R. v. Stein Date:, 2013 BCPC 313

Citation: R. v. Stein Date: 20131029 2013 BCPC 0313 File No: AH48406012-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAUL STEIN REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. L. EDWARDS Appearing for the Crown: Sergeant Graeme LeBlanc Appearing in person: Paul Stein Place of Hearing: Victoria , B.C. Date of Hearing: October 16, 2013 Date of Judgment: October 29, 2013

BACKGROUND: [1] This matter first came before the Court on December 7, 2012. The disputant was found guilty of the offence of driving withouta seatbelt and ordered to pay a reduced fine (See R. v Stein, 2013 BCPC 70 . Mr. Stein appealed his conviction and with theCrown's assent, the conviction was set aside and a new trial ordered (See Her Majesty the Queen v. Stein, Victoria Reg'y AH48406012,June 26, 2013 (BCSC). [2] A second trial of the matter was heard on October 16, 2013 at the conclusion of which I found Mr.

Stein guilty of the offenceof driving without a seatbelt and ordered him to pay a fine of $167 with written reasons for the decision to follow. These are thosereasons. THE FACTS: [3] The evidence of the Crown was that on September 5, 2012 Sergeant LeBlanc, a fifteen year member of the Victoria PoliceDepartment, was on duty and in uniform conducting traffic related duties as a member of the Integrated Road Safety Unit.

His particularfocus on that day was targeting drivers who were driving aggressively, using their cell phones while driving or who were not wearingseatbelts at the intersection of Hillside Avenue and Doncaster Street in Victoria, B.C. [4] At approximately 3:17 p.m., Sergeant LeBlanc was standing on the sidewalk on HIllside Avenue at the northeast corner of theintersection of Hillside Avenue and Doncaster Street in Victoria, British Columbia observing traffic at the intersection.

At thisintersection, Hillside Avenue has 2 lanes in each direction for traffic travelling east and west as well as a turning lane, in each direction,for traffic turning onto Doncaster. The intersection is controlled by a 3 stage light which was in the red cycle at the time. [5] On the date in question, the speed limit on Hillside Avenue was 50 kilometres per hour; although the area was underconstruction no special construction speed zone signs were posted. [6] Sergeant LeBlanc's attention was drawn to a vehicle that was stopped for a red light in the #1 or "fast" lane of Hillside headingwest.

Sergeant LeBlanc described the vehicle as an older, white GMC Van. Sergeant Le Blanc noted that the driver, the lone maleoccupant of this vehicle, was not wearing a seatbelt. [7] Sergeant LeBlanc stepped off the sidewalk, stopped traffic in the curb lane and waived the driver of the van over ontoDoncaster Street.

Sergeant Le Blanc approached the driver and noted that he was wearing a white shirt and that the vehicle had a blueseatbelt consisting of a full lap belt and shoulder extension which the driver still was not wearing. [8] The driver of the van provided a BC Driver's Licence with a photograph and bearing the name of Paul Stein and identifiedhimself as one and the same. [9] Sergeant Le Blanc advised Mr. Stein of the reason for the traffic stop, asked him if his seatbelt worked and then issued Mr.Stein a Violation Ticket AH48406012 under s. 220(4) of the Motor Vehicle Act for failing to wear a seatbelt. Mr.

Stein signed the ticket,put his seatbelt on and drove away. [10] Under cross-examination Sergeant LeBlanc agreed that he did not ask Mr. Stein why he was not wearing a seatbelt and statedthat he would expect a driver to claim the exemption at the time he was notified of the reason for the traffic stop. Sergeant LeBlanc alsoagreed with Mr. Stein's suggestion, in cross-examination, that Mr. Stein did not "challenge" the officer's claim that he was not wearing aseatbelt and agreed that there was an elementary school in the neighbourhood but that it was 2-3 blocks away from the intersection atissue. Mr.

Stein posed a number of unusual questions to Sergeant LeBlanc with which he agreed including Mr. Stein's suggestion that atthe time of the traffic stop he was not driving in reverse, was not under the age of 16 and did not have a doctor's note. The officer alsoagreed that he did not conduct a search of Mr. Stein's motor vehicle in order to confirm that it was a painter's vehicle. [11] After this unusual exchange Mr. Stein testified on his own behalf.

