R. v. Hubert Date:, 2012 BCPC 459

Citation: R. v. Hubert Date: 20121231 2012 BCPC 0459 File No: AH37419232 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Regina v. Edwin Gerald HUBERT REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for Prosecution : Sgt. Smith

Appearing on his own behalf: E.G. Hubert Place of Hearing: Victoria , B.C. Date of Hearing: September 6, 2012 Date of Judgment: December 31, 2012 [ 1 ] This is a tale of two jurisdictions and how centimetres matter. [ 2 ] The Defendant, Edwin Gerald Hubert, was charged on April 7, 2012 under

section of 129(1) of the Motor Vehicle Act for failing to stop at a red light at an intersection. The alleged offence occurred in the Township of Esquimalt, which for the purposes of this case makes the case unique or at least peculiar to Esquimalt. [ 3 ] Mr. Hubert was riding his bicycle, to which was attached a small two-wheeled cart loaded with loose straw, from his home in Esquimalt to a nearby municipal recycling facility. Sgt Smith of the Canadian Forces Military Police issued him a provincial Violation Ticket under the Offence Act for proceeding through a red light.. [ 4 ] The issue, as argued by Mr.

Hubert, is whether the alleged offence occurred on property within the jurisdiction of the Department of National Defence, or outside its jurisdiction. The reason this is important is that Sgt Smith’s jurisdiction, which Mr. Hubert argues and Sgt. Smith does not dispute, is restricted to lands owned or occupied by DND. In this case, I found the land on which the alleged infraction took place lay outside DND property, by centimeters. [ 5 ] At the hearing, I concluded that on the evidence and the law, Sgt Smith did not have the authority to issue a violation ticket except on DND property and I acquitted Mr.

Hubert, with reasons to follow. These are those Reasons. [ 6 ] The alleged infraction took place at the intersection of Esquimalt and Canteen Roads. Canteen is a public road and south of Esquimalt Road, it is on DND property. It was a Saturday morning, there was not much traffic and the weather was sunny. The intersection is controlled by traffic lights. The traffic lights for northbound traffic on Canteen crossing Esquimalt are triggered either by a pedestrian-controlled button on the lamp standard at the corner or by a vehicle-triggered magnetic loop embedded in the pavement. [ 7 ] Mr.

Hubert was riding northbound on Canteen, approaching Esquimalt Road. There are two lanes on Canteen for traffic travelling in this direction; one lane dedicated to a right turn only and one lane for traffic travelling either straight ahead or turning left. Only this latter lane is controlled by the magnetic loop. All four directions have a marked crosswalk extending from the sidewalk. There is a stop line for both northbound lanes.

The stop line for the right turning curb lane is approximately a half metre from the crosswalk line and for the lane to its left the stop line is approximately 3 metres from the crosswalk, perhaps to give greater room for buses making a left turn southbound from Esquimalt onto Canteen. [ 8 ] Mr. Hubert explained that his bicycle would not trigger the magnetic loop (perhaps because it did not have enough metal content). He knew this from previous travels and is acknowledged by Sgt Smith. He faced a red light when approaching, and there was no traffic on Esquimalt.

He proceeded forward to the stop line, then across the crosswalk and Esquimalt Road against the red light. Mr. Hubert does not dispute these facts. [ 9 ] Sgt Smith was monitoring traffic at that intersection, sitting in a military vehicle in a parking lot on DND property on the southeast corner. He noted Mr. Hubert crossing Esquimalt against the red light, took pursuit and stopped him on Canteen north of Esquimalt. Across that intersection, just beyond the northeast corner is a municipal yard where residents can take garden waste which will be turned into compost. This is where Mr.

Hubert was heading. [ 10 ] Sgt Smith stopped Mr. Hubert and issued him a violation ticket for failing to stop for a red light. [ 11 ] Mr. Hubert entered into evidence a scaled plan of the intersection, provided to him by an Engineering Technologist for the Township of Esquimalt. It shows, among other things, the location of each lane of traffic, the crosswalks and the boundary line between the federal DND property and the property under the jurisdiction of the Township.

This border line is the western boundary of the Township of Esquimalt, with the DND property occupying the remainder of the area to the shores of Esquimalt Harbour. The border line by general description runs north and south along the west side of the sidewalk on the west side of Canteen Road and then runs east and west along the south side of the south sidewalk on Esquimalt Road.

All of the lines delineating each of the four crosswalks at the intersection are on the Township of Esquimalt side of the boundary lines. [ 12 ] A northbound vehicle entering Esquimalt Road from Canteen would be outside DND property by centimeters before crossing the marked crosswalk on the nearside of the intersection. [ 13 ] Section 129(1) of the Motor Vehicle Act provides: Subject to subsection (2), when a red light alone is exhibited at an intersection by a traffic control signal, the driver of a vehicle approaching the intersection and facing the red light must cause it to stop before entering the marked crosswalk on the near side of the intersection, …, and subject to subsection (3), must not cause the vehicle to proceed until a traffic control signal instructs the driver that he or she is permitted to do so. [ 14 ] Mr.

Hubert’s offence was to cross the nearside of the crosswalk when the light was red for vehicles heading northbound, as he was. Until he crossed that crosswalk line, he had not committed an offence. By the time he did so, he was centimetres, or perhaps

decimetres, outside DND property. By Sgt Smith’s own admission, his authority to issue a violation ticket for a Motor Vehicle Act offence, at least to non-military civilians, did not extend beyond the DND property boundary. [ 15 ] Of significance to this issue are the provisions of the B.C. Offence Act , which authorizes the issuance of a Violation Ticket under it. An "enforcement officer", defined in

section 1, “means any person or class of persons designated as an enforcement officer under

section 132 [the regulation making section]”. For the purposes of this case,

Schedule 1 of the Violation Ticket Administration and Fines Regulation , B.C. Reg. 89/97 is what designates such class of persons. Item 16 of

Schedule 1 lists as enforcement officers to enforce the Motor Vehicle Act : “ Officers and men of the Canadian forces while employed at defence establishments on duties that the Governor in Council, in regulations made under the National Defence Act (Canada), has prescribed to be of such a kind as to necessitate that the officers and men performing them have the powers of peace officers”. [ 16 ] In researching the law for these Reasons, I considered

section 156 of the National Defence Act ,

Chapter 22 of the Queen’s Regulations and Orders for the Canadian Forces , and the Government Property Traffic Regulations . I did not find any such prescription by the Governor in Council in the federal legislation. [ 17 ] I conclude that Sgt. Smith had no authority to issue a violation ticket to Mr. Hubert for this offence. For this reason, I find Mr. Hubert not guilty. _______________________________ H.W. Gordon Judicial Justice