R. v. Nunn Date:, 2013 BCPC 75

Citation: R. v. Nunn Date: 20130404 2013 BCPC 0075 File No: AH67654767-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Regina v. LESLIE MICHAEL NUNN REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. Gordon Appearing for Crown : Cpl. Brian R. Kerr Appearing on his own behalf: L. Michael Nunn Place of Hearing: Sidney , B.C. Date of Hearing: October 19, 2012 Date of Judgment: April 4, 2013

Introduction [ 1 ] Mr. Nunn was charged with failing to yield to a cyclist at an intersection, contrary to section 175(1) of the Motor Vehicle Act . [ 2 ] There are two issues: does section 175(1) apply to the facts in this case and if so, did Mr. Nunn fail to yield in the circumstances required by section 175(1). Statutory Provisions [ 3 ]

Section 175 provides: Entering through highway 175

(1) If a vehicle that is about to enter a through highway has stopped in compliance with

section 186, (

a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and (

b) having yielded, the driver may proceed with caution.

(2) If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway. [ 4 ] Through highway is defined in section 119(1): "through highway" means a highway or part of a highway at the entrances to which stop signs are erected under this Act; [ 5 ] As well, despite the misleading head note,

section 173 is significant: Yield signs 173

(1) Except as provided in

section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.

(2) Except as provided in

section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there is a yield sign, the driver of a vehicle facing the sign must yield the right of way to all other traffic. Facts [ 6 ] This charge arose as a result of a collision between a cycle ridden by Mr. Swinkels and a motor vehicle driven by Mr. Nunn. [ 7 ] The location was at the intersection of East Saanich Road and Saanich Cross Road, in East Saanich. Both streets are paved with gravel shoulders and single lane in each direction. [ 8 ] Both roads are controlled by stop signs.

That is, it is a four way stop. [ 9 ] The time was approximately 6:00 pm on February 7, 2012. It was dark. [ 10 ] Saanich Cross Road bisects East Saanich Road at a significant angle, such that as it meets East Saanich Road in the direction of Mr. Swinkels’ travel, it would be 45° or less. [ 11 ] The area is fairly heavily treed, although the intersection itself is more open.

No one at any of the stops signs would have any obstruction in seeing any vehicle stopped at any of the other stop signs. [ 12 ] Because of the angle of the streets, the intersection is wider than it might otherwise be. [ 13 ] East Saanich Road is essentially level in a north south direction. Saanich Cross Road slopes downhill from Central Saanich Road in a north easterly direction, crosses East Saanich Road on the level and then slopes downward again to soon end where it intersects with Island View Road.

[ 14 ] As a result of the angle of intersection, the stop sign and corresponding stop line for northbound traffic on East Saanich Road is about 3-4 metres north (ie. into the intersection) of where the south side of Saanich Cross Road meets the west side of East Saanich Road. The stop sign on Saanich Cross Road on the west side of East Saanich Road is perhaps 5 metres back from the west side of East Saanich Road. In other words, a person stopped on Saanich Cross Road would be looking slightly to the right of straight ahead to see the East Saanich stop sign and any vehicle that might be stopped at it.. [ 15 ] Mr.

Swinkels and Mr. Nunn gave evidence, as did Cpl Kerr. An independent witness, who may or may not have seen the collision, did not give evidence. [ 16 ] Mr. Swinkels evidence was fairly short. He said he was riding his bicycle home from work. He rode from Keating Cross Road, along Central Saanich Road, down the hill on Saanich Cross Road. He says he stopped at the stop sign at East Saanich Road. He waited for a north bound vehicle to cross and then proceeded across. That is the last thing he remembers.

Prior to proceeding, he says he saw another vehicle farther to the south on East Saanich Road. [ 17 ] He says his bicycle was equipped with a white light on the front with emitters on the side, a rear red flashing light, and reflective strips on the wheels. [ 18 ] Mr. Swinkels had some bruising to the side of his face, minor injury to his legs but no scrapes and his helmet was damaged. The only damage to the bike was to the right side of the rack attached above the rear wheel. [ 19 ] Mr. Nunn’s evidence was that he came to a full stop on East Saanich Road at Saanich Cross Road.

He looked up and down the hill (ie to his left and to his right). As he proceeded from the stop sign, he heard a slap on the passenger side of the car. [ 20 ] He says he did not see anything cross in front of him. He thought he had hit a deer and so pulled to the side after clearing the intersection. It was then he saw Mr. Swinkels and the bike lying on the roadway. At that point a woman approached. She had been driving up the hill on Saanich Cross Road and happened upon the scene after the accident. [ 21 ] Mr.

Nunn said he was driving a vehicle from Superior Collision (his was being repaired) that was supplied by Enterprise Rent- A-Car. He told the manager what occurred and the manager closely inspected the vehicle for damage and found none, except a scratch in front of the passenger door that was there at the time Mr. Nunn first took the vehicle. [ 22 ] To complete the evidence before me, Cpl. Kerr gave evidence. In essence, it was that he arrived after the accident in answer to a 911 call. The fire department and an ambulance were already on scene. [ 23 ] Cpl.

Kerr ascertained the tombstone information such as names of the driver, the bicyclist and the after-accident witness. He also said that Mr. Nunn attended at the police station two days later with the vehicle he was driving. He said he noted a scratch on the right front bumper. He concluded that the impact was on the east side of the intersection and, from the evidence he had, that Mr. Nunn had failed to yield to Mr. Swinkels. He issued Mr. Nunn this ticket. Analysis [ 24 ] The first issue to decide is whether section 175(1) of the Act applies to the facts of this case. I conclude it does not.

Section 175 applies where a highway controlled by a stop sign intersects a highway not so controlled. Whether by common meaning or as defined in the Act, a through highway does not capture a highway at a point that is controlled by a stop sign. So at a four-way stop, neither highway can be a through highway. Four-way stops are addressed in

section 173 of the Act. Decision [ 25 ] So because Mr. Nunn was charged under section 175(1) and not under section 173(1), I find Mr. Nunn not guilty. Further Analysis [ 26 ] However, even if he had been charged under section 173(1), I would have found him not guilty on the facts. [ 27 ] The facts are too inconclusive. The bicycle rider, Mr. Swinkels, says he did not see any vehicle stopped at the stop sign on East Saanich Road when he left his stop sign, but saw a vehicle approaching farther down the road. Given the evidence of time and damage and injury, I would not conclude that Mr.

Nunn disobeyed the stop sign. There was no evidence of a car braking, the collision must have been relatively light as Mr. Swinkels suffered no injury to his right side (the side he would have been hit on), and there was very slight damage to the rear of the bike and no damage, or no real visible damage to the vehicle Mr. Nunn was driving. Mr. Swinkels can not recall anything else about the event. Mr. Nunn does not recall anything passing in front of him. [ 28 ] And as importantly, under section 173(1), of the two vehicles, Mr. Nunn had the right of way as Mr. Nunn’s vehicle was on Mr.

Swinkels’ right. __________________

H.W. Gordon Judicial Justice