R. v. Jacobson Date:, 2015 BCPC 342

Citation: R. v. Jacobson Date: 20151127 2015 BCPC 0342 File No: 80485-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ADAM GRANT JACOBSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.E. SHAW Counsel for the Crown: B.P. Caffaro Counsel for the Defendant: N.J. McDougall Place of Hearing: Kelowna , B.C. Dates of Hearing: June 8, 9, September 4 and 28, 2015 Date of Judgment: November 27, 2015

Introduction [ 1 ] On October 9, 2013, Constable Jacobson was driving south along Highway 97 in his police vehicle from Kelowna to the detachment in West Kelowna when he was involved in a motor vehicle accident at the intersection of Daimler Drive and Highway 97 South, in West Kelowna. [ 2 ] Constable Jacobson is charged that he entered the intersection against a red light and that he failed to stop before he entered the marked cross walk or that he failed to stop before he entered the intersection.

The offence alleged is pursuant to s. 129(1) of the Motor Vehicle Act . [ 3 ] Constable Jacobson argues that at the time he entered the intersection at Daimler and Highway 97, he was operating an emergency vehicle and his actions in entering the intersection against a red light were justified pursuant to s. 122 of the Motor Vehicle Act. ISSUES [ 4 ] The issues to be decided are: 1. Was the police vehicle driven by Constable Jacobson an emergency vehicle within the meaning of

section 122 of the Motor Vehicle Act (MVA), justifying the Constable entering the intersection against a red light? 2. If yes, did Constable Jacobson observe the standard of care required of a driver of an emergency vehicle in the circumstances of this case?

Overview of the Facts [ 5 ] The events that led up to the accident of October 9, 2013 are important to consider in determining whether Constable Jacobson was bona fide operating an emergency vehicle within the meaning of s. 122 of the MVA . [ 6 ] Evidence given by the members of the RCMP from West Kelowna and the members of the RCMP from Kelowna differs as to what information about the file was said to or known by the members of the RCMP in Kelowna. West Kelowna RCMP Members’ Evidence [ 7 ] On October 9, 2013, at around 1:29 p.m., a call came in to the West Kelowna RCMP Detachment.

The message was given to Constable Mouncey. She returned the call and spoke with Sandra Rosner who was calling because her sister, Therese Wyman, was involved in a domestic incident the night before. Rosner reported Wyman was with their mother at a West Kelowna Medical clinic and was being sent to get some x-rays because of a possible rib injury. Mouncey understood Rosner had not yet told Wyman she was contacting the police. Mouncey wanted Wyman to come in to the West Kelowna detachment to give further information on the incident.

Mouncey ended the call as Rosner asked for time to talk with Wyman about speaking to the police. [ 8 ] Constable Mouncey informed her Watch Commander, Corporal Lepine, of the telephone conversation with Rosner, including the details that the alleged assault took place the night before and that the victim was safe with family members at a medical clinic. Corporal Lepine directed Constable Mouncey to open a file and proceed with the investigation. Constable Mouncey contacted dispatch and a file was opened. [ 9 ] Constable Mouncey waited around 10 minutes and then called Rosner back.

Rosner advised the incident took place in Kelowna the night before. Wyman and the family members wanted to go to the Kelowna Detachment as they felt they would get better service there.

Although Constable Mouncey felt the West Kelowna Detachment would provide as good of service as Kelowna, she deferred to Rosner and Wyman that they wanted to attend at the Kelowna Detachment, as the incident had taken place in Kelowna. [ 10 ] After the call, Constable Mouncey advised Corporal Lepine that the alleged victim, along with a family member, would be going to the Kelowna Detachment. [ 11 ] Corporal Lepine confirmed with Constable Mouncey that he would call the Kelowna Detachment watch commander and advise him of the situation and told Constable Mouncey to ‘re-queue’ the file. [ 12 ] At this point Mouncey called Rosner back and confirmed Kelowna would be notified and Mouncey then understood Wyman with her mother or Rosner would attend at the Kelowna Detachment. [ 13 ] At 3:30 p.m., Constable Mouncey ‘re-queued’ the file created in West Kelowna, so it could be passed along to the Kelowna Detachment. [ 14 ] The call to the Kelowna Watch Commander by Corporal Lepine did not happen and Lepine candidly admitted he did not know why he did not make that call.

