R. v. Tomlinson Date:, 2014 BCPC 336

Citation: R. v. Tomlinson Date: 20140227 2014 BCPC 0336 File No: AH72258083 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Leslie Rodney TOMLINSON REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for Crown : Cst Andrew Burn

Acting on his own behalf Leslie R. Tomlinson Place of Hearing: Duncan , B.C. Dates of Hearing: September 18, November 29, 2013 Date of Judgment: February 27, 2014 Introduction [ 1 ] In a case of discontented neighbours, Mr. Tomlinson is charged on March 16, 2013 with driving without due care and attention contrary to section 144(1)(

a) of the Motor Vehicle Act . [ 2 ] Section 144 (1) provides: a. Careless driving prohibited b. 144

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

a) without due care and attention, 1. … The Evidence [ 3 ] The incident which resulted in this charge took place on a quiet no exit semi-rural residential street, Boundary Road, in Lake Cowichan. Boundary Road is a fairly wide paved roadway with a wide gravel shoulder on each side, and a cement sidewalk beyond the shoulder on one side. Most homes have hedges or fences lining the street beyond the shoulder / sidewalk. [ 4 ] The incident took place on a sunny day in late afternoon on March 16, 2013. [ 5 ] Wendy Elliott gave evidence that she was in her garden at the front of her house.

She heard a girl screaming and when she investigated, the scream came from a vehicle parked in the driveway of a neighbour across the street and over a couple of houses. She says she saw a man touching a young girl inappropriately in the back seat of the vehicle. She walked up the street to be closer and came across a man walking a dog. [ 6 ] The man inquired what was going on. Ms Elliott described what she thought was happening. Ms. Elliott concluded the man in the back seat with the young girl was being inappropriate with her and she was resisting. [ 7 ] She testified, that shortly after, the accused, Mr.

Tomlinson, exited his house, screaming. He jumped in his vehicle, a white- coloured Cavalier, reversed out of the driveway very quickly, with a back door still open, spinning wheels and causing gravel to fly. He reversed across the road as he made the turn out of the driveway onto the paved roadway. He then accelerated quickly down the road, causing the door to slam shut. She said there was a stretch of tire marks left by the departing vehicle. [ 8 ] In backing out, Ms. Elliott said, the vehicle nearly hit her and the man walking the dog. [ 9 ] Ms. Elliott has lived in the neighbourhood at least 6 years.

She observes Mr. Tomlinson daily and is familiar with him and his vehicle. She had seen the man in the back seat a few times. [ 10 ] The man walking the dog, Anthony Enston, also testified. He was walking his dog on Boundary Road. He heard a lady at the

side of the road yelling out. He went over to her, listened to her concerns and they both walked into the driveway. She was extremely upset about the safety of a girl in the back seat of a vehicle in the driveway and practically crying. He saw a man and a girl in the back seat. He walked over to the vehicle with the lady and she opened the back door. At that moment, a man came out of the house screaming obscenities. He appeared to be livid, shouting to get off his property. Mr. Enston backed up with the dog to the other side of the street.

The man jumped in the vehicle and it “burned” out of the driveway in reverse and came directly at Mr. Enston. He said the vehicle “came very, very close”. [ 11 ] Ms Elliott’s partner, Rickie Gillie, also gave evidence. He was standing on the balcony of the second storey of their house watching the incident after he heard a commotion. His evidence was confirmatory of the evidence of Ms Elliot and Mr. Enston of seeing the vehicle backing out with tires spinning and gravel flying, and driving very fast down the road.

He also said it appeared to him as if the driver was trying to gain control of the vehicle as it backed out and then proceeded forward. [ 12 ] Mr. Tomlinson gave evidence. He said he had had a hectic day in Duncan. His brother and daughter were at home and they decided they would go out for dinner. He told his brother and daughter to get in the car while he changed his clothes. When he came out he saw Ms Elliott in his yard in an obvious commotion with those in the vehicle. He said he “lost it”.

There had apparently been previous confrontations between them over something that happened years before. [ 13 ] He said he “could not have been more angry”. When he backed up, he overshot the road and backed up too far. He assumed the man with Ms Elliott was her son and thought her son was coming to assault him. Mr. Tomlinson said he had been assaulted by another person with a knife about 6 months earlier and he suffers from anxiety and post-traumatic stress. He says he just flipped out. [ 14 ] He also testified he had good controls as a driver, having had extensive experience as a go-kart driver.

He also testified his vehicle is old and does not have much power to spin the tires. He admitted on cross examination that he was driving erratically but in control. He denied he came that close to either Mr. Enston or Ms Elliott. [ 15 ] Mr. Tomlinson’s daughter, Amber Tomlinson, gave evidence. She was 13 years old at the time of giving evidence. Her evidence was primarily a different description of what took place in the back seat of the vehicle.

I will not detail it as it is not directly relevant to the incident of the driving but does give more background and a different flavour to what caused Ms Elliott to investigate the commotion in the back seat of the vehicle. I will just say that she described it as a tussle over fastening her seatbelt rather than anything inappropriate. [ 16 ] Finally, Mr. Tomlinson’s brother, Steven Tomlinson, gave evidence. His testimony, like his niece’s, was directed more to what took place in the back seat than the driving. On the latter, he was essentially confirmatory of his brother’s description of what took place.

Analysis [ 17 ] On consideration of all of the evidence, I find that Mr. Tomlinson was in a rage after finding Ms. Elliott in his driveway. He viewed it as further harassment of previous confrontations. In that rage, he backed out of his gravel driveway with his foot hard on the gas pedal which caused his tires to spin and gravel to fly. He knew that the two people that had been in his driveway had backed out onto the roadway. The manner in which he backed up caused the vehicle to back up farther across the roadway than he may have intended and with less control. [ 18 ] In driving as he did, he put at risk Mr.

Enston’s life and safety, and to a lesser degree, Ms Elliott’s life and safety. [ 19 ] The law does not require a driver on the roadway to drive with perfection. The law does require a driver to drive in a manner that is objectively reasonable, having regard to all the relevant circumstances.

Put another way, before a driver can be guilty of driving without due care and attention, his driving must display a marked departure from the standard of care expected of a reasonable person in the same circumstances. [ 20 ] One element that must give colour in considering the standard of care required of a driver is that a motor vehicle can be a lethal or dangerous weapon. That is an important reason why it must be driven with due care.

[ 21 ] If, while in a rage, a driver gets behind the wheel of a vehicle and because of that rage drives a vehicle in a manner that objectively is a marked departure from the standard of care required of a driver, and particularly thereby puts two persons in close proximity at risk of injury or death, that driver is driving without due care and attention. Mr. Tomlinson was aware of where Ms Elliott and Mr. Enston were standing. I find that by reversing erratically and out of control out of his driveway onto the roadway and then moving forward, he came close to hitting one or both of them.

He put the life and safety of these two persons at significant risk. Finding [ 22 ] Therefore for those reason I find that Mr. Tomlinson was driving without due and attention and guilty of the charge under section 144(1)(

a) of the Motor Vehicle Act . _____________________________________ Judicial Justice H. W. Gordon