R. v. Fitzgerald Date:, 2013 BCPC 71

Citation: R. v. Fitzgerald Date: 20130222 2013 BCPC 0071 File No: AH72234760 Registry: Colwoood IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Regina v. JASON FITZGERALD REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON Appearing for Crown : Cst. Brehmer Counsel for Disputant: Jeremy G. Carr Place of Hearing: Colwood , B.C. Date of Hearing: January 25, 2013 Date of Judgment: February 22, 2013

[ 1 ] The Disputant, Jason Fitzgerald, was charged under

section 151(

a) of the Motor Vehicle Act with, in common parlance, changing lanes unsafely. [ 2 ] I found at trial that he did change lanes unsafely, thereby causing a collision with a vehicle in the lane beside him. [ 3 ] The issue this case raises is, does

section 151(

a) apply only to an intentional change of lanes or does it also apply to an inadvertent or negligent change of lanes. [ 4 ]

Section 151(

a) of the Motor Vehicle Act reads: 151. A driver who is driving a vehicle on a laned roadway (

a) must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle. [ 5 ] At trial, the evidence briefly was that Mr. Fitzgerald was driving northbound on Millstream Rd. in Langford in his Dodge Durango. He was turning right from Millstream onto an onramp to Highway 1 eastbound.

That onramp from northbound Millstream is two lanes, making a wide arc that joins one lane for traffic that has turned left from southbound Millstream and for a distance is then three lanes before narrowing to two lanes as it merges with highway 1. Each of these lanes is separated by a broken white line. [ 6 ] As Mr.

Fitzgerald was completing the arc, his Durango collided with the rear right quarter of a Honda which was in the left of these two lanes, causing the Honda to spin and come to rest in the far left lane of what was by now a three lane onramp. [ 7 ] The first issue at trial was whether the collision occurred in Mr. Fitzgerald’s lane or in the lane to his left occupied by the Honda. At the end of the trial, I found that Mr. Fitzgerald’s Durango had strayed into the lane to his left, colliding with the Honda.

The driver of the Honda was followed by vehicle driven by an independent witness who corroborated the evidence of the driver of the Honda that she remained at all times in her lane of travel, and that it was the Durango that moved into her lane of travel. [ 8 ] Although it is only of peripheral relevance to this charge, the following is necessary background. Cst. LeBlanc of the local Integrated Road Safety Unit happened to be monitoring traffic at the end of the onramp. When he heard the collision, he attended immediately.

He called for the assistance of the local RCMP, and Cst Brehmer soon attended. [ 9 ] When Cst LeBlanc spoke to Mr. Fitzgerald he noted the smell of liquor on Mr. Fitzgerald’s breath and he began an impaired driving investigation. As a result, Mr. Fitzgerald was served with a notice of driving prohibition under

section 215.41 of the Act. [ 10 ] While Cst LeBlanc was dealing with this, he left it to Cst Brehmer to deal with the collision aspect. After speaking with the various witnesses, Cst. Brehmer concluded that it was Mr. Fitzgerald who moved into the lane to his left and collided with the Honda, and therefore she issued this Violation Ticket to Mr. Fitzgerald under

section 151(a). [ 11 ] Although Mr. Fitzgerald maintained that he did not move out of his lane of travel, he did concede that during the turn he had turned his head to the right to speak to his passenger. I concluded that when he did so, he inadvertently, due to in attention, strayed into the lane to his left and thereby collided with the Honda. I also found that there was insufficient evidence to prove impairment of Mr. Fitzgerald was a factor in the collision. [ 12 ] Applying the principles of Sault Ste Marie , there is nothing in my view to suggest that

section 151(

a) is an absolute liability offence. Therefore, it is a strict liability offence. [ 13 ] I raised this with Cst Brehmer and Mr. Carr and invited submissions on whether

section 151(

a) applied to a driver who unintentionally changes lanes when it was unsafe to do so and it affected the travel of the vehicle to his left. [ 14 ] I received a submission from Mr. Carr, but not Cst Brehmer. The cases Mr. Carr cites, although in a civil context, support the Court being required to find an intention on the offending driver to change lanes before he or she can be found guilty under

section 151(a). [ 15 ] As I found that Mr. Fitzgerald did not intend to change from his lane of travel to the lane on his left, but did so unintentionally, I therefore find him not guilty. _______________________ H. W. Gordon Judicial Justice