R v. Amy Date:, 2016 BCPC 252

Citation: R v. Amy Date: 20160810 2016 BCPC 0252 File No: AH67811432-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. LAURENCE NELSON AMY REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for the Crown: Cpl. M. Elston Appearing in person: L. N. Amy Place of Hearing: Nanaimo , B.C. Date of Hearing: June 13, 2016 Date of Judgment: August 10, 2016

Introduction [ 1 ] This case is unusual in this respect. It raises the issue of whether a common law right, which is also a Charter right, informs the

interpretation of what is in its plain words an offence under the Motor Vehicle Act . [ 2 ] The issue arises in a labour dispute between the Town of Qualicum Beach and its unionized employees. [ 3 ] The Disputant and another were charged with contravening

section 180 of the Motor Vehicle Act on August 18, 2015 in Qualicum Beach. [ 4 ]

Section 180 provides: Crossing at other than crosswalk When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle.

The Facts [ 5 ] The facts are straight forward and not in dispute. [ 6 ] The Town of Qualicum Beach had approximately two weeks before the incident that resulted in this ticket locked out its employees belonging to the Canadian Union of Public Employees (CUPE) who were in dispute over a new contract. [ 7 ] The few non-union employees of the Town were performing some of the tasks otherwise performed by the union employees. [ 8 ] One of the tasks of these employees was the collection of garbage from the residents and commercial establishments in the town. [ 9 ] On this day, a garbage truck owned by the Town was driven by a manager, John Marsh. [ 10 ] He had collected garbage, and the truck being full he drove to the Regional District Transfer Station on Church Road in the neighbouring municipality of Parksville to unload before returning to make further collections. [ 11 ] He had been given prior warning by radio that pickets might be at the Station. [ 12 ] A short distance from the Station Mr.

Marsh turned on a GoPro camera attached to the dashboard of the garbage truck. The camera had been installed a few days earlier as a result of other alleged action by the union. [ 13 ] Church Road is a two lane paved roadway running between Highway 4A and Highway 19A. It is marked with a painted centre line. [ 14 ] At the entrance to the Transfer Station, there is a left turn lane provided for traffic approaching from the direction that Mr. Marsh was approaching. [ 15 ] When Mr.

Marsh entered the left turn lane, he noted pickets gathered at the side of the entrance and when the picketers saw the garbage truck, they started to walk from one side to the other of the entrance. [ 16 ] The Transfer Station appears to be surrounded by a high chain-link fence and across the entrance road is a chain-link gate that swings to the side when the Station is open. [ 17 ] This gate is approximately 10 metres in from the shoulder of Church Road. [ 18 ] Mr.

Marsh concluded he had enough room to move from the left turn lane into the entrance without going past the picket line or the gateway, and did so. [ 19 ] The five picketers slowly walked back and forth in front of, and in close proximity to, the front of the garbage truck. [ 20 ] He reported this to officials of the Town who informed the local RCMP. [ 21 ] Mr.

Marsh did not attempt to go through the picket line. [ 22 ] Any other person who was entering the Station during the picket line was allowed by the picketers to proceed through, and there were a number of them that entered during the 16 minutes of the video. [ 23 ] One of the picketers, Mr. Francouer, advised Mr. Marsh he should proceed to another Regional District Transfer Station in Cedar, south of Nanaimo, rather than entering this Station.

[24] Approximately 15 minutes after Mr. Marsh turned into the entranceway to the Station, two police officers, a Staff Sgt and aConstable, attended. The picketers disbursed, Mr. Marsh drove into the Station, unloaded and then departed. [25] Mr. Amy, one of the picketers and the first Vice President of the CUPE local locked out, testified that he understood picketerscould legally picket for 15 minutes and that was the intention of the picketers. He said he later learned that was only the law in Ontarioand not in British Columbia.

He said the picketers disbursed for that reason and did not disburse as a result of the arrival of the police.He said the timing was just coincidental. [26] The next day, the Chief Administrative Officer of the Town called the RCMP and provided them with a copy of the video takenby the GoPro during all of what is described above. [27] The CAO identified two of the picketers: Mr. Amy and Mr. Francouer, both officers of the CUPE local locked out. [28] After watching the video and discussing the matter amongst themselves the Staff Sgt instructed the Constable to issue aViolation Ticket to Mr. Amy and to Mr.