He acknowledged that he was not wearing a seatbelt whenstopped by Sergeant LeBlanc on the date in question but asserted that he was entitled to be exempt from the requirement to wear aseatbelt because of the provisions of s. 220(5)(

c) of the Act which he says are applicable to him. [12] Mr. Stein testified that at the time in question he was employed as a Production Manager for a painting business, Top CoatPainting. He testified that his employment requires him to carry out various tasks including: supervising up to 15 painting projects a day;delivering materials to work sites; providing cost estimates to clients; managing properties; conducting warranty checks on previouslycompleted projects; delivering water to employees, visiting property managers and performing administration and finance tasks in theoffice.

He testified that the business is especially busy during the summer months which he described as being from March to Octoberand that, at the time of the alleged offence he was working 12 hour days; he also said that he worked from 6 a.m. to 7 p.m. [13] Mr. Stein testified that on September 5, 2012 he was driving a vehicle that he described as the company "paint van" bearing acommercial decal. Mr.

Stein asked the Court to accept as an exhibit a document which he compiled consisting of a Google Map of theOaklands area with 7 locations marked on the map with a table inserted identifying those 7 locations which he referenced as his"travelling stops" on the day in question. Mr. Stein acknowledged that he did not know all of the stops that he made that day - in fact,Mr.

Stein did not recall any particular time that he was at any location that day but he recalled making these "interval stops". [14] He says that on the day in question, he first drove to the home of a client on Fernwood Rd where he was checking on theprogress of the project and delivering paint. He then proceeded to his second "stop", a client's home on Avebury Avenue , which he

estimated to be approximately one block from the 1st stop and where he was "following-up on an estimate proposal" - what this entailed he did not say. He then proceeded to drive a short distance to an employee's home on Doncaster Street where he indicated that he had driven the employee for his lunch break- there was no evidence that this was a requirement of his job nor that he alighted the vehicle at this stop.

His third stop which required him to alight the vehicle was at a client's home on Myrtle Street where he was checking on a warranty issue including taking photographs and taking notes with respect to the claim. His fourth stop that required him to alight the vehicle was at the Colour Mart Paint Store on Hillside Avenue where he was dropping off items and where he said he was likely picking up paint. From there, Mr. Stein testified that he ran across to the Subway Restaurant on Hillside Avenue where he was ordering and taking out sandwiches for himself and a few other employees of the company.

It was following this lunch break when Mr. Stein had re- entered his vehicle and was en route to a client's home on Oakland Ave that he was stopped by Sergeant Le Blanc for failing to wear his seatbelt. [ 15 ] Mr. Stein testified that he was forced to take a rather circuitous route which took him a number of blocks out of his way - from the Colour Mart Store where he last alighted his vehicle prior to his lunch stop to his next destination, on Oakland Avenue - given the construction in the area and given that he could not cross Hillside Avenue.

It was this route that caused him to cross the path of Sergeant Le Blanc. Mr. Stein testified that he would have been at the Oakland Avenue location for a half hour or so as he was to undertake an estimate of a paint project at that residence and that after that he was headed to Central Saanich to another work site. [ 16 ] Mr. Stein testified that he made all of the identified "stops", which would have included the traffic stop, in approximately one half hour. Under cross-examination he stated he had no receipts to verify the timing of any of these stops and that he did not note the time of the stops.

He testified that he estimated the total time for all of his tasks and driving to and from each of these locations at 15-30 minutes. He stressed that traffic was heavy and that there was construction in the area of the Hillside mall and Hillside Avenue in the area of the traffic stop. [ 17 ] Mr. Stein limited his testimony to his employment duties that had him driving in the Oakland area for what he guessed to be one half hour before and immediately following the traffic stop by Sergeant Le Blanc.

He did not testify as to his driving related duties for the remainder of his 12-13 hour day except to note that after the Oakland Avenue stop he was "headed out to Central Saanich". [ 18 ] Mr. Stein did not know his speed that he was travelling at any point prior to the traffic stop but rather, testified that he could not recall exceeding 40 kilometres per hour that day and gave the construction in the area and the presence of a school nearby as reasons why he did not believe he would have exceeded 40 kilometres per hour. [ 19 ] Mr. Stein offered up an undated Memo "To Whom it May Concern" signed by Peter Saldat.

