R. v. Birring Date:, 2011 BCPC 93

Citation: R. v. Birring Date: 20110421 2011 BCPC 0093 File No: AH51162966 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Kuldeep Raj Singh BIRRING REASONS FOR JUDGMENT OF JUDICIAL JUSTICE OF THE PEACE H W GORDON Counsel for the Crown: Cst. Fluit Appearing on their own behalf: Kuldeep Birring Place of Hearing: Victoria , B.C. Date of Hearing: March 15, 2011 Date of Judgment: April 21, 2011 Introduction [ 1 ] The disputant, Kuldeep Raj Singh BIRRING, was ticketed in Victoria with two charges under the Motor Vehicle Act , RSBC 1996 c. 319 . The first charge alleges that on November 7, 2009 he “fail(ed) to stop at accident with damage to property”, with the

section of the offence cited as section 68(3) of that Act, and the second charge alleges he made an unsafe U-turn contrary to

section 168(

a) of the Act. He was ticketed as registered owner of the vehicle involved. Mr. Birring pleaded not guilty to both charges and I heard the matter on March 15, 2011, at the end of which I reserved judgment. The issue raised in these Reasons for Judgment relates only to the first charge and is whether the Act makes it an offence to not remain at the scene of an accident if the accident only involves one vehicle and the accident did not cause damage to other property. The facts did not support the U-turn charge. The Legislation

[ 2 ] Sections 68(1) and (3) of the Motor Vehicle Act , under the heading “Duty of a driver at accident” read:

(1) The driver or operator or any other person in charge of a vehicle that is, directly or indirectly, involved in an accident on a highway must do all of the following: (

a) remain at or immediately return to the scene of the accident; (

b) render all reasonable assistance; (

c) produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request, to a witness (

i) his or her name and address, (ii) the name and address of the registered owner of the vehicle, (iii) the licence number of the vehicle, and (iv) particulars of the motor vehicle liability insurance card or financial responsibility card for that vehicle, or such of that information as is requested.

(3) The driver or operator or any other person in charge of a vehicle involved in an accident resulting in damage to property on or adjacent to a highway, other than a vehicle under subsection (2), must take reasonable steps to locate and notify in writing the owner or person in charge of the property of the fact of the accident and of the following: (

a) the name and address of the driver, operator or other person in charge of the vehicle; (

b) the name and address of the registered owner; (

c) the licence number of the vehicle. The Facts [ 3 ] Mr. Birring was driving his vehicle with a friend as passenger headed for a night out in downtown Victoria. On the way, they stopped at a McDonald’s close to where Burnside and Douglas Streets converge in Victoria. This was approximately 11:30 at night. Although it was not raining, the roads were wet. [ 4 ] Mr. Birring had recently licensed his 2006 Infiniti G35 that he had purchased and brought into Canada from the United States a few months previously.

It apparently took him 2 or 3 months to bring the vehicle into compliance with Canadian standards before it was licensed two months prior to this incident, in September 2010. [ 5 ] On exiting the parking lot of McDonald’s onto Burnside, Mr. Birring’s vehicle fishtailed and he lost control of his vehicle. The result was that some 30 metres down the road from where he entered, the vehicle swung around and collided with a wooden utility pole adjacent to the curb, headed in the opposite direction from which he started. There was extensive damage to the vehicle. Mr.

Birring testified that there was $12,000 in damage to the vehicle. The investigating officer testified there was no damage to the utility pole. Neither Mr. Birring nor his friend were injured. [ 6 ] The reaction of Mr. Birring and his friend to the accident was to flee. Having fled, Mr. Birring called his cousin, who picked them up nearby and took them to a bar in downtown Victoria, where Mr. Birring said he began to drink significant amounts of alcohol. [ 7 ] In the meantime, witnesses to this accident called 911 reporting the accident and that the driver and his passenger had fled.

Cst Fluit and her partner, Cst Fountain, soon arrived at the scene. She noted the body damage, steam rising from the engine and that the ignition had not been tampered with, and she found no one who claimed to be associated with the vehicle. The vehicle was sticking out from the pole at an angle to the roadway, mostly in the portion used for parking on Burnside. Burnside is a two lane roadway with one lane in each direction and enough roadway for parallel parking on each side. It is a major roadway, joining Douglas Street with that part of Saanich near the Tillicum Mall and access to Highway 1.