Evidence of the Kelowna RCMP Members [ 15 ] Corporal Meyers, the acting Watch Commander in Kelowna on that day, recalls that the detachment’s civilian front counter person came in and told him that someone with a West Kelowna file was at the front counter wanting to make a complaint. Corporal Meyers told the front counter person to send them back to West Kelowna without inquiring what the alleged offence was or where the alleged offence had taken place. Meyers initially assumed it was likely a property complaint.

[ 16 ] The front counter person sent Wyman and her family member back to the West Kelowna detachment. [ 17 ] A little later Meyers noticed the dispatch information on his computer on this file and saw that the offence had taken place in Kelowna. He also noticed the file was not a property complaint but was a domestic assault file. [ 18 ] It is at this point that Corporal Meyers says he felt that the matter became urgent. Meyers says he believed he, and the RCMP in general, ‘dropped the ball’.

Meyers stated he took “ownership of the problem” that the RCMP had failed to give adequate service to the complainant, Wyman, and her family by sending them from West Kelowna to Kelowna and then turning them back again to West Kelowna. [ 19 ] Corporal Meyers admitted he was very upset over this situation. Contact between West Kelowna Members and Kelowna Members of the RCMP [ 20 ] Corporal Meyers said he spoke with Corporal Lepine in West Kelowna but does not recall if he called Lepine or whether Lepine called him. Corporal Lepine agrees he spoke with Corporal Meyers, but Lepine says he did not call Meyers.

Their conversation took place after Wyman with her family member attended at the Kelowna Detachment, and were turned away. [ 21 ] Corporal Babiri, the second watch commander on shift in Kelowna, was in Meyers’ office at the time Corporal Meyers was speaking to Lepine in West Kelowna. Corporal Babiri did not give evidence. [ 22 ] Lepine says during their conversation, Meyers was aware the complainant was on her way back to West Kelowna and Lepine told him Constable Mouncey would be there to meet them.

Meyers told Lepine that Kelowna was sending a member to West Kelowna as well. [ 23 ] Corporal Lepine stated it was not unusual in the circumstances for Meyers to also send a member as both the West Kelowna Detachment and the Kelowna Detachment felt they had essentially failed to provide adequate service to Wyman and her family. [ 24 ] After being informed of the call from Corporal Meyers by Lepine, and having worked with Meyers in Kelowna before, Constable Mouncey called Corporal Meyers in Kelowna.

She states her call to Meyers was made after 3:30 p.m. on October 9, 2013, but before the accident involving Constable Jacobson occurred. At trial, Meyers had no recollection of Mouncey’s call. [ 25 ] Constable Mouncey testified she could not recall the specific details of what she advised Corporal Meyers about the matter, but she confirmed that at the end of the conversation she felt she and Meyers were ‘on the same page’ as to what had transpired in relation to Wyman.

She testified she did not indicate, in any way, to Corporal Meyers that the information regarding Wyman had any aspects to it that could be considered an emergency. [ 26 ] Corporal Meyers could not recall where he got any specific details about the complaint from Wyman, whether it was from Corporal Lepine, his civilian front counter person, or from the computer.

Corporal Lepine stated he did not covey any information to Corporal Meyers to suggest there was anything of urgency involved with the complaint. [ 27 ] Corporal Meyers admitted that he was very upset when he realized that, in essence, his actions resulted in Wyman being sent away from the Kelowna detachment. [ 28 ] Constable Jacobson says he first became aware of a situation when he overheard some conversation between Corporal Meyers and Corporal Babiri about what Corporal Jacobson called “a domestic violence” incident with some issues regarding West Kelowna.

Jacobson said Meyers was not behaving in his usual calm manner, and described Meyers as agitated, frustrated and looking flustered. Jacobson said Meyers came out of his office and looked for a member to attend or deal with the domestic violence file. Constable Jacobson volunteered to deal with the file. [ 29 ] Corporal Meyers was unable to give any specific details of what he told Constable Jacobson about the file. He does recall he told Constable Jacobson that “mistakes were made and the family or victim was turned back to West Kelowna.

He (that being Jacobson) needed to go and investigate the file in West Kelowna”. Meyers said his conversation with Jacobson was short, lasting about three minutes. Meyers told Jacobson what he knew about the file, which would have been the information from Corporal Lepine, from the dispatch ticket, and the front counter person. I accept that Constable Mouncey called Corporal Meyers after Lepine had a conversation with Meyers, although, as mentioned, Corporal Meyers says he has absolutely no recollection of speaking to her. [ 30 ] Jacobson says he remembers specifics.

