R. v. Alexander Date:, 2012 BCPC 458

Citation: R. v. Alexander Date: 20121231 2012 BCPC 0458 File No: AH64207973 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Regina v . Albert Jeffrey ALEXANDER REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON

Appearing for Crown : Cst. Mathew Jones Counsel for the Disputant: Robert E M Jones Place of Hearing: Victoria , B.C. Dates of Hearing: June 4, September 24, 2012 Date of Judgment: December 31, 2012 [ 1 ] This is a case of alleged driving of a motorcycle on a highway without due care and attention as reported by a civilian and the issues are the identity of the driver and whether the actions of the driver constitute driving without due care and attention. [ 2 ] On November 27, 2011, the Disputant Albert Jeffrey Alexander, was charged with driving his motorcycle on highway 17 [otherwise known as the Pat Bay Highway] in Saanich BC without due care and attention, contrary to section 144(1)(

a) of the Motor Vehicle Act . [ 3 ] Two Saanich police officers on patrol responded to a 911 complaint phoned in by Ryan Lockhart, who was driving southbound on highway 17, in Saanich. [ 4 ] Mr. Lockhart had entered Highway 17 southbound at the Royal Oak onramp. It was 4 pm on Saturday, November 27, 2011, and he had his two sons with him. The roadway was wet from an earlier rain. He noted a motorcycle behind him catching up at a significant speed. [ 5 ] Highway 17 is a four lane highway connecting Victoria with Sidney and the Swartz Bay Ferry Terminal.

There are two lanes in each direction, divided by a wide grass median. [ 6 ] Mr. Lockhart was driving southbound in the centre or number 1 lane. Although the highway was not as busy as it would be during the week, he says he was driving in a pack of vehicles. There was one vehicle in front of him, some behind and at least two to his right in the number 2 lane. The vehicles in the number 1 lane were driving at about the speed limit, 80 km/h, and slowly overtaking those in the right lane. The pack of vehicles was blocking the progress of the motorcycle.

The motorcycle began a pattern of weaving from lane to lane between the vehicles in the number 1 and number 2 lanes. As it came behind Mr. Lockhart’s vehicle it could not get past the vehicle beside him in the number 2 lane. [ 7 ] This occurred at the off and on lanes at Vanalman Ave. Vanalman is perpendicular to the highway, with access only to the southbound lanes of the highway. There is a lane that leads off the highway to Vanalman and a lane that leads onto the highway from Vanalman. At the confluence of these two lanes is a large triangular curbed island, in which are embedded large stones.

There is a wide paved shoulder along the highway edge of this island, separated from the highway by a solid white line. [ 8 ] It is approximately at this point that the motorcycle wove from the number 1 lane between two vehicles in the number 2 lane continuing onto this paved shoulder, drove on this shoulder for a distance to pass the vehicles in the number 2 lane and then back into the line of traffic, very close to the front of the lead vehicle. As Mr. Lockhart was observing this, he leaned on his horn. The driver of the motorcycle reached behind him with both hands giving a one finger salute with both hands.

He described the speed of the motorcycle during all this time as faster than 80 but only what was needed to move forward to weave among the vehicles. Otherwise, its speed was controlled by the speed of the vehicles in the two lanes of traffic. [ 9 ] Mr. Lockhart then called 911 and continued to follow the motorcycle along highway 17 which morphs into Blanshard Street. All of this time he was on the line to the 911 operator who was simultaneously passing the information to two Saanich police officers on patrol in the area. Mr.

Lockhart says that after the motorcyclist passed the pack of vehicles, his observation was that the motorcyclist appeared to drive in an appropriate fashion and at an appropriate speed. [ 10 ] Mr. Lockhart followed the motorcycle along Blanshard to near Finlayson. He saw the cycle turn right onto Topaz Street. Of significance to this case, Mr. Lockhart provided the 911 operator with the plate number of the motorcycle and a description of the clothing of the driver.

He described the driver as wearing a camouflage coloured helmet and a black jacket with the word Rocket in white lettering across the bottom of the back of the jacket. [ 11 ] In the meantime, Cst Jones, with his partner, Cst Maher, were searching for the cycle while being kept updated by the 911 operator. They spotted a cycle matching the driver and cycle driving northbound opposite Mayfair Mall on Blanshard while they were driving southbound. This is the same area where Mr. Lockhart lost sight of the motorcycle. The officers noted it to make a right from Blanshard to Tolmie Street.

They reversed direction, followed up Tolmie, spotted the cycle a few blocks away on Quadra at Cook. There they stopped the motorcycle. It had the same plate number as was given to them by dispatch and the driver’s helmet and jacket matched the description also given them by the operator. [ 12 ] The driver was cooperative, producing his picture driver’s licence. Given the matching plate number and clothing description, and the proximity of time to the initial call, they concluded this was the cyclist who had been reported by Mr. Lockhart. From the description of the driving, Cst.

