R. v. Khan Date:, 2017 BCPC 258

Citation: R. v. Khan Date: 20170905 2017 BCPC 258 File No: AH 71325221 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAN GULNAZ KHAN REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE L. MAYNER Appearing for the Crown: Corporal Yacyshyn Appearing for the Defendant: S. P. Grey and B. Lau Place of Hearing: Surrey , B.C. Date of Hearing: May 17, 2017 Date of Judgment: September 5, 2017

INTRODUCTION [1] Ms. Khan was charged on the 1st of March 2016 around 9:55 a.m. on 152nd Street, Surrey, B.C., as a pedestrian with Failing toYield to a Vehicle while not being in a cross walk,

Section 180 of the British Columbia Motor Vehicle Act. It simply 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. [2] The Crown, represented by Corporal Yacyshyn, presented 6 witnesses to the court on this case. Three police officers whoattended the scene after the accident occurred where the disputant was hit by a pick-up truck driven by one of the other Crownwitnesses. Three civilian witnesses gave their recollection of events also. [3] The Defence, represented by Mr. S.P. Grey with Mr. B.

Lau as co-counsel, did not call any evidence. He gave submissions forthis court to find firstly that the area Ms. Khan, the disputant, crossed at was an intersection according to the Motor Vehicle Act andtherefore an unmarked crosswalk. He then secondly wants the court to find that his client, Ms. Khan, had every right to cross thatintersection and the vehicle should have yielded to her while she was crossing. [4] Of course the Crown disagreed with all of the points in Mr. Grey’s submission. ISSUES [5] The following issues arise for determination:

a) Is the area of 152nd Street and 81st Avenue, Surrey, B.C., an intersection according to the Motor Vehicle Act RSBC 1996 C318 and,if so, is there an unmarked crosswalk there?

b) If it is an intersection with an unmarked crosswalk, did the Defendant cross in that unmarked crosswalk?

c) Was the Defendant at fault for being struck by a vehicle while crossing? The first question: Is the area of 152nd Street and 81st Avenue, Surrey, B.C., an intersection under the definition of the MotorVehicle Act RSBC1996 C318 and is this an unmarked crosswalk? [6] The definition of “intersection” means the area embraced within the prolongation or connection of the lateral curb lines, or ifnone, then the lateral boundary lines of the roadways of the 2 highways that join one another at or approximately at right angles, or thearea within which vehicles travelling on different highways joining at any other angle many come in conflict. [7] The definition of “crosswalk” means (

a) a portion of the roadway at an intersection or elsewhere distinctly indicated forpedestrian crossing by signs or by lines or other markings on the surface, or (

b) the portion of a highway at an intersection that isincluded within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of thelateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of theroadway. [8] Mr. Grey, for the Defence, referred to the Neufeld v. McCrae 2008 BCSC 539 , 2008 BCSC539 decision of MadamJustice Dickson.

In that case, although it was 2 vehicles involved in an accident, she made the decision of whether the accident occurredat an intersection because of the configuration of the roadway. In that particular area the streets were offset by 16.4 meters. On page 9,paragraph 36, in her decision she concluded: On the evidence in this case, I am satisfied that the off-set intersection falls within the definition of intersection in s. 119(1) of the Act.

The definition contemplates intersections configured at other than at precisely right angles and the northern and southern portions ofLynden are approximately, though not precisely, aligned. [9] Mr. Grey further submitted 81st Avenue lines up with the other street on the other side of 152nd Street called 152nd StreetFGE but it’s not perfectly at right angles. He submitted it still falls under the definition of an intersection. [10] The Defence counsel further submitted an unmarked crosswalk would be located across 152nd Street as shown in Exhibit #1from the Crown and photograph #4 of that Exhibit.

