R. v. R. Date:, 2012 BCPC 3

Citation: R. v. R. Date: 20120110 2012 BCPC 0003 File No: AH40258693 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.D.R. REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON Appearing for the Crown: Cpl Shane Worth Appearing in person: M.D.R. Place of Hearing: Campbell River , B.C.

Date of Hearing: October 18, 2011 Date of Judgment: January 10, 2012 Introduction [ 1 ] The Disputant, M.R., was ticketed on Quadra Island under the Motor Vehicle Act , RSBC 1996 c. 319 , on May 21, 2011 for driving a vehicle on a highway without a driver’s licence, contrary to section 24(1) of that Act. [ 2 ] Mr. R. was at the time of the alleged offence a few months shy of his sixteenth birthday. He did not have a driver’s licence. The issue raised in this case is whether the roadway on which he was driving the family vehicle was a “highway” as that term is defined in the Act. [ 3 ] Based on the evidence and my

interpretation of the meaning of “highway”, I conclude that the roadway was not a highway and I find Mr. R. not guilty. Legislation [ 4 ] There are two provisions of the Act that are relevant.

Section 1 "highway" includes

(

a) every highway within the meaning of the Transportation Act , (

b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and (

c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited, but does not include an industrial road; Section 24(1) Except when accompanied by a person authorized by the Insurance Corporation of British Columbia to examine persons as to their ability to drive and operate motor vehicles, a person must not drive or operate a motor vehicle on a highway unless, in addition to any licence or permit which he or she is otherwise required to hold under this Act, the person holds a subsisting driver's licence issued to him or her under this Act of a class appropriate to the category of motor vehicle driven or operated by him or her.

The Facts [ 5 ] Mr. R. and his family were camping at We Wai Kai Campground on Rebecca Spit Road on Quadra Island. [ 6 ] The campground is a private campground. Rebecca Spit is, as its name suggests, a spit of land forming one side of Drew Harbour on the east side of Quadra Island. A short distance further along Rebecca Spit Road is Rebecca Spit Provincial Park. Rebecca Spit Road intersects Heriot Bay Road a short distance from the entrance to the campsite. [ 7 ] The Campground is located on both sides of Rebecca Spit Road.

According to a plan of the Campground entered in evidence, the roadway into both portions of the Campground bisects Rebecca Spit Road at right angles. As one approaches this road from Heriot Bay Road, the Campground office is on the right. Beyond the office are 55 campsites, a common cooking area, and a building that houses washrooms, showers and laundry. To the left, as one approaches, is the remainder of Campsite, accessed by the bisecting roadway, with approximately 100 campsites and several buildings housing washrooms and showers. It was on the left side that Mr.

R. and his family were camping. [ 8 ] Both roads of the Campground are unpaved and controlled by stop signs at Rebecca Spit Road. There was evidence that there is a gate at each entrance, close to Rebecca Spit Road, which is locked at night. As one enters the Campsite, opposite the office, there is a sign identifying the Campground and a list of rules and regulations, the first item of which states “Please register before proceeding to campsite.” [ 9 ] Cpl Worth’s evidence was that he was driving on Rebecca Spit Road about to turn left into the portion of the Campsite that Mr. R.’s family were camped.

As he was turning, he noted a Ford Explorer making a left turn from the same portion of the Campsite onto Rebecca Spit Road. It appeared to be making a wide turn and it forced him to make a wide turn. What caught Cpl Worth’s eye was the driver was not wearing a seat belt. He motioned the driver to stop and as the two drivers’ windows were adjacent to each other, he spoke to the driver of the Explorer through the window. The discussion turned from the seat belt to whether the driver had a licence. The driver was Mr. R. and in the passenger seat was Mr. R.’s step-father.

Cpl Worth confirmed on his in-vehicle computer that Mr. R. did not have a driver’s licence of any classification. He then proceeded to issue him a ticket for driving without a licence. [ 10 ] Mr. R.’s evidence, confirmed in part by the evidence of his mother, was that Mr. R.’s step-father wanted to take him to the nearby provincial park. Mr. R. asked his mother if he could drive to the gate. She granted him that permission. Mr. R.’s intention was to drive from their camping spot to the gate and then change places with his step-father. This was not a very far distance.

