immediately provided his name. Cpl. Johnk noticed the name tag on Mr. Sipes shirt spelled his name “Sypes” rather than “Sipes”. Mr. Sipes explained that his employer had misspelled his name on the name tag. [ 7 ] Cpl. Johnk then asked Mr. Sipes to provide his residential address. Mr. Sipes refused. He told the officer that after giving his name he was not required by law to provide any further personal information. Cpl. Johnk told Mr. Sipes that if he did not provide his

residential address then he would be arrested for the criminal charge of “obstruction”. Mr. Sipes again refused to give his residentialaddress and he was placed under arrest by Cpl. Johnk. [8]

Section 129(

a) of the Criminal Code states: Every one who ... wilfully obstructs a ... peace officer in the execution of his duty ...is guilty of... an offence punishable on

summaryconviction. [9] The offence of obstruction of a peace officer was considered by the Supreme Court of Canada in R. v. Moore (SCC), [1979] 1 S.C.R. 195. In that case a peace officer saw the accused go through a red light while riding a bicycle and stopped himfor the purpose of ticketing under

section 126 of the Motor Vehicle Act. The accused refused to give his name. [10] At paragraph 17 the Court held: ... Constable Sutherland could have arrested Moore for the

summary conviction offence of proceeding against a red light only if it werenecessary to establish his identity. The constable, therefore, in requesting that ... Moore identify himself, was carrying out the duty ofenforcing the law of the province in this

summary conviction matter by attempting to identify the accused person so that he mightproceed to lay an information or take the more modern form permitted under said

Summary Convictions Act of British Columbia, ofissuing a ticket. [11] At paragraph 18 the Court held: I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when ... Moore refused to accede to theconstable’s request for his identification, he was obstructing that constable in the performance of his duties.

As did the members of theCourt of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable onduty observed the appellant in the act of committing an infraction of the Statute and that the constable had no power to arrest the accusedfor such offence unless and until he had attempted to identify the accused so that he might be the subject of

summary convictionproceedings. [12] At paragraph 20 the Court held: ...

I am of the opinion that the officer was under a duty to attempt to identify the wrongdoer and the failure to identify himself by thewrongdoer did constitute an obstruction of the police officer in the performance of his duties. [13] At paragraph 21, while considering the provisions of The Charter of Rights the Court held: ... but I am of the opinion that there is not even minimal interference with any freedom of a citizen who is seen committing an infractionby a police constable in the police constable’s simply requesting his name and address without any attempt to obtain from that personany admission of fault or any comment whatsoever.

On the other hand, the refusal of a citizen to indentify himself under suchcircumstances causes a major inconvenience and obstruction of the police in carrying out their proper duties, so that if anyone wereengaged in the balancing of interest, there could be no doubt that the conclusion to which I have come would be that supported by theoverwhelming public interest. [14] The decision of R. v. Moore was applied recently in R. v.

Virani 2011, BCSC 1032, wherein the Court held at paragraph 65: In my view, Moore stands for this: when an officer sees someone commit an offense and the law they are enforcing requires the lawbreaker to give their name and address to the officer, their refusal to do so can become a

section 129 obstruction. [15] In the circumstances of this case, and applying the Decisions of Moore (op cit) and Virani (op cit), I find that Mr Sipescommitted the offence of “obstruction of a peace officer” contrary to

section 129 of the Criminal Code by refusing to provide hisresidential address to Cpl. Johnk. [16] As an alternative, Mr Sipes submitted that the Court must first decide whether the Crown had proven the offence of jaywalkingbefore considering the obstruction charge. It was submitted that if the jaywalking charge was not proven then the obstruction charge must fail. I do not agree. Cpl. Johnk saw Mr. Sipes cross Chesterfield Avenue some distance from the crosswalk at 3rd Street.

Applyingthe decision of the Supreme Court in Moore (op cit), I find this observation gave Cpl Johnk the reasonable grounds to issue a violationticket. [17] In the event that I am wrong concerning this submission by Mr Sipes, I will consider whether the Crown could have provenbeyond a reasonable doubt that Mr. Sipes committed the offence of jaywalking contrary to

section 133 of the Motor Vehicle Act. [18] The Motor Vehicle Act, s. 133 states: Where a pedestrian is instructed or permitted by a traffic control signal to enter or to proceed across a roadway, he or she must do so (

a) at an intersection, only in a marked or unmarked crosswalk, and (

b) at a place other than an intersection in the vicinity of which there is a marked crosswalk, only in the crosswalk. [19] Mr. Sipes submitted he was not “in the vicinity” of a crosswalk when he crossed Chesterfield Avenue and therefore was notbound to cross the roadway at the crosswalk. Mr. Sipes referred to

section 180 of the Motor Vehicle Act which states: When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle. [20] Mr. Sipes says this

section of the Motor Vehicle Act makes it lawful for a person to cross a roadway once that person is no

longer “in the vicinity” of a crosswalk provided that the person yields to vehicle traffic in the roadway. [ 21 ] Mr. Sipes testified that he chose to cross Chesterfield Avenue at a point north of the crosswalk at 3 rd Street because he wished to avoid Cpl. Johnk and Cst. McLeod who were standing near the crosswalk. Even if I accept the evidence of Mr. Sipes that he was some 40 metres from the crosswalk when he crossed Chesterfield Avenue, he had deliberately chosen not to use the crosswalk at 3 rd Street. Accordingly, I would have found that when Mr Sipes crossed Chesterfield Ave. he was “in the vicinity” of a crosswalk and convicted Mr. Sipes of the offence of jaywalking under

section 133 of the Motor Vehicle Act . [ 22 ] For the foregoing reasons I find Mr. Sipes guilty of the offence of “obstruction of a peace officer” contrary to

section 129 of the Criminal Code . _________________________________ The Honourable Judge W. J. Rodgers Provincial Court of British Columbia