It would go across southbound traffic lanes on 152nd through to the median and tothe curb on the right hand side of the northbound lanes. Then there is a sidewalk and a stop sign for vehicles exiting 152nd Street FGEonto 152nd Street. [11] The Crown did not present any case law on the

interpretation of an intersection under the Motor Vehicle Act. They were relyingon the evidence of some of their witnesses who said they did not see a crosswalk in the area where the Defendant crossed. [12] The configuration of the roadway in this area of 152nd Street and 81st Avenue and 152nd Street FGE where the accident tookplace is much more aligned than the area described by The Honourable Madam Justice Dickson in Neufeld and McCrae. This is thecase given to the court to consider from the Defence. [13] I have considered the case of Neufeld and McCrae, which is the best case on point, along with the

interpretation of thedefinition of intersection according to the B.C. Motor Vehicle Act. Having done that, I find 81st Avenue and 152nd Street including152nd St FGE, Surrey, British Columbia, is an intersection according to the B.C. Motor Vehicle Act. [14] The numerous photos in Exhibit 1 taken by Constable Clarke were very clear and very helpful to see the configuration of theroadways in this area. Exhibits 2 and 3 were also very helpful and gave a clear picture of this area.

[ 15 ] After careful consideration on the second part of issue (a), I find there is an unmarked crosswalk that extends from 81st Avenue across 152nd Street to the east side of 152nd Street FGE. I note that 81st Avenue ends at 152nd Street. [ 16 ] On the North side of 81st Avenue looking east, a pedestrian would see an imaginary line for the crosswalk across both lanes of south bound traffic on 152nd Street. Then a pedestrian may decide to wait on a narrow raised concrete meridian slightly narrower than a regular sidewalk in order to check for traffic.

This meridian is slightly north of this imaginary line for an unmarked crosswalk, perhaps a meter or two. Then the line would continue on eastbound through the northbound traffic lanes and connect with the curb, sidewalk and grassy meridian separating 152nd Street NB and 152nd Street FGE.

There is a slight curve where 152nd Street FGE, which also runs north and south, meets 152nd Street with a stop sign and a painted white line on the east side of 152nd Street. [ 17 ] On the south side of 81st Avenue looking east, the unmarked crosswalk would extend from the curb of 81st Avenue and 152nd Street directly across 152nd Street to the other side. There is also a concrete median separating north and southbound lanes on 152nd Street wide enough where a pedestrian could rest if they were waiting for traffic to clear. Both medians in the centre of 152nd Street are painted a reflective yellow.

On the north side of 152nd Street there is a yellow and black sign to warn traffic a median is there. [ 18 ] I also find the medians that were referred to are part of the unmarked crosswalk or so close to the unmarked crosswalk that they could be used in conjunction with the unmarked crosswalk to ensure a pedestrian could cross safely. The second issue for me to decide is did the Defendant cross in that unmarked crosswalk or did she cross in a different location? [ 19 ] The Crown witness, Cst Clarke, came to the scene after the accident and as I said previously took very clear photos of the area.

There were also very clear photos of the debris from the Defendant’s clothing and lunch bag and umbrella, after she was hit by a northbound vehicle. There was no dispute the debris was found at or near the intersection of 152nd Street in the northbound lanes. [ 20 ] Crown witness Constable Wilson, a Surrey RCMP officer, gave evidence he was driving southbound on 152nd Street near 82nd Avenue which is approximately a block away from this accident.

He noticed a commotion as he drove by the area of the accident and testified he saw what looked like to him a pedestrian had been struck in the area of the meridian at 81st Avenue and 152nd Street. He stopped to assist and called an ambulance and spoke with the 3 civilian witnesses who attended for the Crown. [ 21 ] Crown witness Constable Mike Halskov of the Surrey RCMP gathered the statements of the witnesses to this accident and issued and served Shana Khan the ticket that’s before me a couple months after the date of the accident.

He testified that he could come to no other conclusion than the Defendant crossed in a no crosswalk area, waited on the meridian in the middle of north and southbound lanes of 152nd Street, then “darted out across northbound lanes and got hit by a northbound truck in the slow lane”. [ 22 ] I note none of the civilian witnesses could identify the Defendant in court on the trial date. The Defence counsel, Mr. Grey, submitted identification was not an issue he was concerned with. [ 23 ] Along with Constable Halskov’s conclusion that Ms.

Khan at some point was on the meridian in the middle of north and southbound lanes of 152nd Street, there is in addition to that, the evidence of Ms. Kim, a civilian Crown witness, to support that conclusion. [ 24 ] Ms. Kim testified “at around 10 to 10, I was driving on 152nd Street northbound in the left lane. I saw a lady standing behind a yellow sign with black stripes.” She went on to testify in cross examination “I remember her staying there that’s why I stopped my car”. She confirmed it was the same area in Crown’s Exhibit #1 photo #114. [ 25 ] Mr.