He said Meyers told him that it was a domestic dispute involving a female, who had been assaulted by either a boyfriend or husband; and that it was a serious assault. He cannot remember if he was told there were confirmed broken ribs or suspected broken ribs but he says it was a serious injury and that the victim had fled the house. [ 31 ] Constable Jacobson states he was told the victim was with a family member, and he believed it was a sister. He said he was told the victim and the family member had attended the West Kelowna Detachment.

He also understood that West Kelowna had sent the complainant away as the incident had occurred in Kelowna, then the complainant had attended the Kelowna Detachment and was sent away back to West Kelowna. [ 32 ] Jacobson says he was in the watch commander’s office receiving a lot of information from Meyers and Dabiri about how the RCMP messed up, how this was urgent, and he says he was told to make sure he dealt with this right away. [ 33 ] Jacobson says Meyers told him West Kelowna had dropped the ball but the Kelowna Detachment had as well.

Jacobson testified that Meyers told him this was a serious “K” file, that is, a domestic file and that it had to be dealt with right away. [ 34 ] Corporal Meyers confirmed he never told Constable Jacobson that this was a “Code 3”, or emergency file. He further stated the decision to determine whether it was an emergency is solely in the discretion of the member responding to the dispatch.

[ 35 ] Jacobson testified he got information from Meyers and the dispatch ticket which is the initial information available in the computer. [ 36 ] In his evidence, Constable Jacobson elaborated on what he believed were his considerations which made the Wyman file serious: he says the location of the boyfriend or husband was not known and he said he knew that the boyfriend had been attempting to contact and locate the female victim. Jacobson stated that he did not know the suspect’s exact location, just that the suspect had been contacting the victim of the assault.

In contrast, Corporal Meyers testified that to his knowledge the suspect was unknown and the information from West Kelowna was that there had been some text messages sent to a cell phone to the victim’s son. Jacobson says he was aware the complainant had departed the Kelowna Detachment and was heading back to West Kelowna, likely to the detachment. Difficulties with Communications between the RCMP Members on October 9, 2013 [ 37 ] Corporal Meyers gave evidence that on October 9, 2013, the cell phone carrier for the police phones and mobile information units in the police cars was down and not working.

This interfered with Dispatch and members’ non-radio contact with the officers who were out in the vehicles. Meyers cannot remember when the carrier went down that day, nor can he remember when the service was restored. Meyers does say he knows the service was not available at the time Jacobson was being dispatched to go to the West Kelowna Detachment. [ 38 ] Jacobson testified that he believed there was no one available in the West Kelowna Detachment to assist the victim or take her statement.

Jacobson says he asked Corporal Meyers whether there was anyone in West Kelowna Detachment that could provide assistance in dealing with the victim and ensure her safety and he says he was told “Kelowna would be dealing with it”. From that statement, Jacobson says his understanding was no one in West Kelowna was available.

This is directly in contrast to the evidence of Mouncey and Lepine who confirmed they told Meyers that Mouncey was at the West Kelowna Detachment and would be there to greet the complainant. [ 39 ] Jacobson says when he left the Kelowna detachment slightly before or around 5 p.m., he was aware he would be dealing with the ‘rush hour’ traffic. [ 40 ] Once underway to West Kelowna, Jacobson used the police vehicle radio to obtain the phone number for the direct line for police members at the West Kelowna Detachment, he says, to see if anyone was available at the West Kelowna Detachment to ensure the safety of the victim.

He testified he felt the parking lot at the West Kelowna Detachment was not a secure location. However, Jacobson knew Wyman was with her family members. [ 41 ] Constable Jacobson testified that his understanding was the assault had just taken place before the victim went to West Kelowna to report the incident.

There was no indication in the information given by the RCMP members, other than Jacobson, there was any suggestion that the assault had just taken place. [ 42 ] In contrast, there was clear information that was communicated from West Kelowna to Corporal Meyers that the assault had taken place the day before and that the complainant was with family members and had sought out medical advice. [ 43 ] Constable Jacobson testified that he knew the suspect “was not coming forward”, which I assume means that the suspect had not voluntarily contacted the police.

There was no information from any other member on the identity of the suspect other than being a husband or boyfriend. Jacobson was unable to say where he got that information or what he was specifically told. [ 44 ] When he left the Kelowna detachment, Jacobson used the police radio to try and get the West Kelowna detachment direct phone number to the members. After his initial use of the radio, Jacobson made attempts to contact the West Kelowna Detachment over both the police telephone and his personal cell phone. He says he learned later the Rogers’ service was down.