Mr. Stein asked the Court to accept the document, advised the Court that what Mr. Saldat said in the memo was "irrelevant" and hearsay but also asked the Court to accept it as proof that there was a company known as TopCoat Painting and that it did have customers. I find that nothing turns on the document and I give it no weight. I accept Mr. Stein's own evidence that he was an employee of Top Coat Painting on the date in question and that he was engaged in his duties which included visiting work sites on September 5, 2012. [ 20 ] Under cross-examination, Mr.

Stein offered three explanations for his failure to claim an entitlement to an exemption from the requirement to wear a seatbelt. He testified that he was not aware of the exemption provision in the Act at the time he was stopped; next, he claimed that while his lack of knowledge was the main reason for his failure to claim the exemption, he added that he thought he should "just obey", stating that there was "a lot of evidence that when you disagree with police things can altercate". Mr.

Stein stressed that that he was concerned about police brutality given coverage of such events that he purported to have seen on YouTube and elsewhere if he were to in anyway disagree with the officer who was alleging this violation. He stated that his fear was reasonable given that the officer had a gun and a taser. The Issue: [ 21 ] Is Mr. Stein, a "person" within the meaning of s.220(5) (

c) of the Motor Vehicle Act who is entitled to claim an exemption from the legislated requirement for drivers of motor vehicles to wear seatbelts in the Province of British Columbia? That is to say, is Mr. Stein a person who was actually engaged in work that required him to alight from and re-enter a motor vehicle at frequent intervals and who, while engaged in that work, did not drive or travel that vehicle at a speed exceeding 40 km/hr, so as to exempt him from the requirement to wear a seatbelt. The Law: [ 22 ]

Section 220 of the Motor Vehicle Act, RSBC 1996, c.318 provides as follows regarding the requirement for drivers to wear seat belts: 220

(4) A person in a motor vehicle being driven or operated on a highway must, if the motor vehicle has properly attached to it a seat belt assembly for the seating position occupied by that person, wear the complete seat belt assembly in a properly adjusted and securely fastened manner. [ 23 ] Subsection (5) sets out those persons who are exempt from complying with the requirement of s.220(4): (5) Subsection (4) does not apply to a person (

a) driving a motor vehicle in reverse,

(

b) who is in possession of, and produces on request to a peace officer,a valid and subsisting certificate (

i) issued by the superintendent on the recommendation of a medical practitioner, or (ii) in the form established by the superintendent, signed bya medical practitioner and issued for a period not exceeding 6 months, certifying that the person is, (iii) for the period stated in the certificate, unable for medicalreasons to wear a seat belt assembly, or (iv) because of the person's size, build or other physical characteristic, unable to wear a seat belt assembly, or (

c) who is actually engaged in work that requires him or her to alight from andre-enter the motor vehicle at frequent intervals and who, while engaged in that work, does not drive ortravel that vehicle at a speed exceeding 40 km/hr, or (

d) under age 16. POSITION OF THE PARTIES: [24] As I have noted earlier, the Crown was represented in this matter by Sergeant Le Blanc and Mr. Stein was self-represented. TheCrown argued that Mr. Stein had acknowledged that he was driving without wearing a seatbelt; that there was no evidence as to thespeed he was actually driving prior to the traffic stop; and that his estimate as to the time it had taken him to perform his tasks and drivebetween the identified locations was not realistic. The Crown further argued that Mr.

Stein had manipulated his evidence to suit hisneeds and that his explanation for his failure to assert a claim to the exemption at roadside was not a logical one. The Crown argued thatMr. Stein was not entitled to the exemption. [25] Mr. Stein offered several arguments throughout the trial - interspersing argument with testimony. I have attempted tosummarize here each of the arguments that he raised at varying points in the process. First, he argued that his lack of knowledge of theexemption at the time was irrelevant if he was entitled to it by law.