Arora, a civilian witness for the Crown, testified he was approaching this same intersection but did not see there was a pedestrian until he changed lane to the position behind Ms. Kim’s vehicle. He recalled Ms. Kahn coming from the other side of 152nd Street and running trying to cross the street and got hit. [ 26 ] Mr. Bottomley, the driver of the truck that hit Ms. Khan, testified he did not see Ms. Khan until he hit her. [ 27 ] I agree with Mr. Grey’s submissions that the best evidence which places Ms. Khan on the meridian is the Crown evidence of Ms.

Kim and the opinion evidence of Constable Halskov’s who issued the ticket a couple months later. [ 28 ] The Defendant chose not to give any evidence in this case. [ 29 ] The Crown submitted because there is some evidence from one of the Crown witnesses that the Defendant was standing on a median in the centre of north and southbound lanes on 152nd Street that she could not possibly be in an unmarked crosswalk if she was on that median.

Photos 9, 10 and 114 in Exhibit #1 show the median with yellow marking and the sign. [ 30 ] I have previously ruled the median is part of the unmarked crosswalk or so close as it could be used in conjunction with the unmarked crosswalk. I find that Ms. Khan had already crossed the southbound lanes of 152nd Street and was waiting on the meridian to decide whether it was safe to cross the northbound lanes to complete her crossing.

The third issue to decide is whether the Defendant was at fault for continuing her crossing in the unmarked crosswalk and failed to yield to oncoming traffic in the northbound lanes. [ 31 ] The Crown did not present an accident reconstruction expert as a witness in this accident case. The Crown did call three RCMP officers who did not witness the actual accident. The three civilian witnesses that testified have some differences in their recollection of the events of the 1st of March, 2016, but I accept they tried honestly to recall and reconstruct what happened in this very disturbing accident. [ 32 ] Mr.

Bottomley testified he was driving a work truck that day. He recalled he made a left turn from 72nd Avenue onto 152nd Street driving around at 50 to 60 Km/hr in a 60 speed zone. He further testified he changed lanes immediately into the curb lane

northbound from the left lane. When he approached 81st Avenue and 152nd Street, he saw a blue streak in front of his truck and hitsomething. He further testified he had no idea what it was until he stopped his vehicle and saw it was a person. [33] He further testified that just before the impact, he saw a small car to his left driven by an older lady driving about the samespeed as he was. He further testified he then saw the sedan stop to his left. He didn’t know why as he testified he could see no lights orcrosswalk at the intersection. Mr. Bottomley had no idea where this person came from that his vehicle hit.

He suggested perhaps thesedan had impaired his vision of where the pedestrian may have been. [34] Mr. Bottomley was adamant on cross examination by Mr. Grey that he was travelling northbound in the curb lane from 72ndAvenue and that at no time was he behind Ms. Kim’s vehicle in the left lane near this intersection. [35] Listening to Mr. Bottomley’s evidence, it became clear this accident was a shock to him the day it happened and even nowwhen he tried to recollect what happened.

He testified that it was barely raining at the time and could offer no explanation of why thisaccident happened other than to say the pedestrian must have ran out in front of his northbound vehicle. [36] Mr. Aurora, another Crown civilian witness, testified he was traveling at that time in the curb lane northbound on 152nd Streetfrom 72nd Avenue. He was also driving a pick-up truck. He further testified there was a dark sedan in the left lane northbound drivingreally slow and a pick-up truck was behind that car.

He testified that pick-up truck moved from behind that car to the right lane toovertake the slow moving car. Mr. Aurora recalls the pedestrian running to try to cross the street but was hit by this pick-up truck “theother guy was driving”. [37] Mr. Aurora testified it was raining that day. He recalled seeing a woman with an umbrella on the side walk on the west sidewho ran across to the east side of the street. In cross examination, Mr.

Aurora admitted while he was driving in the right lane and thepick-up which was in the left lane slightly ahead of him but behind the sedan did block his vision of the pedestrian. [38] He further testified “but when I came to the left lane and the white truck moved to the right lane when the car ahead of thewhite truck came to a halt, I could then see the car was at a halt”. He further testified he wasn’t aware of the pedestrian at first until shestarted to run. [39] Ms. Kim, another Crown civilian witness, testified she was driving northbound on 152nd Street in the left lane.