However, radio contact and communications were not affected. [ 45 ] After the initial use of the radio, and his unsuccessful telephone contact with West Kelowna, Constable Jacobson did not make any further attempt to contact the West Kelowna detachment by radio until after the accident when he radioed in that he had been involved in a motor vehicle accident. [ 46 ] When he left the Kelowna detachment, Constable Jacobson did not use his emergency lights or siren.

He states he was travelling at the speed of traffic or maybe a bit quicker and he made his way through traffic, until he approached the intersection of Highway 97 and Daimler Drive. Evidence of the Accident [ 47 ] The roads were clear and dry, and the day was clear with intermittent cloud. Jacobson does not recall seeing any pedestrians on Highway 97 at any time. Jacobson states traffic was patchy - a few clumps of cars travelling together but he says traffic was not backed up. [ 48 ] As he approached the Daimler Drive and Highway 97 intersection, he saw traffic ahead getting a bit heavier.

Jacobson states he knows that once he is through the Daimler Drive intersection, there are only two more controlled intersections before he would get to the West Kelowna Detachment, although he is still some distance away. [ 49 ] At the Daimler Drive intersection Jacobson states he saw traffic backed up to the left-hand turn lane - about 15 - 20 vehicles.

He saw the light was red in his direction. [ 50 ] Constable Jacobson testified that even though he saw the light was red, given the time of day, the type of call, the amount of time that had elapsed, and that he saw an urgency, he decided that “if I could get past these vehicles, it would save me a couple of minutes”. Jacobson testified that he only intended to use Code 3, which is using the emergency lights and siren, to get through this particular intersection.

[ 51 ] As he neared the intersection, at about 4 - 5 vehicle lengths’ back from the beginning of the left turn lane on Highway 97 going south, Jacobson activated his lights and siren. [ 52 ] As Jacobson reached the left-hand turn lane travelling south, he entered that lane and he began braking and moving, scanning to his left and right. Jacobson was aware there were two lanes for vehicles on his right side which included a through lane along Daimler Drive. [ 53 ] As he entered the intersection, Jacobson says he thought he came to a complete stop.

This was not supported by the evidence and data presented by the accident reconstruction expert, Sergeant Nightingale, which evidence is referred to later in this decision. [ 54 ] Jacobson states as he came into the intersection, he made eye contact with at least two of the drivers of the stopped vehicles: a logging truck in the left-hand turn lane on Daimler Drive to his left, who was preparing to turn left and travel south; and the driver of a car that was in the left-hand turn lane on Daimler Drive to his right, who was preparing to turn left and travel north to Kelowna.

The vehicles that were in the through lanes on Highway 97 were stopped as the light was red for their travel. [ 55 ] Jacobson did not see anyone coming in the through lane of Daimler Drive, either to his left or his right.

He could not see the Daimler Drive through lane to his right as there were several vehicles backed up in the left-hand turn lane obstructing his view. [ 56 ] The driver of the car in the left-hand turn lane to Jacobson’s right gave him a wave to go through the intersection. [ 57 ] Jacobson states he decided that at that point he was going to put his foot on the gas and go through the intersection as quickly as he could.

Jacobson then accelerated the police vehicle before he had cleared the intersection. [ 58 ] As Jacobson accelerated, he saw a vehicle coming from his right in the through lane of Daimler Drive, and Jacobson states he braced for the impact which then occurred. [ 59 ] Jacobson’s police vehicle came to a stop facing north in the on-coming traffic lane. Jacobson then radioed to dispatch that he was involved in a motor vehicle accident. [ 60 ] Braeden Wiebe was 16 years old at the time of the accident and had obtained his “N” driver’s licence in June of 2013, about 4 months before the accident.

His father was in the passenger seat. The light was green as he approached the intersection and there were no vehicles in the through lane ahead of him. He did note that there were vehicles stopped in the left-hand turn lane, but he did not know why they were stopped. Neither he nor his father heard or saw the police vehicle with the siren and lights activated. [ 61 ] Braeden Wiebe states he was travelling around 50 - 55 km per hour. He entered the intersection and stated he could not avoid the impact with the RCMP vehicle.

His father, a passenger in the vehicle at the time, confirmed that he did not hear the siren or see the police vehicle with the lights activated until the collision. [ 62 ] The Jetta driven by Braeden Wiebe collided with the police vehicle on the passenger side in the vicinity of the passenger door. [ 63 ] Both Mr. Wiebe Sr. and Constable Jacobson say the other made statements after the accident. I accept the evidence of Mr. Wiebe Sr. that he did not see or hear the police vehicle until just before the collision, and I accept that he did not make any statement that he heard the siren but did not see the vehicle.