Then, he implied that the Crown had an obligation to ferret out anyexemption to which he might be entitled. He stressed that Sergeant Graeme should have noted that there was commercial decal on hiswindshield, should have assumed from the van and his attire that he was "working" and should have questioned him about whether hewas entitled to the exemption. He argued by way of explanation that he had not claimed the exemption at the time of the stop as hefeared police brutality if he in anyway disagreed with the officer.

He argued that he knew the rule of law was found by the Courts whichI take it to mean that he did not think the officer should decide his entitlement to the exemption. [26] Mr. Stein argued that there is no case law interpreting the meaning of s 220(5). He referred the Court to a Black's LawDictionary, (5th edition) definition of the terms "frequent" as "to visit often; to resort to often or habitually" and "work" as "to exert one'sself for a purpose; to put forth effort for the attainment of an object; to be engaged in the performance of a task, duty or the like". Healso urged the Court to consider

definitions of the terms "frequent", "work" and interval" found in the Canadian Oxford CompactDictionary, 2002 edition; "Frequent" being defined as "occurring often or in close succession; habitual, constant, found near together;numerous"; "Work" being defined as "the application of mental or physical effort to a purpose"; "a task to be undertaken"; " a thing doneor made by work"; "the result of an action"; "an achievement", and "Interval" being defined as "an intervening time or space"; "an openspace between two things or parts of the same thing". [27] Mr. Stein stated that the Court must turn to Driedger's principles of statutory

interpretation as outlined in the 2d edition of hiswork and to the Supreme Court of Canada's decision in R. v. MacIntosh endorsing Driedger's purposive or modern approach to statutoryinterpretation to interpret the language of the exemption. [28] I pause to take notice of the fact that allegations of seat belt violations are frequently disputed in Traffic Court in BritishColumbia and there appears to be considerable uncertainty on the part of both law enforcement officials and drivers as to when a personqualifies for an exemption from the provisions in s. 220(4) of the Motor Vehicle Act.

So, while the wording differs slightly from onejurisdiction to another, it appears that most Canadian provinces have legislation substantially similar in scope and intent to BritishColumbia's seat belt legislation and the exemptions, thereto and I turn to the Courts in those jurisdictions for guidance as to how theyhave interpreted similar provisions. ANALYSIS OF THE LAW: [29] Public safety on the highways is a broadly held concern by legislators in Canada.

Legislation mandating the wearing ofseatbelts has been a response to concerns around the number of fatalities and serious injuries that have been attributed to a failure to wearseat belts. The Courts of this province have found that seat belt legislation is an integral part of a broad legislative scheme to promotehighway safety and minimize the overall human and economic impact cost of accidents. See e.g. R. v. Warman 2001 BCSC 1771 citing R. v. Kennedy (BCCA); leave to appeal denied 1998 SCCA No. 10.

[30] Legislators have balanced this concern for public safety with a recognition that for certain persons it would be impossible orimpracticable to wear a seat belt for a variety of reasons. Exemptions to the requirement have, therefore, been carved out in slightlydifferent ways from one jurisdiction to the next in order to ensure that certain individuals will not be subject to punishment incircumstances where it would be unfair to do so. [31] Several provinces have enacted legislation which very closely resembles the wording found in the exemption provision under s.220(5) of the Motor Vehicle Act at issue here.

For example, Nova Scotia's legislation exempts drivers who, in the course of their work,are entering and exiting their vehicles "at frequent intervals". [32] In Ontario, the Seat Belt Assemblies Regulation, RRO 1990, reg.613 specifically identifies the persons entitled to the exemptionfrom the seat belt requirements under the Highway Traffic Act including: police officers in the performance of their duties; employeesof Canada post engaged in rural mail delivery; co-drivers asleep in a sleeper berth; persons in police custody and taxi drivers. [33] In Saskatchewan, the Traffic Safety Act, S.S. 2004, c.

T-18.1provides that operators of a motor vehicle registered in a certainclass (PC) are exempt from wearing seatbelts provided that the operator is "on a regularly scheduled route and is travelling at speedsunder 40 kilometres per hour". [34] In Newfoundland and Labrador the seat belt requirement is found in the Highway Traffic Act.