She noticed asshe approached the intersection of 81st Avenue a lady standing on the median by a yellow sign with black stripes. That was the firsttime she noticed the pedestrian. [40] She recalled “I was able to stop right away to try to figure out if she was going to keep moving or stay where she was. In one ortwo seconds she was moving so fast into the road then I heard a boom”. [41] Ms. Kim testified that it was pouring rain that day and in her words the “visibility not good”.

She recalled the traffic wastravelling fast and it was pouring rain and very dark. [42] She testified she did not see the actual hit but heard the boom. In her evidence this was the first time she had a specificrecollection of any traffic around her when she saw a pick-up truck to her right. She further testified the boom sound happened a coupleseconds after she was at a full stop. [43] Crown presented the case of Pinsent v. Brown 2013 BCSC 794 , 2013 BCSC794 where The Honourable MadamJustice Ross decided the driver was not at fault for hitting a pedestrian.

The Crown refers to page 9, paragraph 34, and then summarizeswhat was said. “The Defendant driver was not negligent when he struck a pedestrian who ran, mid block, into his path, despite the factother drivers in the area were able to stop in time.

The mere fact a driver did not see the pedestrian before striking him, is not in itselfsufficient to establish that the driver kept an inadequate lookout…” [44] Crown goes on to say in that case the driver was found to have the right of way and not negligent. [45] This particular case the Crown relied on is not helpful as the pedestrian crossed a street mid block without looking and whilewearing an IPod. This case differs greatly. What is helpful in the case the Crown presented are the other cases referred to by TheHonourable Madam Justice Ross and the legal principles she referred to.

LEGAL PRINCIPLES [46] The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, which provide asfollows: 179(1) Subject to

section 180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals arenot in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of thehighway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.

(2) A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it isimpracticable for the driver to yield the right of way.

(3) If a vehicle is slowing down or stopped at a crosswalk or at an intersection to permit a pedestrian to cross the highway, the driverof a vehicle approaching from the rear must not overtake and pass the vehicle that is slowing down or stopped. 180 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. 181 Despite sections 178, 179, 180, a driver of a vehicle must (

a) exercise due care to avoid colliding with a pedestrian who is on the highway,

(

b) give warning by sounding the horn of the vehicle when necessary, and (

c) observe proper precaution on observing a child or apparently confused or incapacitated person on the highway. [ 47 ] I find the evidence of Mr. Aurora to be a more likely scenario. He placed Mr. Bottomley’s truck behind Ms. Kim’s vehicle in the same lane until she slowed to stop. He further recalled Mr. Bottomley then moved to the right lane to pass or overtake Ms. Kim’s slowing or stopped vehicle and collided with the pedestrian. [ 48 ] The reason this sequence of events is more likely is why would Mr. Bottomley not see the pedestrian on the centre median as Ms.

Kim did when she approached the intersection if there was nothing in front of him to obstruct his view or distract him. It’s curious why he wouldn’t have seen the pedestrian in any event, as his truck is much higher than Ms. Kim’s car. [ 49 ] The question in my mind while writing this decision falls under section 179(3). Would the pedestrian Ms. Khan have been hit by Mr. Bottomley’s vehicle or any other vehicle if he would have remained in the lane behind Ms. Kim’s slowing and eventually stopped vehicle? This

section in the Motor Vehicle Act is very clear that a driver must not pass or overtake a slowing or stopped vehicle at an intersection with or without a marked crosswalk. Mr. Bottomley did testify that 81st Avenue and 152nd Street was not an intersection and there was no crosswalk so perhaps he just continued on not thinking there may be a pedestrian crossing there. That way of thinking was to his peril. [ 50 ] Having made the finding that Mr. Bottomley’s vehicle made this movement against the rules of the Motor Vehicle Act , the next question to decide was there anything Ms. Khan could have done to prevent this accident and is she guilty of

Section 180 of the Motor Vehicle Act . [ 51 ]

Section 180 pertains to crossing a highway at a point not in a crosswalk and having to yield the right of way to a vehicle. I have made the finding this area that Ms. Khan crossed was an intersection and it had an unmarked crosswalk so she had every right to cross there. [ 52 ] Right-of-way rules determine who should yield when more than one road user wants to move in the same space. It is important to know these rules because they keep traffic moving in an orderly way. But remember that you cannot always count on the other person to follow the rules.

