R. v. Molloy Date:, 2013 BCPC 396

Citation: R. v. Molloy Date: 20131120 2013 BCPC 0396 File No: AH57353882-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Sean Patrick MOLLOY REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON

Appearing for Crown : Sgt. G Vermette Appearing for the Accused Jeremy W. D. Mills Place of Hearing: Victoria , B.C. Date of Hearing: March 12, 2013 Date of Judgment: November 20, 2013 The Charge [ 1 ] Sean Patrick Molloy is charged with driving without due care and attention in Victoria on August 26, 2012, contrary to section 144(1)(

a) of the Motor Vehicle Act . The Charging

Section [ 2 ] Section 144(1)(

a) provides: Careless driving prohibited 144

(1) A person must not drive a motor vehicle on a highway (

a) without due care and attention, Evidence [ 3 ] There are two different versions of the facts, one version of the issuing officer and another of Mr. Molloy. [ 4 ] The issuing officer is Cst. Sean Juby of the Victoria Police Department. On Sunday, August 26, 2012 at approximately 5:30 pm he was driving south on Quadra Street in Victoria when he testified he noticed what he described as a crotch rocket motorcycle round the corner in front of him from Fort Street onto Quadra, at a high rate of speed. The motorcycle was being driven by a male in full leathers.

What caught his attention was the speed, the amount of lean of the cycle on the turn and the noise made by the cycle. [ 5 ] The officer made a U-turn in the block between View and Fort Streets and began a pursuit of the motorcycle. As he completed his turn, he noted the northbound motor cycle was turning left onto Yates Street, about a block and a half from the officer, and the motorcycle was leaning well into the turn. The officer drove to the intersection, made the same left turn and noted the motorcycle weaving in a fluid motion 5 or 6 times amongst the vehicles in that block at a fast rate of travel.

He does not recall the number of vehicles in the block but estimates there were 4 or 5 vehicles. [ 6 ] Yates Street is a one way street westbound with 3 lanes of travel plus parking on both sides. The blocks in that area of downtown Victoria are oblong, with the length of the east / west streets being about 3 times that of the north / south streets. Each intersection in that area is controlled by traffic lights. [ 7 ] Cst.

Juby testified that when he turned the corner onto Yates Street, he “paced” the motorcycle at 85 km/h, it was still “pulling away” from him but he still got to within 2 to 3 vehicles lengths of the motorcycle as it turned right from Yates Street onto Blanshard Street, heading northbound.

The officer said he was able to catch up to the motorcycle on Yates despite its speed because the other vehicles on Yates Street moved over in response to his emergency lights. [ 8 ] The officer then testified that on Blanshard, he could see the motorcycle again weaving in and out in a fluid snaking motion amongst the vehicles driving northbound. Three blocks north of Yates Street, at Fisgard Street, the traffic light turned red for the northbound traffic and the motorcycle came to a stop. Again, as a result of the officer’s emergency lights and the vehicles making way for him, he was able to catch up.

The officer used the loud hailer on his police vehicle to order the driver of the motorcycle to remain stopped. The motorcycle pulled right, into the parking lot of Serious Coffee at that corner. [ 9 ] Cst. Juby issued a violation ticket to Mr. Molloy for driving without due care and attention, under section 144(1)(

a) of the Act. He said this ticket was issued because of the combination of fast driving and the weaving in and out of traffic on Yates and Blanshard Streets. [ 10 ] Mr. Molloy gave a different version of events. He testified that he was driving from his girlfriend’s place on Quadra, south of Fort, to the ferry terminal at Swartz Bay. He had green lights all the way along Quadra and was driving with the flow of traffic. He was not driving fast on Blanshard, making two lane changes. He said there was no traffic on Yates.

He admitted on cross examination to driving at about 75 km/h on Yates. [ 11 ] He stopped at a red light on Yates at Blanshard, and then turned right driving northbound. The traffic on Blanshard was heavier than it was on Yates. He had a green light at Johnston and at Pandora Streets and stopped for a red light at Fisgard Street. He heard the officer on his loud hailer, tapped his helmet to acknowledge he heard him and pointed towards the Serious Coffee parking lot and turned in. [ 12 ] Mr. Molloy said that there was another officer with Cst. Juby. This evidence was not challenged.

The other officer did not testify.

Analysis [13] I am left with two different versions of events. Cst. Juby said the motorcycle turned across in front of him from Fort to Quadra. He said it was weaving in and out of traffic on Yates and Blanshard Streets and was being driven at much faster than 85 km/h on Yates. Mr. Molloy said he drove straight through along Quadra from his girlfriend’s home, who lived on Quadra south of Fort, did not weave inand out of traffic as alleged and did not drive at the speeds alleged. [14] In considering the evidence of Cst.

Juby, there was obviously something that caused him to pursue the motorcycle from Fortand Quadra Streets and I accept that that something was in essence what he described.

Yet, having heard his evidence of the route takenand the speeds he drove in pursuit over the route he described, and knowing those streets well myself, I find it difficult to accept that hecould get from where he made the U-turn on Quadra Street between Fort and View, at the time the motorcycle was rounding the corneronto Yates Street a block and half away, to that corner himself in time to see: a. -the motorcycle weaving in and out of traffic in just one block of Yates b. -at the speeds he says the motorcycle was doing, c. -and then essentially catch up to it at the end of the block, d. -when he was doing 85 km/h e. -and the motorcycle was both pulling away from him f. -and at the same time, he was catching up to within 2 or 3 vehicle lengths of it at the end of the block. [15] There is also a significant difference on where Cst.

Juby says he first sighted the motorcycle. It makes more logical sense thatMr. Molloy was driving across Fort Street on Quadra rather than turning from Fort onto Quadra, as Cst. Juby testified, given where Mr.Molloy says he departed from. [16] I conclude from Cst. Juby’s evidence that he was left with a strong perception of the driving he described but that thatperception could not have been based on the entirety of what he recalls he observed for the reasons recited in the two paragraphs above.

I accept that there was a good deal of what he says took place but I am left in doubt that what took place was exactly as he described. [17] Further, the Court was deprived of any confirming or corroborative evidence of the officer who apparently was in the policevehicle with Cst. Juby. This was evidence the Crown could have called. [18] I turn now to Mr. Molloy’s evidence. With the exception of his admission of driving at about 75 km/h on Yates Street in a 50km/h zone, his evidence of his driving leaves the impression it was very benign or unnoteworthy.

In all the circumstances, I find thatdifficult to accept as well. [19] Given the uncertainty of and difference in some of the evidence of both Cst. Juby and Mr. Molloy, I have reasonable doubtsabout the evidence of both. [20] Keeping in mind the principles set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, I am left in reasonable doubtby Mr. Molloy’s testimony and in any event, taking into consideration all of the evidence, I am left in reasonable doubt that Mr. Molloywas driving without due care and attention. [21] I therefore find Mr.

Molloy not guilty and dismiss the charge. _______________________________________ H.W. Gordon Judicial Justice