The wording is nearly identical tothat in BC with the exception that the person claiming the exemption must while engaged in the work at issue, must not drive or travel ina vehicle at a speed in excess of 50 kilometres per hours, i.e. 10 kilometres per hour faster than in British Columbia. [35] I am not aware of any instance in British Columbia where the courts have considered the exemption provisions of s. 220(5)(c)of the Motor Vehicle Act,(apart from the earlier decision of Justice Gordon in this matter at the trial of first instance).

As noted above, Iam guided, however, by decisions of other Canadian courts considering similar provisions. [36] In R. v. Locke, (Nfld. & Labrador, Prov. Ct) Judge Gormant undertook a detailed examination of theprovisions of the Act before finding Mr. Locke guilty of operating a motor vehicle while not wearing a seat belt, contrary to section178(3) of the Highway Traffic Act RSNL 1990, Ch. H-3. Mr.

Locke had argued, at trial, that he was exempt from the seat beltrequirement because he was employed as a taxi driver who must get in and out of his vehicle at frequent intervals; he believed that hiswas a situation contemplated in s. 178(5)(

c) of that Act which provides that

c) a person who is actually engaged in work which requires the person to alight from and re-enter a vehicleat frequent intervals and who, while engaged in the work, does not drive or travel in that vehicle at a speed exceeding 50 kilometres an hour; [37] Commencing at paragraph 10, of the decision, Justice Gorman undertook an analysis of the meaning of the provision: [10] In R. v. Aisthorpe 2006 NLCA 40 (2006), 257 Nfld. & P.E.I.R. 1 (N.L.C.A.), the Court of Appeal indicatedthat statutory

interpretation requires a court to consider the purpose of the legislation and to adopt a "contextual” approach in which “consideration” is given to the “other words of the provision." [11] In R. v. Plummer (ON CA), (2006), 217 O.A.C. 201, the Ontario Court of Appeal concludedthat the modern approach to statutory

interpretation requires a court to consider the “grammatical and ordinary meaning of the provisions in question, the legislative history and the intention of Parliament or the Legislature, the scheme ofthe Act, and the legislative context” (at paragraphs 12 to 14): As is well known, the Supreme Court of Canada has adopted the purposive or modern approach to statutoryinterpretation as described in Driedger's Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. This principle of statutory

interpretation applies in civil and criminal cases. See R. v. Sharpe, 2001 SCC 2 ,[2001] 1 S.C.R. 45 at para. 33 and R. v. Russell, 2001 SCC 53 , [2001] 2 S.C.R. 804 at para. 32. However, if, afterapplying the purposive approach, genuine ambiguities remain, the court will adopt that

interpretation favouring theliberty of the subject. See R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686 at para. 29. The process of statutory

interpretation favoured by the Supreme Court of Canada requires a court to consider thegrammatical and ordinary meaning of the provisions in question, the legislative history and the intention of Parliamentor the Legislature, the scheme of the Act, and the legislative context. See R. v. Ulybel Enterprises Ltd., 2001 SCC 56 , [2001] 2 S.C.R. 867 at paras. 28-52. THE PURPOSE OF

SECTION 178 OF THE HTA [12] The HTA is obviously concerned with regulating the use of motor vehicles within the Province. The purpose ofsuch regulation is to promote safe driving practices and thereby lessen the injuries and deaths which occur on the

Province’s highways.

Section 178 of the HTA is specifically designed for this purpose. As pointed out by the Alberta Court of Appeal in R v. Maier 1989 ABCA 321 (1989), 52 C.C.C. (3d) 419, the “risk of injury or death isdecreased when a seat belt is worn.” Thus, the purpose of

section 178 of the HTA can be fairly described, as it was by the Ontario Court of Appeal in relation to a similar provision in that Province, as attempting to minimize “driver andpassenger injuries resulting from car collisions” (see R. v. Tassone (2007), 2007 ONCA 215 , 44 M.V.R. (5th) 81). However, the HTA also sets out specific exemptions to this general rule. In the context of section 178(5)(c), the Province hascreated an exemption, but maintained a safety component by requiring that it only applies if the motor vehicleis being driven at a speed not exceeding fifty kilometres an hour. [13] Based upon the purpose and intent of

section 178 of the HTA, I do not believe that the Legislature intended toprovide taxi drivers with a blanket exemption from the wearing of seat belts. Rather, I conclude that the Legislature’sintent was to provide an exemption to them, and others involved in similar work, while they are engaged in a particular aspectof their work.