I accept the evidence of Constable Jacobson that he turned his siren and his lights on 4 - 5 car lengths before the left-hand turn lane started. Expert Evidence of Sergeant Nightingale [ 64 ] Sergeant Nightingale is an expert RCMP member with 34 years of experience.

He extracted and interpreted data from the RCMP vehicle used by Constable Jacobson and used forensic techniques to reconstruct the accident. [ 65 ] Sergeant Nightingale stated the data indicates the collision occurred at 41 minutes after 5 p.m. on October 9, 2013. [ 66 ] From the forensic techniques, Sergeant Nightingale determined that the vehicle that was travelling the greater speed, between the two vehicles involved in the collision, was the police vehicle.

At the time of impact, the police vehicle was travelling between 44 to 48 km per hour and the Jetta was travelling between 23 - 38 km per hour. [ 67 ] In the police vehicle, a power control module monitors all the other modules in the vehicle and in the event of an accident the data, particularly the velocity, braking and acceleration data, are captured and frozen.

Speed data is recorded five times per second. [ 68 ] The recorded data supports Constable Jacobson’s evidence that he slowed before he entered the intersection, but at no time does the data support that Constable Jacobson came to a complete stop until the collision. [ 69 ] The data further supports that at 3.2 seconds before the collision Jacobson was braking and his speed was between 10 km per hour - 11.3 km per hour but then Jacobson releases the brake at 2.8 seconds before the collision and within ½ of a second he is accelerating at 100%.

The description given by Sergeant Nightingale was that the officer “floored” the accelerator of the vehicle. Jacobson continues to accelerate right up to impact.

Law and Authorities [ 70 ] Prima facie , Braeden Wiebe, the driver of the Jetta travelling eastbound along Daimler Drive into the intersection of Daimler and Highway 97, had the right of way as the traffic control light at the intersection was green in his favour. [ 71 ] The right of way is not absolute, and is subject to the operation of emergency vehicles. [ 72 ] On the approach of an emergency vehicle, drivers, even when they have the right of way, must yield to an emergency vehicle by

pulling over to the nearest curb.

Section 177 states: Approach of emergency vehicle 177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed. [ 73 ] The question is whether Constable Jacobson was operating an emergency vehicle within the meaning of s. 122 of the MVA at the time of entering the intersection and at the time of the collision. [ 74 ] S. 122 of the Motor Vehicle Act states: Exemption for emergency vehicles 122

(1) Despite anything in this Part, but subject to subsections (2) and (4), a driver of an emergency vehicle may do the following: (

a) exceed the speed limit; (

b) proceed past a red traffic control signal or stop sign without stopping; (

c) disregard rules and traffic control devices governing direction of movement or turning in specified directions; (

d) stop or stand.

(2) The driver of an emergency vehicle must not exercise the privileges granted by subsection (1) except in accordance with the regulations. (3) [Repealed 1997-30-2.]

(4) The driver of an emergency vehicle exercising a privilege granted by subsection (1) must drive with due regard for safety, having regard to all the circumstances of the case, including the following: (

a) the nature, condition and use of the highway; (

b) the amount of traffic that is on, or might reasonably be expected to be on, the highway; (

c) the nature of the use being made of the emergency vehicle at the time. [ 75 ] The driver of an emergency vehicle must not exercise the privileges set out in s. 122(1) except in accordance with the regulations set out in the Emergency Vehicle Driving Regulation , B.C. Reg. 133/98 (the “ Regulation ”).

In the circumstances before the court, s. 3(1), (2) and 4(1), (3) and (6) of the Regulations apply. [ 76 ] Section (4)(1) of the Regulation refers to operation of an emergency vehicle when a pursuit is not the reason for the operation of the police vehicle, but the vehicle is still used as an emergency vehicle and operates pursuant to s. 122 of the MVA . S. 4(1) , (3) and (6) of the Regulation states: Emergency response by peace officer 4