In fact it might be described as the hypotenuse of a right triangle formed by Burnside, Douglas and Highway 1. As the vehicle posed a risk to vehicles travelling northbound on Burnside, Cst Fluit had the vehicle towed. [ 8 ] With information from the licence plate of the vehicle, Cst Fluit determined that the registered owner was Mr. Birring, and from that she was able to find a telephone number for his residence. She called and spoke to Mr. Birring’s mother, who advised that Mr. Birring was not at home. Not too long after, Cst Fluit received a call from Mr.

Birring and they arranged to meet near the Sticky Wicket bar in downtown Victoria. She described Mr. Birring as somewhat intoxicated and seemed upset when told of the accident and damage to the vehicle. Mr. Birring did not at that time admit to knowing of the accident or of being the driver. [ 9 ] Cst Fluit thereupon served Mr Birring with a ticket as registered owner of the vehicle for failing to stop at an accident and for making an unsafe U-turn.

The reason for the latter charge was that it appeared from the angle of the vehicle and the evidence of the witnesses to the accident that the vehicle had attempted to make a U-turn. [ 10 ] Some time later, Mr. Birring admitted to an officer that he was the driver of the vehicle at the time of the accident. He also testified at trial that he was the driver. The Charge of Making an Illegal U-turn

[ 11 ] From the evidence at trial I ruled that the charge for making a U-turn could not be sustained. The Issue and Analysis of Failing to Remain at the Scene [ 12 ] Mr. Birring cited in his defence on the first charge that, on the facts,

section 68 did not apply to him. In support, he provided the court with a one page extract from the internet of a blog of a BC lawyer on the duties of motorists involved in single vehicle accidents. This form of legal support illustrates the difficulty in traffic court of deciding issues without the benefit of counsel on each side. This internet extract cited ICBC v. Pariah Productions Inc. , a decision of the BC Supreme Court. Pariah is an appeal of a decision of this Court in a small claims matter. The extract reproduced in the printout from the blog suggested it supported Mr. Birring’s position, but as it was not a complete citation of the case, and it appeared to give a different

interpretation of section 68(1) than I would have, I reserved judgment to more thoroughly canvass the law. [ 13 ] ICBC v. Pariah Productions Inc. , 2010 BCSC 164 , is a decision of Justice Silverman dated February 5, 2010. The Court upholds the decision of Judge Meyers of this Court. [ 14 ] The decision on the

interpretation of section 68(1) was in the context of a small claims trial involving a claim by an insured in a situation in which the vehicle was in a single vehicle accident resulting in damage to property other than another vehicle. The issue before the Court was whether Pariah was covered under its insurance policy as a result of the alleged breach under

section 68 (of failing to remain at the scene) by the driver of the covered vehicle. The decision of Judge Meyers was not available to me, so I rely solely on the excerpts of that judgment in the BC Supreme Court decision. [ 15 ] Justice Silverman said ICBC put one of the issues this way: The primary legal issues on appeal are: (

a) the applicability of s. 68(1) of the Act to single vehicle accidents; … [ 16 ] Justice Silverman then went on to say: [15] The trial judge reviewed sections 68(1) and 68(3) of the Act and concluded that they involve different scenarios: 1. Section 68(1), in his view, “involves the situation where there is a car accident involving another vehicle and there is injury or loss to another person, be it the other driver or someone else.” [Emphasis added.] … [18] The trial judge analyzed the wording of s. 68(1) in its context together with sections 68(2) and 68(3).

He then concluded that s. 68(1) is not applicable to a situation involving a single vehicle accident. [19] The analysis appears in his Reasons for Judgment at paras. 16-19: [16] It is to be questioned whether or not s. 68(1) and then 68(3) are sections that deal with the same type of accident or whether they are distinctly two different types of accidents. Section 68(3) provides the duty of a driver in an accident is as follows: ... [17] It is my view that 68(1) and 68(3) of the Motor Vehicle Act involve two different situations: ...

Sixty-eight (1) involves the situation where there is a car accident involving another vehicle and there is injury or loss to another person, be it the other driver or someone else. Section 68(3) however, involves a situation where there is only a single-vehicle accident, no persons are injured but there is damage to property only.

So, the two sections are quite distinct from one another and the obligations on the driver involved in a 68(1) situation or a 68(3) situation are quite different. [18] For 68(1) of the Motor Vehicle Act to apply in this case, it is my view that there had to be a situation where not only was there damage to or loss or injury to some other person, but there also had to be another driver involved. The reason I say that is that 68(1)(

c) says that the driver involved in the accident must: produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request [to a peace officer or] to a witness ... the information. In my view, that

section presupposes that he, the driver, has obeyed his obligation to remain at or immediately return to the scene of the accident. So 68(1), in my view, involves two cars and a situation additionally of someone sustaining loss or injury, be it that other driver or some third party, whereas s. 68(3) in my view, only applies to a situation where one driver is involved and he/she has caused damages to property on or adjacent to the highway, other than another vehicle.

