R. v. Anderson Date:, 2012 BCPC 429

Citation: R. v. Anderson Date: 20121127 2012 BCPC 0429 File No: 77310-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER WILLIAM ANDERSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. Thomson Appearing in person: C. W. Anderson Place of Hearing: Abbotsford , B.C. Date of Hearing: November 9, 2012 Date of Judgment: November 27, 2012

[1] The Accused Christopher William Anderson is charged with the offence of driving while prohibited contrary to

section 95.1 ofthe Motor Vehicle Act of British Columbia. The facts of this matter are not in dispute. The Accused admits most of the essential elementsof the offence. Specifically, he admits that on March 5, 2012 he was stopped by Constable Dyck of the Abbotsford Police Departmentafter he was seen driving an extended cab pickup truck a short distance on Harris Road in a rural area of Abbotsford, BC.

He does notdeny being the driver of the vehicle and he also does not deny that at the time of the driving he was prohibited from driving in BritishColumbia under the Motor Vehicle Act and that he had knowledge of that prohibition. [2] The Accused advances a defence of necessity. He testified that prior to being stopped by the police officer, he had been apassenger in the vehicle which belonged to and was being driven by his friend Douglas Gordon Stark. The vehicle had mechanicaldifficulty and stopped just at the crest of a hill on Harris Road. After failed attempts to start the vehicle, Mr.

Stark left to get help,leaving the Accused in front the passenger’s seat and leaving the vehicle with its hazard lights flashing. Mr. Stark also testified that thiswas the case, and the Crown has no reason to dispute this version of events. [3] The Accused testified that after sitting in the vehicle for a while, it became apparent to him that the vehicle had stalled in adangerous place. Vehicles advancing along Harris Road from the opposite direction could not detect the vehicle over the crest of the hilland the potential for a serious accident existed if the vehicle was not moved.

He testified that some vehicles had to swerve to avoidstriking it. He testified that he decided to move the vehicle a short distance in order to pull into the next driveway so that the vehiclewould not pose a danger to other motorists. He had intended to coast the vehicle down the hill and was able to do so. As he was coastingdownhill he was able to get it running by popping the clutch, bypassing an apparent problem with the battery. He testified that he drove avery short distance, but had not yet reached a safe driveway when he was spotted by Constable Dyck.

He pulled the vehicle over,following which he dealt with Constable Dyck. [4] Constable Dyck acknowledged in his evidence that Harris Road is a two-lane highway without shoulders. He also testified thatthe Accused had actually pulled the vehicle over and gotten out of the vehicle after the Constable had made a u-turn but before beingpulled over. In other words Constable Dyck did not have to initiate the stop. [5] The Accused’s evidence was not contradicted by the Crown evidence.

His credibility is bolstered by the fact that he wasextremely respectful to the Court, to the Crown and to the arresting officer, and he was very quick to admit those aspects of the evidencewhich were harmful to his case. The Crown concedes that what the Accused is saying may be true, and the question is whether or notthese facts afford him the defence of necessity. Decision on the matter was reserved in order to allow for a better understanding of thedefence of necessity and when it is applicable. [6] The Supreme Court of Canada has set out the three components of the defence of necessity in R. v.

Perka (SCC), [1984] 2 SCR 232 and R. v. Latimer 2001 SCC 1 , [2001] 1 SCR 3 as follows: 1. There must be a requirement of imminent peril or danger; 2. The accused must have no reasonable alternative to the course of action taken; and 3. There must be proportionality between the harm inflicted and the harm avoided. [7] For the first requirement to apply there must be imminent peril which is not foreseeable or avoidable. In this case, the evidenceis that the Accused was not driving when the vehicle broke down. He was not in a position to control where the vehicle stalled, or endedup on the road.

It was not his vehicle to maintain, so he can not be blamed for the vehicle stalling in the first place. He was neither in aposition to foresee the peril which resulted, or to prevent it or avoid it. [8] On the second requirement for the defence, in considering the alternatives open to the Accused, one must consider whethersuch alternatives are reasonable or not. In this case for example, the Accused might have done nothing. He might have simply sat in thevehicle or walked away from it. The question then arises as to whether or not the action he took was a reasonable.

This was a welltravelled road and this incident occurred during daylight hours when a number of persons might reasonably be expected to have beentravelling along the road. In describing what is to be considered for the second requirement of the defence, Madam Justice Rowles of theBritish Columbia Court of Appeal, in R. v.

Nelson 2007 BCCA 490, said at paragraph [ 28]: “[T]he underlying theme is that the unlawful conduct must have been ‘normatively involuntary’, because if there is a reasonable legalalternative to disobeying the law, then the decision to disobey becomes a voluntary one.” (Emphasis added). [9] Finally, the defence does not require that the danger sought to be avoided be “a matter of life and death.” It only requires thatthere be proportionality between the danger avoided and the offence committed.

In this case, if the stalled vehicle had been struck byanother vehicle speeding over the crest of the hill, it is not unreasonable to suppose that personal injury may have resulted. Certainlyproperty damage would have occurred. This contingency must be balanced against the actions of a prohibited driver operating a motorvehicle a distance of about 200 yards and pulling over into a driveway. The former is obviously the greater harm. [10] Applying these considerations to this case, I accept the evidence of the Accused and of Mr. Stark that the vehicle was stalled inan unsafe location.

In considering the alternatives facing the Accused, he really only had two: either sit and do nothing, hoping that Mr.Stark returned soon, or move the vehicle to a safe location. Doing nothing was not necessarily a reasonable alternative because it putother users of the road at risk for personal injury.

The harm resulting from a prohibited driver operating a vehicle a short distance tomove it to a safer location was not disproportionate to the harm which may have resulted if the vehicle was left in an unsafe locationwhere it might have been struck, causing injury and damage. [11] It will be very rare for the defence of necessity to apply in cases of driving while prohibited. In many cases it will be safe to

leave disabled vehicles where they are, or they may be able to be pushed to a safe location without having to operate them. There may be others around who can operate the stalled vehicle, or there may be police evidence that the person raising the defence drove it a distance greater than necessary. In this case however, I find that the Accused has presented evidence supporting each of the three requirements for the defence of necessity to apply. Specifically: (

a) An imminent peril or danger existed in leaving the vehicle where it might be struck by other drivers who could not see it over the crest of the hill. (

b) Doing nothing was not a reasonable alternative so long as the vehicle posed a risk of personal injury to other drivers. (

c) Driving the vehicle 200 yards or so to pull it off the road was better than leaving it in a dangerous location. [ 12 ] Having established the defence of necessity on a balance of probabilities, the Accused is entitled to an acquittal. I find the Accused not guilty of the offence charged. Dated at the City of Abbotsford, in the Province of British Columbia this 27 th day of November, 2012. _____________________________________________ The Honourable Judge K. D. Skilnick