(1) A peace officer operating an emergency vehicle for purposes other than pursuit may exercise the privileges granted by section 122 (1) of the Motor Vehicle Act if (

a) the peace officer has reasonable grounds to believe that the risk of harm to members of the public from the exercise of those privileges is less than the risk of harm to members of the public should those privileges not be exercised, and (

b) the peace officer operates the following emergency equipment, as applicable: (

i) in the exercise of privileges described in section 122 (1) (

a) to (

c) of the Motor Vehicle Act , an emergency light and siren; (ii) in the exercise of privileges described in section 122 (1) (

d) of the Motor Vehicle Act , an emergency light or an emergency light and siren. 4

(3) In considering whether there are reasonable grounds under subsection (1), (2) or (5) a peace officer must (

a) consider the factors described in section 3 (2), and (

b) weigh the degree of risk of harm to members of the public against the seriousness of the nature and circumstances of the suspected offence or incident. … 4

(6) Factors which will increase the risk of harm to members of the public for purposes of subsections (1), (2) and (5) include (

a) attempting to close the distance between a peace officer's vehicle and another vehicle,

(

b) if there is poor visibility, (

c) if there is pedestrian or other vehicular traffic on the highway, and (

d) if the peace officer must disregard a yield sign or pass through a crosswalk or uncontrolled intersection. [77] As set out in s. 4 (3) of the Regulation, above, on considering whether Constable Jacobson had reasonable grounds to exercisethe privileges, reference must also be made to s. 3(2) of the Regulation. That

section states: 3

(2) In considering whether there are reasonable grounds under subsection (1) (b), the driver of the emergency vehicle must considerany pertinent factors, including the following, if relevant: (

a) the nature and circumstances of the suspected offence or incident; (

b) the risk of harm posed by the manner in which the emergency vehicle is being or is likely to be operated; (

c) the risk of harm posed by the distance, speed or length of time required or likely to be required to exercise the privileges; (

d) the nature, condition and use of the highway; (

e) the volume and nature of pedestrian or vehicular traffic that is, or might reasonably be expected to be, in the area. [78] In addition to the legislation, I was also provided with case authority from both the Crown and from Defence. [79] Crown provided the following cases for consideration: 1. Watkins v. Dormuth, [2014] B.C.J. No. 557 (BCSC); 2. Bergen v. Guliker, [2014] B.C.J. No. 7 (BCSC); 3. Singh v. British Columbia (Minister for Public Safety), [2013] B.C.J. No. 1094 (BCSC); 4. Haczewski v. British Columbia, [2012] B.C.J. No. 528 (BCSC); 5. Radke v. M.S. (litigation guardian of), [2005] B.C.J.

No. 2077 (BCSC); [2007] B.C.J. No. 753 (BCCA); 6. Burbank v. Bolton, 2007 BCCA 215 , [2005] B.C.J. No. 2271 (BCSC), [2007] B.C.J. No 752 (BCCA); 7. Hill v. Canada (Royal Canadian Mounted Police), 2001 BCSC 1191 , [2001] B.C.J. No 1695 (BCSC). [80] Counsel for the Defence provided the follow cases for consideration: 1. Frers v. De Moulin, [2002] B.C.J. No. 576 (BCSC); 2. Walker v. Brownlee and Harmon, (SCC), [1952] S.C.J. No. 56 (SCC); 3. Regina v. Fryer, [1969] B.C.J. No. 328 (Vic. Co. Ct., B.C.); 4. Lal v. Lawson, [1994] B.C.J. No. 273 (BCSC); 5. Douglas v. Graham, [1993] B.C.J. No. 3038 (BCSC); and 6.

Noel (Committee of) v. Botkin, [1995] B.C.J. No. 1184 (BCSC); [1995] B.C.J. No. 539 (BCSC). [81] I have reviewed each of the cases provided, but I will not be referring to those cases I did not find of particular assistance inthese reasons. [82] In Watkins, which is a civil case determining liability, the plaintiff’s vehicle was struck by a police vehicle. The police officerwas found to be solely responsible for the collision. The officer had activated his lights and siren and had gone “Code 3”, proceeding inan emergency fashion to the activation of a ‘bait car’ location.

The court found there were no reasonable grounds for the officer toproceed in an emergency fashion. The court further found the officer operated his police vehicle in an unnecessary aggressive mannergiven the nature of the dispatch. The court further stated that even if the police vehicle was exercising the driving privileges accorded bys.122 of the MVA, they may only do so within the limits set by the Regulations.

The court stated at paragraph 95 of the decision: 95 … They may only do so within the limits set by the Emergency Driving Regulation and they are constrained by the duty to drive withdue regard for safety: Frers, at para.89. … [83] In Singh, the court set out at para. 56 the standard of care that is applicable to an officer’s conduct is : 56… that of a reasonable police officer, acting reasonably and within the statutory powers imposed on him or her according to thecircumstances of the case: see Burbank v.

