R. v. Bianco Date:, 2013 BCPC 18

Citation: R. v. Bianco Date: 20130121 2013 BCPC 0018 File No: AH29331155 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v . MARIO BIANCO REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H. W. GORDON Appearing for Crown : Cst. R. Guineau Appearing on his own behalf: Mario Bianco Place of Hearing: Sidney , B.C. Date of Hearing: October 1, 2012

Date of Judgment: January 21, 2013 [ 1 ] This is a case of anger stepping in and reason stepping out. It is atypical in that it takes place in a carwash at a service station, and not on the roadway. [ 2 ] The Disputant, Mario Bianco, is charged with driving on July 7, 2012 without reasonable consideration for other persons using the highway, contrary to section 144(1)(

b) of the Motor Vehicle Act . [ 3 ] The scene is the Co-op gas bar, convenience store and carwash on Highway 17 at Glidden Road in Central Saanich. The complainant is an off duty RCMP officer. [ 4 ] Mr. Attwell is an RCMP officer in the Victoria area, currently assigned to the local Integrated Road Safety Unit. He testified as follows. On Saturday, July 7, 2012, he parked his personal vehicle next to the convenience store at the Co-op gas bar on Highway 17 at Glidden Road in Central Saanich. It was a hot and sunny day. He had with him his two sons, age 5 and 8.

He noticed a black Nissan Frontier pickup truck parked to his immediate left. As he passed by the passenger side window of the Frontier, he noticed an open can of Kokanee brand beer in the centre console. He noted the last four numbers of the licence plate were 8128. [ 5 ] He went inside, bought a car wash ticket, went outside, got some gas and then drove around the back and got in line for a car wash. He was the fourth vehicle in line. Immediately in front of him was the same black Frontier.

His vehicle was at a 45° angle behind and as such had a clear view into the driver’s side window of the cab of the Frontier. Because of the angle he was at, he could still see only the last four numbers of the licence plate: 8128. He could see the left elbow of the driver resting on the driver’s open window. Twice, in the space of about 5 minutes, he noted the driver with his left hand put to his mouth of what looked to be a can identical to the Kokanee can he had earlier seen in the centre console. As the lineup of cars moved forward, Mr.

Attwell was able to be directly in line behind the Frontier and noted the licence plate to be DF8128. [ 6 ] Mr. Attwell felt he had an obligation to report the driver to the local police dispatch as possibly impaired. He did so on his cell phone, giving a description of the vehicle and the licence plate. He also, surreptitiously, he thought, took a picture of the back of the vehicle with the camera on his cell phone. Apparently, it was not surreptitious enough, because a second or two later, he said the driver exited his vehicle, slammed the driver’s door and he was looking not too pleased.

The driver was wearing a light coloured shirt, black cap and sunglasses. [ 7 ] As this driver walked back towards Mr. Attwell’s car, Mr. Attwell concluded that for the safety of his two children, he would get out of his vehicle to speak to this driver. The driver asked if Mr. Attwell had taken a picture of his truck, to which he answered yes. He showed the driver his police identification and told the driver he had observed him drinking beer in his vehicle. There followed a heated discussion between the two men. Mr.

Attwell described the driver as being in a state he had often seen of others before (presumably in his professional capacity): agitated and in a fight or flight mode. He had heavy breathing and was fidgety and argumentative. [ 8 ] What happened next is the substance of the charge of which Mr. Bianco stands charged. The driver returned to his vehicle. While Mr. Attwell was talking on his cell to dispatch, he was standing about 5 feet behind and to the left of the back of the Frontier. Out of the corner of his left eye, he noticed the reverse lights on.

Immediately, the Frontier reversed so quickly, he turned to brace himself and hit the back of the Frontier with his arm. Mr. Attwell yelled “Hey”. The response of the driver was “I am not going to be putting up with any more of your bullshit.” [ 9 ] He says the driver then hit the gas, and the pickup jumped the curb to his left. This curb formed the edge of an approximately three foot wide barrier separating the carwash entrance from the paved entrance to the Co-op from Glidden Road.

Between the two curbs are small smooth river rocks and down the linear length of the divider are spaced large boulders and small woody bushes. The Frontier drove over this divider, and through the paved exit between the store / gas pumps on the left and the carwash on the right, at a high rate of speed. When the driver approached the highway, he tapped his brakes, gunned the engine, spinning his tires and the back end fishtailed as it sped off onto highway 17.

He says that there were other patrons of the gas bar and store on the lot at the time. [ 10 ] The prosecution entered a picture of the Frontier taken by Mr. Attwell when he was sitting in his vehicle prior to the confrontation. It is a fairly large pickup truck, of the 2010 model year. It is the product of what many manufacturers seem to do: start with one size and every few years inject it with steroids and 6 or 7 years later, it is unrecognizable from the first year’s model. I comment on this, because it gives weight to the evidence of Mr.

Attwell that it could easily mount the separating barrier and accelerate quickly. [ 11 ] Mr. Attwell described all this occurring while he was talking to dispatch. [ 12 ] Cst Luc Beauvais of the Central Saanich police then gave evidence that dispatch received a call at 4:52 pm on July 7, 2012 of a possible impaired driver. He received updated information that the vehicle was heading northbound on the highway. He checked the licence number given to him through CPIC on his police computer and it was associated with an owner at a nearby address.

He drove to that address and noted a black pickup matching the description and licence plate number he had been given. [ 13 ] The registered owner, Giuseppe Bianco, answered the door and in answer to the reason given by Cst Beauvais as to why he was there, advised that his son, Mario, had been driving the Frontier. The son then came to the door, spoke to Cst Beauvais. The son described briefly what happened, that he was at the carwash and that an incident happened with an off-duty officer. He said the officer was freaking out, the discussion heated up and so he left.