He then must take reasonable steps to locate and notify in writing the owner or person in charge of the property and send them the facts of the accident and provide other details. [19] In s. 68(1), there is a mandatory requirement that the driver involved in the accident remain at the scene or immediately return to the scene and he must produce in writing to the other driver and anyone sustaining loss, various pieces of information, whereas under s. 68(3), there is no provision that he must remain or that he must immediately return to the accident.

Rather, it says that he must take reasonable steps to locate and notify in writing the owner or person in charge, of the fact that an accident has taken place. The fact that he

is required under 68(3) to take reasonable steps to locate and notify in writing the owner or person in charge of the property, in my mind, means that it is not something that he is required necessarily to do "immediately", whereas under 68(1), when he has an accident with another car and the other driver or the other driver's property or even somebody else's property, is damaged or lost, in that two-car accident, he has to stay there and "immediately" give the information. [ 17 ] If this had been an issue of first instance, I would have concluded that section 68(1) can apply to a single vehicle accident. But it is not, and I am bound by the

interpretation set out above. [ 18 ] The

interpretation of a statutory provision is generally determined in a factual context. And the decision maker has the benefit of the facts, and argument if made, to assess or test the meaning of the words of the statute to the facts. The risk is that unless a particular

interpretation is restricted to its application in that factual context, it may be over broad. The

interpretation in Pariah is not qualified, and on its facts must apply to this situation. [ 19 ] I will set out why I would have concluded that section 68(1) could apply to a single vehicle accident. Firstly, it seems to me there might be very good reasons why, as a matter of policy or principle, a driver involved in an accident should remain at the scene. One surely must be that it allows the enforcement authorities to assess the driver for fitness to drive at the time of the accident. Another is that it puts the driver in a situation where he or she can, if able, deal with the vehicle in the accident. I surmise these are two of the mischiefs that the

section is intended to address. [ 20 ] The list of obligations set out in paragraphs (a), (

b) and (

c) are, in my view, obligations as applicable. But all the obligations are effective as applicable in the circumstance set out in the prefix or header to the list: “the driver or operator … of a vehicle that is, directly or indirectly, involved in an accident on a highway must do all of the following”. Unlike subsections 68(2) and (3), this subsection is not qualified by what kind of accident it is [collision with an unattended vehicle (68(2))] or [accident resulting in damage to property other than an unattended vehicle (68(3))]. Under section 68(1), if for example the accident does not require the giving of assistance, then paragraph (

b) does not apply in those circumstances, but paragraphs (

a) and (

c) still may. [ 21 ] It strikes me that there is meaning to be drawn from the use of the word “accident” in subsection (1) in distinction to “collides” in subsection (2) and “accident resulting in damage to property” in subsection (3). Accident is a very broad word.

Collision is a particular kind of accident and accident resulting in damage to certain property is another qualification of the type of accident. [ 22 ] Judge Meyers says: “Sixty-eight (1) involves the situation where there is a car accident involving another vehicle and there is injury or loss to another person, be it the other driver or someone else.” In fairness to him, he was looking at it from the context of the facts of the case before him. But surely the

section also applies if the car accident involves only a pedestrian and not another vehicle, or injury to a passenger in a single car accident.. Since neither subsection (2) nor (3) applies, does that mean there is no obligation under the Motor Vehicle Act for the driver or operator to remain at the scene or render all reasonable assistance? And might subsection (1) not apply if there is another vehicle AND damage to property involved? [ 23 ] From this analysis, I would have interpreted section 68(1) as applying to all accidents involving a driver, operator or other person in charge of a vehicle.

If there is an accident of the type described in subsection (2), or if there is an accident of the type described in subsection (3), then subsection (1) also applies in addition to subsection (2) or (3). I would have concluded that neither subsection (2) nor subsection (3) precludes the application of subsection (1). Decision [ 24 ] As I am bound by the decision in Pariah , I conclude that as section 68(1) of the Motor Vehicle Act does not apply based on the

interpretation given in Pariah , I must find on the facts that Mr. Birring is not guilty of an offence under any provision of

section 68 and I acquit him of charge 1. As there were insufficient facts to support a charge of making an illegal U-turn, I acquit Mr. Birring of charge 2. [ 25 ] In such a case, there is in my view an unfortunate lacuna in the law. _________________ H.W. Gordon Judicial Justice