R.T.B., 2007 BCCA 215, at para. 28. [84] In Haczewski, the court stated at para. 16: 16 Thus the statutory privileges granted by the Motor Vehicle Act’s

section 122 exemption are subject always to balancing theexigencies of the emergency with the risk of harm arising from the operation of the vehicle. In particular, the driver of any emergency

vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care. [ 85 ] In Lal , a civil case determining liability provided by the defence, the police officer entered an intersection against a red light and the plaintiff’s vehicle struck the defendant’s vehicle on the right rear quarter. The officer was responding to a break and enter dispatch and activated his emergency lights and siren a considerable distance from the intersection. The court found the officer was operating an emergency vehicle at the time of the accident.

The officer made a complete stop at the intersection, and then proceeded through the intersection looking down the curb lane and seeing no vehicles, accelerated through the intersection. Neither the plaintiff nor the defendant was aware of the other. The testimony of the plaintiff, Lal, was found to be inconsistent with his previous statement, and the independent witness evidence was accepted that the plaintiff was speeding, that he ought to have heard the siren and was not paying sufficient attention to his driving. [ 86 ] I find that case can be distinguished on the facts. Lal is a case determining liability.

Here, I did not find that Braeden Wiebe ought to have heard the siren and I find that his view of the lane that Constable Jacobson was travelling in was obstructed by other traffic. Constable Jacobson did not activate his emergency equipment ‘a considerable distance away from the intersection’, but only activated the lights and siren to clear this particular intersection, just before the beginning of the left-hand turn lane of the intersection. There were submissions that Braeden Wiebe was speeding.

The speed limit of Daimler Drive was not known specifically by the witnesses, including the expert, and the evidence was without any other speed limit indicated, the speed limit would have been 50 km per hour. Braeden Wiebe estimated his speed between 50 km per hour and 55 km per hour approaching the intersection. The speed at impact was calculated by the expert was found to be between 23 km per hour and 38 km per hour. It was argued Braeden Wiebe braked before the collision thus decreasing his speed by the time of the collision. I accept that submission.

However, I do not find sufficient evidence to conclude that Braeden Wiebe was exceeding the speed limit or that he was not paying sufficient attention to his driving. [ 87 ] I now consider all the authorities and apply the principles to determine the issues. Was the police vehicle driven by Constable Jacobson an emergency vehicle within the meaning of

section 122 of the Motor Vehicle Ac t (MVA), justifying the Constable entering the intersection against a red light? [ 88 ] Jacobson testified he thought the Wyman dispatch was a priority because there were ‘broken bones’ involved. However, he also admitted that he could not remember if he was told there were broken bones or suspected broken bones.

The information from West Kelowna was that the complainant or victim was obtaining medical assistance for a possible rib injury. [ 89 ] Constable Jacobson also testified that he felt the call out was a priority and urgent, as he had to go and get a statement because a victim will sometimes recant. Jacobson also said it was an emergency because the RCMP must make sure the assault does not continue, and he alluded to not knowing where the suspect was located. Jacobson knew that Wyman was with and being assisted by family.

I accept that obtaining a statement from an alleged victim in a domestic dispute is important, but in my view, concern that a witness may recant does not, in these circumstances, raise the risk to the victim to that of an emergency. [ 90 ] Jacobson says he was concerned about saving seconds or minutes as he was concerned about Wyman’s safety. If the situation involved a true emergency, then why did Jacobsen not proceed with lights and siren from the Kelowna Detachment?

I find there was an insufficient informational basis to support Jacobsen’s view that he had an emergency and what I find his evidence to be an exaggerated description of the known risk. [ 91 ] Constable Jacobson did not know for sure that Wyman was travelling back to the West Kelowna detachment. Constable Jacobson had no informational basis to believe that the suspect was tracking down Wyman. [ 92 ] It is clear the urgency and agitation that Constable Jacobson witnessed with Corporal Meyers and Corporal Dabiri, and their ‘urgent’ directions to him, affected him.

But that urgency arose out of embarrassment and concern from the Kelowna detachment sending away a complainant of a domestic dispute, back to another detachment without providing adequate service to that member of the public. Corporal Meyers was significantly upset, most likely at his own oversight and actions.