After the appropriate demand, Cst Beauvais took an ASD breath sample and the reading was 0.44.

[ 14 ] Cst Beauvais returned to the Co-op gas bar. He observed footage of video surveillance installed at the Co-op. Apparently there was no camera directed at the car wash. There was footage that showed Mr. Attwell looking in the vehicle next to his, going into the store and then proceeding to the pumps. It also showed Mario Bianco walking to his Frontier and driving toward the car wash. Later, it shows a black pickup accelerating from back of the car wash and entering the highway at a high rate of speed.

Cst Beauvais also testified that that the video footage showed a number of people both in the store and walking to and from their vehicles and the store. [ 15 ] Cst Beauvais then walked to the entrance to the carwash. He took photos of the entrance to the car wash. It is paved with red brick. He described, as shown in the photos, a fresh skid mark that is consistent with a vehicle accelerating quickly at approximately the location described by Mr. Attwell.

Cst Beauvais did not give evidence of his training in interpreting skidmarks. [ 16 ] Cst Beauvais said a copy of the video footage could not be entered in evidence as it was not in a format that was compatible with the video equipment at the courthouse. [ 17 ] Mr. Bianco testified that he had been at a friend’s house shortly before this incident, had a beer and then opened another. He had not finished that beer when he left his friend’s residence. So he took the remainder with him. I am told this is known as a road rocket.

He then drove to the Co-op gas bar to have his father’s truck washed. [ 18 ] As he waited in line, he noticed the driver in the vehicle behind him taking pictures of his truck or licence plate. He hopped out and went to the driver’s window. At this point Mr. Bianco said he was not angry. The window was rolled up. The driver looked aggravated. Mr. Bianco stepped back wondering how to deal with the situation. The driver said he was a cop, but the badge he flipped out did not look like that of a cop, so he did not entirely believe him. He said it was kind of scaring him.

He went back to his truck, and the driver behind then came up to his window and continued to berate him. He took it as a threat. [ 19 ] Mr. Bianco decided to leave to get out of that situation. As his truck was trapped between the vehicles in front of him and behind him, he decided to drive over the low barrier and leave. He says at no time did he spin his tires. He testified the pickup has traction control that prevents that happening. It will not fishtail. As he approached the highway, there was heavy traffic, and so he drove on the paved shoulder before pulling into traffic.

He said he was in full control. [ 20 ] Mr. Blanco explained that as a result of previous dealings in the court system he had recently finished an anger management and respectful relationship course. Part of what he learned was to use the tools in the anger-management “toolbox”. These courses taught him that when he was in stressful situations, the best course of action is to leave the scene rather than remain and let the matter escalate. This is why he left after the confrontation with Mr. Attwell. He testified he was not angry until Mr.

Attwell returned to his driver’s window and continued to berate or threaten him. [ 21 ] Of the two versions of the confrontation between Mr. Attwell and Mr. Bianco, the latter’s struck me as closer to what likely took place, in words used, demeanour and actions. That said, I think it is unlikely that either of these two men acted as benignly as each described their own behaviour. [ 22 ] The facts of significance to this charge are what occurred after the pickup crossed the barrier at the car wash, driving through the gas bar lot and proceeding onto the highway.

On this portion of the scenario, I accept the testimony of Mr. Attwell, as corroborated by Cst Beauvais, who observed the video surveillance footage that captured all of this. Although I was not able to view the video myself, I find Cst Beauvais’ evidence on this to be credible. I therefore reject Mr. Bianco’s recollection of the manner in which he drove away. The manner of driving described by Mr. Attwell and Cst Beauvais is consistent with a person who, by his own admission, was angry and determined to flee.

And I find the truck was driving at a speed excessive and dangerous in a relatively confined and busy gas bar lot, in a manner that displayed a lack of total control by both spinning of tires and fishtailing and when pulling onto a busy highway. [ 23 ] A supporting piece of evidence that the tires of the pickup could spin is the pictures in evidence of the skidmark in the entrance to the carwash.

Although my description would be scuffmark, rather than skidmark, there is a clean mark about a metre to 1.5 metres in length on the dirty red brick of the entrance, with 3 parallel lines consistent with a pattern that would be left by the spacing between the rubber treads. It appears recently left, and is at a place and at an angle where the pickup would have driven in leaving the carwash entrance and over the barrier. [ 24 ] Cst Beauvais testified that a factor in laying this charge was the fact that Mr. Bianco had been drinking.

I will make it clear here, as I did at the hearing, that I do not find that liquor was a factor in supporting the charge. It was strictly the manner of driving, which I conclude was a result of the anger created by the confrontation between Mr. Attwell and Mr. Bianco. [ 25 ] The test for whether a driver has driven without due consideration for others on the roadway under section 144(1)(

b) of the Act is whether there was a marked departure from what would reasonably be expected of a driver in the circumstances. [ 26 ] I have found that after Mr. Bianco left his standing position at the entrance to the carwash, he was driving fast, and he drove such that the pickup’s wheels [or a wheel] spun and the rear end fishtailed. This all took place in a gas bar lot in which there were vehicles entering and exiting and patrons walking between those vehicles and the convenience store. It is this manner of driving that I find was a marked departure from what would reasonably be expected by a driver.

It put all those in that area of the gas bar at risk. Mr. Bianco was not in control. He was angry and determined to leave as quickly as possible. He did not even wait for traffic to clear on the highway before entering but instead drove along the right paved shoulder until he could pull in. [ 27 ] For these reasons, I find Mr. Bianco guilty of driving without reasonable consideration for other persons using the highway under section 144(1)(

b) of the Act. If he requires time to pay the ticketed amount, he can make application to the Registry for a hearing on that issue.

______________________ H. W. Gordon Judicial Justice