Jones issued him a violation ticket for driving without due care and attention, contrary to section 144(1) (

a) of the Motor Vehicle Act . [ 13 ] Mr. Alexander testified that he was a recent arrival from Toronto. He had lent his motor cycle to his cousin that day, a couple of hours previous to being stopped. He says in the hour or two before being stopped, he had driven from his own residence to a friend’s

residence on Mackenzie Avenue, near Quadra Street, and then to a Tim Horton’s on Douglas near the Mayfair Mall. He was at Tim Horton’s at least 20 minutes before heading home, which was what he was doing when stopped by Cst Jones. He does not recall being that day on the portion of highway 17 where these events are alleged to have taken place. He also denies driving in the manner described by Mr.

Lockhart, there or anywhere else, and he does not recall anyone honking at him or giving anyone the finger while he was driving. [ 14 ] Based on the whole of the evidence including the proximity of time, the geography of the streets on which the motorcycle was seen by Mr. Lockhart and the two officers, the description of the helmet and apparel of the driver and the matching licence plate numbers, I am satisfied beyond a reasonable doubt that the person seen driving the motorcycle where described by Mr. Lockhart is the same person who was stopped by Cst Jones: the disputant, Albert Alexander.

I draw this conclusion from observing both Mr. Lockhart and Mr. Alexander give evidence, comparing their recollection of events and, to a degree, my own experience in driving, including all those portions of the Victoria area in which these events are alleged to have taken place. Mr. Alexander’s testimony fails to raise a reasonable doubt to that of Mr. Lockhart. [ 15 ] I am also satisfied, beyond a reasonable doubt, that the manner in which the motorcycle was driven on Highway 17 was as described by Mr. Lockhart. I accept that Mr.

Lockhart had a genuine concern for the safety of those others on the highway at the time by the manner of driving he described. He did not know who the driver was, he was an experienced motorcycle driver himself, he did not exaggerate his description of what took place, admitting that none of the vehicles had to take evasive manoeuvers as a result of the actions of the motorcycle and that once the motorcycle had passed the cluster of vehicles, the manner of driving was what might reasonable be expected.

And, he said, this was only the second time in 5 years that he had used 911 to report the actions of a driver. [ 16 ] Mr. Alexander’s evidence was somewhat vague as to both location and timing of events and given that I accept he was driving the motorcycle on highway 17 at the location and time described by Mr. Lockhart, I do not believe Mr. Alexander’s denials. [ 17 ] Mr. Alexander argues that even if he was the driver, and the manner of his driving was as described by Mr.

Lockhart, that driving does not meet the threshold of driving without due care and attention, for which he is charged, and is at most, driving without reasonable consideration for others using the highway. I conclude the manner of driving was at least the latter. [ 18 ] I was not referred to any authority on what constitutes either driving without due care and attention or driving without reasonable consideration for others using the highway. Further, the question arises of when the latter might become the former. [ 19 ] My own research would suggest this.

The law expects a certain standard of care of drivers on the highway. A departure from that standard may not attract a criminal sanction. A marked departure would attract such a sanction.

A marked departure might include careless driving, putting other drivers at risk or driving that was objectively dangerous. [ 20 ] Applying these principles, I conclude that weaving a motorcycle in and out of a pack of vehicles travelling at between 80 and 90 km/h in two lanes of highway traffic on pavement that is damp or wet, including driving as well on the paved shoulder, is a marked departure from any standard of care, was objectively dangerous and is sufficiently dangerous to constitute driving without due care and attention. [ 21 ] It may be that a motorcycle is more manoeuverable than a car, and can more easily weave in and out of traffic.

But it is less easily seen by other drivers, and moving between lanes at distances from the other vehicles that are unsafe, may cause other drivers to take actions that will lead to an accident. No less a standard is expected of the driver of a motorcycle than is expected of the driver of a motor car in how either of these vehicles is conducted on the highway. Further, the greater the speed of vehicles and a less than perfect road surface increase the expected standard of care.

Of particular egregious conduct evidencing a marked departure from the standard of care in driving a motorcycle at those speeds on a busy highway, is the driver taking both hands off the handle bars and putting them behind his back to give the finger to the driver honking his horn. Cst Jones submitted that this would amount to stunting under

Part 9 of the Motor Vehicle Act , but this action does not fit within any of the six descriptions of stunting listed in

section 250 of the Act. [ 22 ] For all of these reasons, I am satisfied beyond a reasonable doubt that Mr. Alexander was driving his motorcycle on highway 17 near Vanalman Ave in Saanich on November 27, 2011, without due care and attention, contrary to section 144(1)(

a) of the Motor Vehicle Act and I find him guilty of such. [ 23 ] Since writing these Reasons I have had the opportunity to read the decision in R. v. DeBortoli 2012 BCSC 1957 , in which Justice Butler canvasses the law on dangerous driving under the Criminal Code . Although I appreciate that it addresses a different offence with different elements, it does confirm my belief that I have correctly addressed and appreciated the elements required to constitute an offence under section 144(1)(

a) of the Motor Vehicle Act , keeping in mind the difference between the provincial offence and the federal offence. ______________________ H. W. Gordon Judicial Justice