This agitation was seen by Constable Jacobson, and I find it would have affected him. [ 93 ] In hindsight, Constable Jacobson attempts to create a rationalization for his decision to go “code 3”, or turn his police vehicle’s sirens and emergency lights on when approaching and entering the Daimler - Highway 97 intersection. With the potential significant embarrassment of the RCMP in turning away a complainant of a domestic dispute, and given the uncharacteristic highly agitated actions of his superiors, I find that this played a role in Constable Jacobson exercising poor judgement that day.

At most, this situation amounted to an administrative emergency. [ 94 ] After the collision, Constable Jacobson radioed in the accident, but during his conversation and report he does not make mention of any concern for the victim Wyman which is inconsistent with what he describes at trial as a high priority domestic assault with immediate concerns for the complainant’s safety in the West Kelowna detachment parking lot. [ 95 ] On considering the factors as set out in s. 3(2) of the Regulation , I find the nature and circumstances of the suspected offence or incident does not justify the risk of harm posed by the manner in which Constable Jacobson was operating the emergency vehicle or likely to operate the police vehicle while exercising the privileges. [ 96 ] I further find that when Constable Jacobson approached the intersection, he observed that the intersection was congested and that there were numerous vehicles turning both north and south from the left-hand turn lanes from either side of Daimler.

The risk of potential harm was high when entering a busy intersection where he did not have a clear view of the through lanes with potential vehicles who had the green light travelling east and west along Daimler. [ 97 ] On considering all of the circumstances, I do not find that Constable Jacobson had a basis to exercise the privileges granted to drivers of emergency vehicles pursuant to s. 122, that is, I do not find that there were sufficient or justifiable reasons to proceed through the intersection as an emergency vehicle, even assuming some misunderstanding on the part of Constable Jacobson as to the nature of the emergency of the call.

The risk of harm to members of the public from the exercise of those privileges was not less than the risk of harm

to a member of the public, here the complainant Wyman, should those privileges not be exercised.

Did Constable Jacobson observe the standard of care required of a driver of an emergency vehicle in the circumstances of this case? [ 98 ] I have found Constable Jacobson did not have the basis for operating an emergency vehicle within the meaning of s. 122 of the Motor Vehicle Act , but I will also comment on Constable Jacobson’s actions as he drove the vehicle through the intersection. [ 99 ] I find, even if the police vehicle was operating as an emergency vehicle, which I find there was no basis for the officer to do that, I would not find that Constable Jacobson conducted himself as is required for an emergency vehicle driver in clearing the intersection. [ 100 ] S. 122(4), states: The driver of an emergency vehicle exercising a privilege granted by subsection (1) must drive with due regard for safety, having regard to all the circumstances of the case, including the following: (

a) the nature, condition and use of the highway; (

b) the amount of traffic that is on, or might reasonably be expected to be on, the highway; (

c) the nature of the use being made of the emergency vehicle at the time. [ 101 ] Constable Jacobson activated his lights and siren 4 -5 car lengths from the left-hand turn lane entering the intersection at Highway 97 and Daimler Drive, and there is a duty imposed by s. 177 of the MVA for vehicles to yield to an emergency vehicle. However, this duty is not absolute. In Watkins , the court stated a driver must have time to perceive and react. Here, neither the driver Braeden Wiebe nor his father, the passenger, saw the police vehicle nor heard the police siren.

Constable Jacobson did not see the Wiebe vehicle travelling in the through lane of Daimler Drive with a green light. [ 102 ] Constable Jacobson appropriately slowed his speed entering the intersection, but before he had a clear view of the through lanes east and west on Daimler Drive, Constable Jacobson “floored” his accelerator to 100%. [ 103 ] Constable Jacobson disregarded the amount of congestion in the intersection, the short time that his emergency equipment had been on, that he did not have a clear view of the through lanes on Daimler Drive as his view was obstructed by vehicles, and he should reasonably have considered there may be a vehicle or vehicles who could not see or hear him because their view was obstructed. [ 104 ] I find that Constable Jacobson’s move to purposely press the acceleration to 100%, or “floor it”, to clear the intersection without first taking reasonable steps to ensure there was no traffic coming on Daimler Drive in the through lane was an aggressive and unnecessary move. [ 105 ] I conclude that Constable Jacobson had no basis to exercise any emergency vehicle driving privileges and I conclude that in exercising those privileges he did not drive with due regard for safety in the circumstances of the this case. [ 106 ] In the result, I find Constable Jacobson guilty.

THE HONOURABLE JUDGE M.E. SHAW