Thus, the seat belt requirement contained in section 178(3) of the HTA applies to all taxi drivers and otherindividuals, unless they establish that at the specific time they were not wearing a seat belt, they were: (1) engaged in work which required them to alight from and re-enter their vehicle at frequent intervals; and (2) that while engaged in this work, they did not drive or travel in their vehicle at a speed exceeding 50 kilometres an hour. [14] Thus, a taxi driver who is taking a passenger home or to a grocery store must wear his or her seat belt.

It isonly during a time period that they are actually alighting from and re-entering their vehicle at frequent intervalsthat the exemption provided applies.[1] I find comfort in reaching this conclusion in R. v. Matthews reflex, (1987), (NL SC), 70 Nfld. & P.E.I.R. 30 (N.L.S.C.). In that case, the accused was acquitted by the trial judge ofhaving failed to wear a seat belt, contrary to the then

section 199.1(3) of the Highway Traffic Act, R.S.N. 1970, c. 52, onthe basis of an exemption, contained at the time, in

section 199.1(5)(

c) of the HTA. That

section provided anexemption to a person: who is actually engaged in work which requires the person to alight from and re-enter a vehicle at frequent intervals and who,while engaged in the work, does not drive or travel in that vehicle at a speed exceeding fifty kilometres per hour. [15] In setting aside the acquittal, Mr. Justice Noel stated: On occasions the respondent may have engaged in work which required him to alight from and re-enter his vehicle at frequentintervals, but this was not one of them.

The exemption does not apply to a person because his work often requires him to alightand re-enter at frequent intervals nor because he drives a commercial vehicle and ordinarily makes frequent pick-ups anddeliveries. The exemption applies only to one "who is actually engaged in work .....". In the context of this case, the respondentwas exempt only if, when stopped by the police, he was actually engaged in work which required frequent alighting and re-entering and that was not the case. When

section 199.1(5)(

c) is read with the other provisions of

section 199.1(5), the intention tolimit the relevant exemption to those who would be unreasonable inconvenienced is readily apparent. When the respondententered his vehicle to drive to the post office, a distance of about three kilometres, he would not have been unreasonablyinconvenienced by wearing a safetybelt. (emphasis by underlining added) [38] The only other case that I have found that is substantially on point is R. v. Vineberg, 2004 NSSC 175.

Vineberg was aconviction appeal from a finding of guilt made by a Provincial Court Adjudicator under s. 175 of the Motor Vehicle Act of NovaScotia for failing to wear a seatbelt. The learned adjudicator found that the driver did not meet the requirements of the provision whichrequired that the driver be required to leave his vehicle "at frequent intervals" in order to qualify. On appeal, Mr Justice Pickupoverturned the conviction noting that Mr. Vineberg was a delivery driver who had left and re-entered his vehicle some 26 times on thedate in question. Mr.

Justice Pickup held that it was an error of law to find that this did not qualify as "at frequent intervals" within themeaning of the Act. The decision does not reference the time interval between stops nor the relationship between the number of stops andthe time of the traffic stop. I find the decision to be of limited use to me.

APPLICATION OF THE LAW TO THE FACTS: [39] The law in Canada is settled that Court must consider the grammatical and ordinary meaning of the provisions in question, thelegislative history and the intention of Parliament or the Legislature, the scheme of the Act, and the legislative context. See for example,R. v.

Ulybel Enterprises Ltd., 2001 SCC 56 , [2001] 2 S.C.R. 867 at paras. 28-52. [40] The Motor Vehicle Act is public safety legislation whose purpose is to ensure that all persons using the highways of thisProvince are conducting themselves as drivers or passengers of motor vehicles in a manner that maximizes public safety and reduces to

the greatest extent possible the personal and economic associated with unsafe conduct on the roads. [ 41 ] Within this context, the seat belt provisions of the Act are specifically intended to reduce the number of fatalities and minimize the injuries suffered by drivers and passengers involved in collisions. I do not accept that the Legislature intended a "blanket exemption" from the provisions of s. 220(4) for employees such as Mr.