Francouer, each being charged under

section 180 of the Motor Vehicle Act. [29] The ticket issued to Mr. Francouer was withdrawn at the hearing, so this issue is being decided solely on the dispute of Mr.Amy. [30] A Google Map aerial view of the Station and the GoPro video were entered as exhibits in the trial. [31] One could only describe the picketing as respectful and peaceful. Analysis [32] In argument, the Crown argued that the picketers were pedestrians, the entranceway was a highway and there was no crosswalkat that location and so all the essential elements of

section 180 have been met. [33] Mr. Amy argued he believed he was on private property, there was no injunction in place, they were not trespassing and he wasunaware of the provisions of

section 180. [34] I see the issue differently than that argued by Mr. Amy. [35] Despite a pedestrian being defined as a “person afoot”, a highway being defined to include a “road designed or intended for orused by the general public for the passage of vehicles” and an absence of a crosswalk at that location, for the reasons that follow Iconclude that

section 180 does not apply in the context of a picket line during a labour dispute, at least in these circumstances.. [36] Intuitively,

section 180 could not have been intended to apply to what would appear to be a legal (or not illegal) picket line in alabour dispute. [37] In addition, picketing is a right of expression under the common law and protected under

section 2(

b) of the Charter. [38] That being so, that right informs the meaning and breadth of a general regulatory offence such as that provided in

section 180. [39] I take as my guidance on this conclusion Pepsi-Cola Canada Beverages (West) Ltd. v.

Retail, Wholesale and Department StoreUnion, Local 558 and others 2002 SCC 8 , [2002], 1 SCR 156 (cited in CanLii as 2002 SCC 8). [40] The issue in Pepsi-Cola was the legality of secondary picketing but in the course of giving its judgment, the Supreme Court ofCanada clarified and settled the law in this area. [41] Having concluded that picketing is an expressive right under the common law and the Charter, the Court said at para 80: We can find no persuasive reason to deprive union members of an expressive right at common law that is available to all members of thepublic. [42] At para 69 the Court says: As discussed, labour speech engages the core values of freedom of expression, and is fundamental not only to the identity and self-worthof individual workers and the strength of their collective effort, but also to the functioning of a democratic society.

Restrictions on anyform of expression, and particularly expression of this gravity, should not be lightly countenanced. [43] This right of expression is limited under the common law and the Charter to the following extent. At para 103 the Court rules: Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation ormisrepresentation will be impermissible, regardless of where it occurs.

[ 44 ] Pepsi-Cola has been cited a number of times since, including in our Court of Appeal, for the high importance of the right of expression in defining rights that may otherwise limit rights of expression. [ 45 ] And this right of expression (picketing)is taken to be legal until determined by a competent court or tribunal to be illegal. [ 46 ] In my view, a provision such as

section 180 is not within the meaning of “criminal law” as intended by the Supreme Court.

Section 180 is a regulatory offence and although the principles of the criminal law apply to the rights of a person charged under it and in its prosecution, it is not criminal law within the meaning of this exclusion. It is not criminal law within the meaning of section 91(27) of the Constitution Act, 1867 , a matter reserved exclusively to the Parliament of Canada. [ 47 ] Moreover, as mentioned above, the gravity of this right of expression informs the

interpretation of a general provision such as

section 180, a provision intended for a quite different purpose, that purpose being a statement of the rights between a pedestrian and a vehicle in more ordinary traffic circumstances. [ 48 ] The facts of this case raise a labour relations issue, and frankly should be decided in a labour relations forum or context, and do not raise a motor vehicle issue.

This is so particularly when the highway is a roadway into a single entity enterprise that happens by extended definition to be deemed a highway. [ 49 ] And a picketer in a labour relations dispute is not a pedestrian in a common understanding sense. [ 50 ] In my view, the Motor Vehicle Act , in this case, is an inappropriate tool to aid one party in advancing its position in a labour dispute. Decision [ 51 ] For these reasons I find Mr. Amy not guilty of contravening

section 180 of the Motor Vehicle Act . _______________________________ Judicial Justice H. W. Gordon