And even if you have the right-of-way, it is still your responsibility to do all you can to avoid a crash. At intersections especially there is a lot of activity so it is important to be alert. [ 53 ] Of all the road users, the pedestrians are the most vulnerable. It is so important for all drivers to watch for pedestrians as they approach any intersection and be aware of vision blocks. [ 54 ] The evidence situated Ms. Khan, the Defendant and pedestrian, in the middle median of 152nd Street.

The law is the pedestrian has the right of way, crosswalk or unmarked crosswalk or no crosswalk if they are near your half of the road. It is always the driver’s responsibility to avoid hitting a pedestrian unless it was completely unavoidable. [ 55 ] Of course it is important for the pedestrian not to just take a leap of faith and dart out into traffic. A pedestrian must not leave the curb unless they are sure approaching vehicles on the cross street have stopped or will stop. [ 56 ] Without knowing Mr. Bottomley was going to pull into the right lane from behind Ms.

Kim’s slowing and stopped vehicle, the pedestrian, Ms. Khan, was in no position to make a reasonable assessment of whether she was putting her own safety at risk before she stepped off the median into the unmarked crosswalk to complete her journey across the two northbound lanes of 152nd Street. [ 57 ] Ms. Kim’s vehicle had stopped at the intersection when she saw Ms. Khan waiting on the median. Ms. Khan would have seen this gesture and could at that point assume any reasonable prudent driver would also see Ms. Kim’s vehicle stopped.

She could go on to assume a prudent driver would not pass a stopped vehicle at an intersection and would look to see why they were stopped. At that point, they would see a pedestrian waiting to complete their crossing of the street standing on a median in the middle of the street for all drivers to see. [ 58 ] Granted it was dark and raining but that lends even more onus on the drivers to ensure there is no pedestrians or obstructions on the roadway when a vehicle is slowing or stopping at an unmarked crosswalk and an uncontrolled intersection. Ms. Kim had no problem seeing the pedestrian. [ 59 ] R. v.

Lofdahl , 2000 BCPC 162 (CanL11), The Honourable Judge Bruce found the Defendant guilty of driving without due care and attention when he hit a pedestrian lawfully crossing Hastings Street in Burnaby in an unmarked crosswalk. “Ms. So crossed three lanes of eastbound traffic, proceeded slowly and with caution past the stop vehicle in the left lane, and then waited for the vehicles in the centre lane to stop. The time consumed in this process gave the accused ample time to direct his mind to her presence in the crosswalk.

Because the accused was approaching an intersection, where the presence of stopped vehicles in the adjacent lanes was apparent and obviously obstructed his view, his obligation to direct his mind to the presence of a pedestrian was clear regardless of the speed at which Ms. So entered the HOV lane”. [ 60 ] This case was similar to the one before me in that the evidence was the driver was 2 or 3 car length before the intersection when Ms. So stepped into the HOV lane and was hit. In the case before me, Ms. Kim heard the noise of Ms. Khan being hit which she called a “boom” 2 or 3 seconds after she saw Ms.

Khan, the pedestrian, step off the median to complete her crossing of the curb lane northbound on 152nd Street. [ 61 ] I find Ms. Khan did not jaywalk or run across 152nd Street with complete disregard for the traffic travelling northbound. She was taking all reasonable steps to avoid being hit while crossing in an unmarked crosswalk at 81st Avenue and 152nd Street. She had already crossed the southbound lanes of 152nd Street in the rain and darkness and was waiting patiently on the median for traffic to stop or clear so she could continue her crossing of northbound traffic. When she saw Ms.

Kim’s vehicle stop for her and wait, she then made the correct assumption that all other drivers approaching from behind Ms. Kim’s vehicle would see her also and stop for her to cross.

Unfortunately Mr. Bottomley did not and instead changed lanes behind Ms. Kim’s stopped vehicle without determining why she was stopped and continued part way through the intersection and collided with Ms. Khan in the curb lane. [ 62 ] I find Ms. Khan did what any reasonable pedestrian would have done and I find her not guilty of Sec. 180 of the Motor Vehicle Act and dismiss this case. L. Mayner, Judicial Justice Provincial Court of British Columbia