Stein who, in the context of their employment drive a commercial vehicle where they are required to alight and re-enter the vehicle at frequent intervals as they carry out their duties. To paraphrase Justice Noel in R. v Mathews, supra , as adopted by Justice Gorman in R. v.

Locke , supra, the seat belt requirement contained in section 220(4) of the Motor Vehicle Act a pplies to drivers, unless they establish that at the specific time they were not wearing a seat belt, they were: (1) engaged in work which required them to alight from and re-enter their vehicle at frequent intervals; and (2) that while engaged in this work, they did not drive or travel in their vehicle at a speed exceeding 40 kilometres an hour. and that was not the case, here. [ 42 ] As I have noted earlier, Mr.

Stein testified that, on the date in question, he was working as an Operations Manager for a painting company and was, in the course of his duties, driving a company van. He testified at considerable length as to the nature of his work, the long hours that he worked and the nature and type of vehicle that he was driving. [ 43 ] Mr. Stein testified only to 15 to 30 minutes of his work day that involved driving on the day in question. At the time of the traffic stop by Sergeant LeBlanc, Mr.

Stein testified that he had left a lunch stop and was en route to a potential work project where he estimated he would be for approximately one half hour before driving to Central Saanich, several kilometres away to another work site. [ 44 ] My difficulty with Mr. Stein's testimony is that he has no specific recollection of how fast he was driving nor the time that he was at any of the locations that he identified as "travelling stops" on the date in question.

I do not accept his estimate that he would have carried out all of the tasks which he says he undertook, including his lunch stop and driving an employee to his home, travelled between each of the identified 6 locations prior to being stopped by Sergeant Le Blanc and then carried on to his next destination on Oakland Avenue in no more than15-30 minutes, all while travelling at a speed of less than 40 km/h. [ 45 ] I find the explanation that Mr. Stein offered for failing to assert an entitlement to an exemption from the seat belt requirement as incredulous.

His explanation of fearing police brutality if he advised the officer at the traffic stop that he believed he was entitled to be exempt from the seat belt legislation because of YouTube videos he had seen did not have the ring of truth to it. [ 46 ] As I noted above Mr. Stein did not testify as to any direct knowledge of the speed he was travelling between the stops that he identified, rather he testified as to what he surmises must have been the case. [ 47 ] Even if I accepted all of Mr.

Stein's evidence, I find that the 4 work-related stops that he was required to make on the day in question prior to the traffic stop (i.e. at the work sites on Fernwood, Avebury, Myrtle and the paint store) do not constitute a requirement that he " alight from and re-enter a motor vehicle at frequent intervals", while engaged in work and while driving or travelling at no more than 40 k/ph. I find the lunch stop and dropping an employee at his home (with no evidence of Mr. Stein leaving his vehicle are not evidence of further alighting and re-entering his vehicle as required by his work).

I find more realistic the estimate of Mr. Stein that his very next "stop" after the traffic stop would have seen him alighting at one location and remaining there for approximately 30 minutes before re-entering his vehicle to travel a greater distance to Central Saanich before alighting his vehicle again. [ 48 ] In

summary, I do not accept that making 4 work required stops, in short succession and in the course of a very long work day, followed by a break and then a traffic stop constitutes the type of activity by a person that was meant to attract an exemption under s. 220(5) of the Motor Vehicle Act . [ 49 ] At the critical time, i.e. at the time of the traffic stop, I find that it would not have inconvenienced Mr.

Stein, nor been impracticable for him to wear a seatbelt after leaving his lunch stop and while travelling to the Oakland Avenue address so as to bring him within the class of those persons that the Legislature intended to exempt from the requirement to wear a seat belt as provided under s. 220(4) of the Act. [ 50 ] There being no issue that Mr. Stein was not wearing a seat belt at the time of the traffic stop and having found that Mr.

Stein is not entitled to be exempt from the legislative requirement by operation of s. 220(5) of the Motor Vehicle Act , I find him guilty of the offence of failing to wear a complete seat belt assembly while driving or operating a motor vehicle contrary to section 220(4) of the Motor Vehicle Act . ______________________ Brenda L. Edwards Judicial Justice