He stated that he had not proceeded out onto Rebecca Spit Road when Cpl Worth stopped him. Analysis [ 11 ] There is no issue that Mr. R. was driving the Explorer on a roadway and did not possess a driver’s licence of any classification. There is an issue of whether the roadway is a highway. [ 12 ] I have two issues to decide, one factual and one legal. [ 13 ] The factual issue is whether Mr. R. was driving the Explorer from the Campsite Road onto Rebecca Spit Road when Cpl Worth stopped him. It is clear that Rebecca Spit Road is a highway under the Act.

The evidence on whether the Explorer had proceeded onto Rebecca Spit Road is conflicting. Although it appears to me rather likely that the facts are as Cpl Worth recited, it does seem that it suffers from the improbability that if both vehicles were turning left across each other’s path, on what I take to be a somewhat narrow road, the Explorer could not have been at the most very far into Rebecca Spit Road. Mr. R. says he had not yet entered that road. On this conflict of evidence, I give the benefit of my doubt to Mr. R.

I find that the Explorer had not yet entered Rebecca Spit Road when stopped by Cpl Worth. [ 14 ] This finding leads me to the more difficult legal issue. Although Rebecca Spit Road is a highway within the meaning of the Act,

what is the status under the Act of what I will call the Campsite Roadway, where I have found Mr. R. to be driving? The issue then iswhat is a highway in the context of the Campsite Roadway. [15] From my research, it appears that the We Wai Kai Campground is located entirely on the Drew Harbour Indian Reserve. Thereis no evidence of that in the trial and in any event, it is likely that R. v. Francis (SCC), [1988] 1 SCR 1025 is a completeanswer to any suggestion that the Act does not apply to a private campground on a Reserve.

So nothing turns on this point. [16] As usual in traffic court cases, I was not provided by either party with any legal authority to guide me. So my decision is guidedby my own research. [17] In analyzing the issue, I have taken my guidance from the principle of statutory

interpretation succinctly stated by Driedger (Driedger on the Construction of Statutes, 3rd ed) that words of

an Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature. This approachapplies to

definitions as much as undefined words or terms. I have also considered the discussion on the meaning of highway in suchcases as ICBC v. Routley (BCCA, CA19534, December 8, 1995), ICBC v. Bruneau (2000 BCSC 786), Strussi v ICBC (2006 BCSC1400), Jago v. British Columbia (Superintendent of Motor Vehicles) (2011 BCSC 1454) and Gallardo v.

ICBC (2007 BCPC 253, 2007 BCPC 0253). [18] The meaning of highway is to be determined objectively, and not on the intent or purpose of the driver. [19] If any paragraph of the definition of “highway” is to apply in this case, it is paragraph (b): every road, street, lane or right of waydesigned or intended for or used by the general public for the passage of vehicles. Conclusion [20] In my view, on the facts of this case, the Campground Roadway was not designed or intended for or used by the general public. It was private roadway for the use of the registered users of the Campsite and their guests.

Any use made of the roadway by others wasby sufferance rather than by right or invitation. I conclude it is not a highway within the meaning of the Act. Two factors I have takeninto account in reaching this conclusion is the requirement of those entering the Campground to register and gates at the entrance to bothsegments of the Campsite that are locked at night. [21] In arriving at this conclusion, I am alive to what might have been a mischief the Legislature intended to be addressed by thedefinition.

And that mischief is, should those who had a legitimate right to be in the Campground, such as the other campers, not beprotected by the application of the Act. Might it have been the Legislature’s intention to grant them this protection by legislating theroads of the private campgrounds to be a highway and thereby prohibiting unlicensed drivers from driving about private roadways ofplaces such as the We Wai Kai Campground? [22] In considering this mischief, I have applied the plain meaning of the words of paragraph (b).

The words “road, street, lane orright of way”, in conjunction with use by the general public, denote public type roadways. Paragraph (c), in comparison, addresses“private places or passageways”. [23] In addition, the case law has pointed out the difference between the use of the term “general public” in paragraph (

b) and“public” in paragraph (

c) of the definition. The former has a narrower meaning than the latter. Whereas all persons using theCampground may be the “public”, they are not the “general public”. Paragraph (

c) only has application to a private place or passagewayand then only for the purpose of parking or servicing of vehicles. In other words, the Legislature has addressed private roadways, such asthose in the Campground, and restricted its application to parking and servicing of vehicles. The Campground Roadway is not for thepurpose of parking or servicing of vehicles. Decision [24] As I have concluded that Mr. R. was only driving on the Campground Roadway, and that the Roadway is not a “highway” withinthe meaning of the Act, I acquit him of the charge. __________________ H. W. Gordon Judicial Justice